HVM HOLDINGS, LLC vs. JASON ZIEMAK

Plaintiff HVM Holdings, LLC filed its unverified complaint on October 27, 2008, seeking 1) to quiet title, pursuant to G. L. c. 240, § 6, to property owned by it and located at 845 Route 28, Harwich (“Plaintiff Property”), 2) to try title, pursuant to G. L. c. 240, § 1, to Plaintiff Property, 3) a declaratory judgment, pursuant to G. L. c. 231A, § 1, relative to title to Plaintiff Property, and 4) trespass by Defendant Jason Ziemak on Plaintiff Property. [Note 1] A case management conference was held on January 7, 2009. Defendant filed his Answer and Counterclaim on March 19, 2009, alleging adverse possession for a portion of Plaintiff Property (the “Disputed Area”). Plaintiff filed its Answer to counterclaim on March 27, 2009. A pre-trial conference was held on July 7, 2010, and a trial was scheduled for August 18 and 19, 2010, then rescheduled for October 21 and 22, 2010. [Note 2] A site view and the trial at the Orleans District Court were held on October 21, 2010. Plaintiff and Defendant filed their post-trial briefs on December 30 and 31, 2010, respectively, and at that time the matter was taken under advisement.

Testimony for Defendant was given by Loretta Adams (“Adams”) (prior owner of Defendant Property), Betsy Coleman (“Coleman”) (relative of prior owner of Defendant Property), and Jason Ziemak (Defendant). Plaintiff did not present any witness testimony except the Deposition of Debra Bassett (“Bassett”). [Note 3] There were thirty-three exhibits submitted.

Based on the sworn pleadings, the evidence submitted at trial, and the reasonable inferences drawn therefrom, I find the following material facts:

1. Plaintiff purchased Plaintiff Property by deed from R. Margaret Barber, Trustee of Family Realty Trust dated September 28, 2007, and recorded with the Barnstable County Registry of Deeds (the “Registry”) at Book 22371, Page 60.

2. Defendant purchased property located at 841 Route 28, Harwich (“Defendant Property”) by deed from Loretta A. Adams, individually and as Executrix of the Estate of Joseph G. Baker, dated September 22, 2003, and recorded with the Registry at Book 17683, Page 148. [Note 4] Defendant Property is shown on plan titled “Plan of Land in Harwich, MA Prepared for Loretta Adams” prepared by Moran Engineering, Inc. and dated July 24, 2003 (the “2003 Plan”). The eastern boundary of Defendant Property and the western boundary of Plaintiff Property abut. [Note 5]

3. The Disputed Area is a part of Plaintiff Property. It runs along the entire eastern boundary of Defendant Property, comprises approximately 12,200 square feet, and measures approximately thirty-five feet wide by 348 feet long. [Note 6] The Disputed Area is predominately wooded, [Note 7] but also contains a two-door garage (the “Garage”) and a shed (the “Shed”) roughly twenty-five feet south of the Garage. [Note 8] Both structures date back to at least 1960. Defendant’s driveway starts at the southern of the two Garage doors, heading west immediately behind Defendant’s house, then north along the western boundary of Defendant Property until it terminates at Route 28. [Note 9] The Shed’s entrance also faces Defendant Property. The Garage and the Shed are located 5.8 and 13.4 feet from the eastern boundary of Defendant Property, respectively. A stone retaining wall borders a portion of the driveway on the south and extends partially along the southern boundary of the Garage. [Note 10] Defendant installed a wooden trellis fence parallel to a stretch of the retaining wall after he purchased Defendant Property.

4. Joe ran a lawn mower repair business on Defendant Property, and stored lawn mowers and related equipment in both the Shed and the Garage. This business operated continuously from approximately 1960 until just prior to Joe’s death in 2002. When Defendant first visited Defendant Property in late 2002 and after he purchased it, he observed that the Garage and Shed both contained various lawn mower parts and associated tools, and that discarded parts were also present around the Garage and Shed and in the area between the two structures.

5. Both Adams and Coleman testified that Joe chopped wood on Defendant Property for his own use, which he stored in piles on the western side of Defendant Property, opposite the Garage. He had wood brought in by truck, and on at least one occasion he cut down a tree at the front of Defendant Property, but it was not in the Disputed Area. Neither Adams nor Coleman had any recollection of Joe selling wood to third parties. Defendant stated that he noticed several old piles of chopped wood in the Disputed Area when he initially visited Defendant Property.

7. Plaintiff has never given Defendant permission to use the Disputed Area or any other part of Plaintiff Property.

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Defendant argues that he has obtained title to the Disputed Area by adverse possession. Plaintiff argues that Defendant has not satisfied the elements of adverse possession. To establish title by adverse possession, Defendant carries the burden to prove “nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964). If any of the elements remain unproven, the party claiming adverse possession cannot prevail. Mendonca v. Cities Service Oil Co. of Pa., 354 Mass. 323 , 326 (1968). I shall address the various elements in turn.

I. Actual Use.

In determining whether use is “actual,” in context of a claim of title by adverse possession, “[a] judge must examine the nature of the occupancy in relation to the character of the land.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993) (citing Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)). The adverse possessor’s acts should demonstrate “control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 491 (1938). “[T]he nature and extent of occupancy required to establish a right by adverse possession vary with the character of the land, purposes for which land is adapted, and uses to which the land has been put.” Id.

Parties claiming adverse possession of woodland generally must establish that the woodland has been enclosed or reduced to cultivation. Senn v. Western Mass. Elec. Co., 18 Mass. App. Ct. 992 , 993 (1984). Any enclosures must indicate the boundaries with “substantial certainty” and the acts must be sufficient to show “actual occupancy” of the woodland. Dow v. Dow, 243 Mass. 587 , 593 (1923). Nevertheless, making such a determination is an inherently fact-specific process. Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004).

A. The Garage and the Shed.

The evidence indicates that Joe used the Garage and Shed from approximately 1960 to 2002. Adams and Coleman both testified that subsequent to Joe’s purchase of Defendant Property in 1958, the Garage and the Shed were in continuous use for his lawn mower business until just prior to his death in 2002. During that time span, the record also shows that Joe’s minor family members and relatives frequently played in the driveway directly in front of the Garage, which space was part of the Disputed Area. [Note 11] Defendant testified that discarded lawn mower parts were found in and around the Garage and the Shed at the time he purchased Defendant Property. The Shed also contained two old lawnmowers, fully intact, when Defendant first examined it. Although none of the witnesses recalled seeing Joe actually enter the Shed or use it for storage, Coleman testified that Joe had told her that he used it for storing his tools. Joe’s statement regarding the Shed, as the declaration of a deceased person, see supra note 4, is a valid exception to the hearsay rule because it was made in the absence of bad faith and on Joe’s personal knowledge of his repair business. See G. L. c. 233, § 65. All of these facts regarding the Shed’s contents and condition at the time of Defendant’s purchase necessarily lead to the inference that Joe used it in conjunction with the Garage for his lawn mower business. Moreover, the Shed is located approximately twenty-five and fifty feet from the Garage and Defendant’s house, respectively. Its entrance faces toward Defendant Property, further strengthening its association with Joe’s repair business. As such, I find that Defendant has established actual use of both the Garage and the Shed.

B. Remainder of the Disputed Area.

The use of the remainder of the Disputed Area is harder to determine. Defendant testified that when he purchased Defendant Property, old lawn mower parts were unearthed in the area between the Garage and the Shed, and roughly ten feet from the northern side of the Garage. Assuming, arguendo, that they were associated with Joe’s repair business, nothing else in the record indicated when Joe might have discarded them or on how many occasions such disposals took place. The mere discovery of these abandoned parts alone does not permit an inference that Joe made actual use of the area where they were found for his lawn mower business. Also, none of the evidence suggests that Joe walked through the Disputed Area from the Garage to the Shed or vice-versa. Rather, based on the position of their entrances, see supra, a greater likelihood exists that he accessed both the Garage and the Shed directly from Defendant Property.

South of the Shed, the Disputed Area is covered by trees, and nothing in the record indicated any use of that space prior to Defendant’s purchase. Defendant testified as to a path in that area, but there was no evidence of its existence or use contemporaneous with Joe’s lawn mower repair operations. [Note 12] Similarly, the portion of the Disputed Area between the Garage’s north side and the street (Route 28) is mostly wooded, and the record did not reveal any use of that area by Defendant’s predecessors. There was evidence of flower plantings next to Defendant’s house, but the house appears to be eight to ten feet from the boundary line and nothing in the record indicates that the plantings extended into the Disputed Area. [Note 13] Coleman testified that Joe mowed the lawn in front of Defendant Property, but the corresponding portion of the Disputed Area has tree cover, not grass. [Note 14] Adams and Coleman both testified that Joe also cut wood on his property, but the evidence indicated that the wood was stored on the western side of Defendant Property, not near the Disputed Area. Otherwise, no evidence showed any cultivation or improvement of the Disputed Area, and Joe never enclosed it. Finally, although Defendant testified as to his use of most of the Disputed Area, that use only began in 2003. [Note 15] Accordingly, I find that Defendant has not established actual use of the unimproved sections of the Disputed Area.

II. Open and Notorious Use.

The open and notorious requirement “‘is intended only to secure to the owner [of the affected land] a fair chance of protecting’ his or her property interests.” Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007) (quoting Foot v. Bauman, 333 Mass. 214 , 218 (1955)). For a use to be found open, it “must be without attempted concealment.” Boothroyd, 68 Mass. App. Ct. at 44. The notorious requirement is met where the use is “sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Id.

A. The Garage and the Shed.

Nothing in the record indicates that Joe made any attempt to conceal his use of the Garage and the Shed for his lawn mower repair business. Although the Disputed Area is wooded except for the area of the two structures, the Shed and the Garage would be visible from Plaintiff Property, even with some tree cover present. Furthermore, Joe carried on his business for over four decades, which included accessing the Garage from Route 28 via the driveway. Joe’s use of the Garage and Shed was “sufficiently pronounced” such that a reasonable landowner exercising ordinary diligence could have discovered it. As such, I find that Defendant has demonstrated open and notorious use of the Garage and the Shed.

B. Remainder of the Disputed Area.

The record failed to disclose any evidence amounting to actual use of the Disputed Area aside from the Garage and the Shed. Also, none of Joe’s acts in the Disputed Area, except those concerning the two structures, were sufficient to put even the most attentive landowner on notice that he was making any use of it. To the extent that Joe actually conducted any landscaping, planting, or woodcutting, he did so at a considerable distance from the Disputed Area. Moreover, given that in 2003 Defendant was the first to discover the discarded lawn mower parts in the space between the Garage and the Shed, it is difficult to imagine that Joe’s neighbors on Plaintiff Property at the time would have noticed them. In light of these circumstances, I find that Defendant has not shown open and notorious use of the remainder of the Disputed Area.

III. Continuous Use for Twenty Years.

In Massachusetts, a party making a claim of adverse possession must demonstrate uninterrupted use of the disputed property for the minimum twenty year statutory period. MacDonald v. McGillvary, 35 Mass. App. Ct. 902 , 903 (1993). See also G. L. c. 260, §§ 21, 22. “‘[S]poradic use’” will fail to satisfy this requirement unless the acts are “sufficiently pervasive to amount to adverse possession.” Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 540 (1996). “The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” LaChance, 301 Mass. at 490.

A. The Garage and the Shed.

The evidence is that Joe used the Garage and the Shed for his lawn mower repair business from at least 1960 until just before his death in 2002, easily meeting the twenty year minimum requirement. Nothing in the record suggests that his use of the structures was anything but continuous during this time, or that it was disrupted by the true owner bringing an action in ejectment or retaking possession. As such, I find that Defendant satisfied the element of continuous use for the twenty year period with regards to the Garage and the Shed.

B. Remainder of the Disputed Area.

Joe did not even make “sporadic” use of the remainder of the Disputed Area, however, because all his other activities were strictly limited to the space within Defendant Property. Although Defendant identified lawn mower parts and tools partially buried in the Disputed Area after he took possession in 2003, prior to that time it is impossible to ascertain who initially discarded them or how long they were present in the Disputed Area, absent any other relevant evidence. Defendant’s activities in the Disputed Area subsequent to purchasing the property and before this action was brought, assuming arguendo that they constituted open and actual use, took place for at most five years. Accordingly, I find that Defendant has not shown any continuous use of the unimproved portion of the Disputed Area satisfying the twenty year requirement.

IV. Exclusive Use.

Exclusive use is established where it “encompass[es] a ‘disseisin’ of the record owner.” Peck, 34 Mass. App. Ct. at 557. To establish exclusive use, the claimant must show use of the disputed area to the “exclusion not only of [the record] owner but of all third persons to the extent that the owner would have excluded them.” Id. “Acts of enclosure or cultivation are evidence of exclusive possession.” Labounty v. Vickers, 352 Mass. 337 , 349 (1967).

The extent of the record is that Joe used the Garage and Shed for his lawn mower repair business without any interference from the true owner or third parties. He did not, however, conduct activities in the remainder of the Disputed Area that would amount to dispossessing the true owner, such as building a fence or making substantial improvements. Instead, all the gardening and wood chopping, whether or not they would have satisfied the other elements of adverse possession, took place strictly within the confines of Defendant Property. As such, I find that Defendant has established exclusive use of the Garage and the Shed, but not the unimproved remainder of the Disputed Area.

V. Adverse or Hostile Use.

“[P]ermissive use is inconsistent with adverse use.” Ryan, 348 Mass. at 262. “The essence of nonpermissive use is lack of consent from the true owner.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). “Whether a use is nonpermissive depends on many circumstances, including the character of the land, who benefited from the use of the land, the way the land was held and maintained, and the nature of the individual relationship between the parties claiming ownership.” Id. A presumption of nonpermissiveness exists where the use of the land is actual, open, and exclusive for a period of twenty years. Id. at 146. To prove the adverse nature of a claim, a possessor must demonstrate “such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” LaChance, 301 Mass. at 491.

Because Joe’s use of the Garage and the Shed satisfied the remaining elements of adverse possession, such use is also presumed to have been nonpermissive. [Note 16] The evidence, however, was insufficient to establish any use, permissive or nonpermissive, of the unimproved portion of the Disputed Area. [Note 17] In light of these circumstances, I find that Defendant has demonstrated adverse use of the Garage and the Shed, but not the unimproved remainder of the Disputed Area.

As a result of the foregoing, I find that Defendant has acquired the Garage by adverse possession, accompanied by the portion of the driveway in the Disputed Area. I also find that Defendant has also established adverse possession as to the Shed, along with a walking path to cover the 13.4 foot distance from Defendant Property to the Shed’s entrance. I do not find that Defendant has proved adverse possession of any other portion of the Disputed Area. I attach a sketch of the Disputed Area with the area obtained by Defendant outlined in yellow.

Defendant shall prepare a recordable plan of the area obtained by adverse possession and shall record such plan within sixty days of the date of this decision. [Note 18]

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: July 21, 2011