Home NORA, LLC vs. JOAN I. GELCH, 1236 BEACON STREET LIMITED PARTNERSHIP, SYROOS SANIEOFF, TRUSTEE OF THE ST. PAUL STREET REALTY TRUST, RITA BARTH, TRUSTEE OF THE 182 ST. PAUL STREET REALTY TRUST, and LILLIAN M. LEE, TRUSTEE OF THE LILLIAN M. LEE IRREVOCABLE TRUST

MISC 06-319094

July 12, 2011

Sands, J.

JUDGMENT

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Plaintiff filed its verified Complaint on February 22, 2006, involving a dispute over rights in a passageway (the “Easement”) located off St. Paul Street in Brookline, Massachusetts, and alleging that the actions of Defendants Joan I. Gelch (“Gelch”), Syroos Sanieoff, Trustee of St. Paul Street Realty Trust (the “Sanieoff Trust”), Rita Barth, Trustee of 182 St. Paul Street Realty Trust (the “Barth Trust”), 1236 Beacon Street Limited Partnership (“1236 LP”) (together, “Defendants”), and Lillian M. Lee, Trustee of Lillian M. Lee Irrevocable Trust (the “Lee Trust”), in parking on the Easement violate the Easement and constitute a trespass and a nuisance by Defendants. [Note 1] Plaintiff also filed a Motion for Preliminary Injunction, seeking to prohibit Defendants' parking in the Easement, which this court (Lombardi, J.) denied on March 6, 2006. Gelch, Sanieoff, and Barth filed an Answer and Counterclaim on March 17, 2006, and Plaintiff filed its Answer to such Counterclaim on March 20, 2006. A case management conference was held on May 10, 2006. 1236 LP filed an Answer and Counterclaim on May 29, 2007, also alleging prescriptive rights for parking and proposing a new location of the Easement (set forth in a plan titled “Easement Plan of Land,” dated January 8, 2008 and prepared by Daylor Consulting Group (the “2008 Plan”)), and Plaintiff filed its Answer to such Counterclaim on May 24, 2007.

On August 22, 2007, Gelch, Sanieoff, and Barth filed their Motion for Summary Judgment on all counts of the Complaint and the Counterclaim, and for Attorney’s Fees Pursuant to G. L. c. 231, § 6F. On the same day 1236 LP filed its Motion for Summary Judgment. Plaintiff filed its Opposition on September 28, 2007. Such motions were denied by this court (Lombardi, J.) on October 4, 2007. On October 5, 2007, Count II of the Complaint (nuisance) was dismissed pursuant to Mass. R. Civ. P. 12(h)(3).

Gelch, Sanieoff, and Barth filed an Amended Counterclaim on March 5, 2008, alleging the right to relocate the Easement as well as prescriptive parking rights on the Easement, and Plaintiff filed its Answer to Amended Counterclaim on March 10, 2008. [Note 2] Gelch, Sanieoff, and Barth filed a second Motion for Summary Judgment on July 7, 2008, together with supporting memorandum, Concise Statement of Material Facts, and Supplemental Appendix. [Note 3] On July 9, 2008, Plaintiff filed an Opposition, together with supporting memorandum, Appendix, and Affidavit of Faisal. A hearing was held on Gelch, Sanieoff, and Barth’s Motion for Summary Judgment on November 26, 2008. [Note 4] A decision was issued on December 8, 2009, in which Defendants’ Motion for Summary judgment was DENIED.

Plaintiff filed an Amended Complaint on March 1, 2010. Barth filed her Answer on March 10, 2010; Gelch filed her Answer on March 12, 2010; and 1236 LP filed its Answer and Counterclaim on March 15, 2010. A pre-trial conference was held on August 17, 2010. A site view was held on December 17, 2010, and the trial was held on December 16 and December 17, 2010, at the Land Court in Boston. Plaintiff and Barth filed Post-Trial Memoranda on February 4, 2011 and Gelch and 1236 LP filed Post-Trial Memoranda on February 7, 2011, and at that time the matter was taken under advisement. A decision of today's date has been issued.

In accordance with that decision, it is:

ORDERED and ADJUDGED that although Defendants do not hold a specific deeded right to park or place trash bins on the Easement, this practice does not unreasonably interfere with Plaintiff's use of the Easement for access to Plaintiff's property.

ORDERED and ADJUDGED that Defendants have established a prescriptive right to park and place trash bins on the Easement.

ORDERED and ADJUDGED that the 2008 Plan satisfies the requirements of M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 90 (2004), that the Easement shall be relocated in accordance with the 2008 Plan, and that Defendants shall record the 2008 Plan at the Norfolk Registry of Deeds. [Note 5]

ORDERED and ADJUDGED that Defendants did not trespass by parking on the Easement.

ORDERED and ADJUDGED that Plaintiff is not entitled to any damages.

By the court. (Sands, J.)

FOOTNOTES

[Note 1] Lee was defaulted pursuant to Mass. R. Civ. P. 55(a) on November 26, 2008 and did not participate in this action.

[Note 2] The Amended Counterclaim seeks a declaratory judgment as to the relocation of the Easement for purposes of parking and/or rubbish storage.

[Note 3] Gelch, Sanieoff, and Barth’s second Motion for Summary Judgment stated that it was only for Count I of the Amended Counterclaim (right of relocation of the Easement) and for the trespass count in the Complaint.

[Note 4] 1236 LP did not file a second motion for summary judgment, but appeared for oral argument where it stated its support for the motion of Gelch, Sanieoff, and Barth.

[Note 5] Plaintiff argues that because Section C is being reduced in size, rather than moved, that the M.P.M. Builders test does not permit the proposed alterations to Section C. M.P.M Builders adopts § 4.8 (3) of the Restatement of Property in setting forth the necessary conditions under which “the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement.” Id., 442 Mass. at 90 (quoting Restatement (Third) of Property (Servitudes) § 4.8 (3) (2000) (emphasis added). This court is not aware of any cases dealing specifically with re-sizing an easement, and admits that the phrase “location or dimensions” is vague with respect to a servient owner’s ability to change an easement’s size. Nevertheless, this court concludes that the term “dimensions,” as stated in the Restatement and M.P.M Builders, includes the size of the easement. Accordingly, since reducing Section C’s size will not burden or frustrate Plaintiff’s ability to access Plaintiff’s property for the reasons discussed above, Defendants are entitled to alter Section C as proposed in the 2008 Plan without Plaintiff’s consent, pursuant to M.P.M. Builders.