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. 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. A decision of today’s date has been issued.

In accordance with that decision, it is:

ORDERED and ADJUDGED that Defendant has established actual use of both the two-door garage (the “Garage”) and the shed twenty-five feet south of the Garage (the “Shed”) in the Disputed Area.

ORDERED and ADJUDGED that Defendant has not established actual use of the unimproved sections of the Disputed Area.

ORDERED and ADJUDGED that Defendant has demonstrated open and notorious use of the Garage and the Shed.

ORDERED and ADJUDGED that Defendant has not shown open and notorious use of the remainder of the Disputed Area.

ORDERED and ADJUDGED that Defendant satisfied the element of continuous use for the twenty year period with regards to the Garage and the Shed.

ORDERED and ADJUDGED that Defendant has not shown any continuous use of the unimproved portion of the Disputed Area satisfying the twenty year requirement.

ORDERED and ADJUDGED that Defendant has established exclusive use of the Garage and the Shed, but not the unimproved remainder of the Disputed Area.

ORDERED and ADJUDGED that Defendant has demonstrated adverse use of the Garage and the Shed, but not the unimproved remainder of the Disputed Area.

ORDERED and ADJUDGED that Defendant has acquired the Garage by adverse possession, accompanied by the portion of the driveway in the Disputed Area.

ORDERED and ADJUDGED 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.

ORDERED and ADJUDGED that Defendant has not proved adverse possession of any other portion of the Disputed Area.

ORDERED and ADJUDGED that Defendant shall prepare a recordable plan of the area obtained by adverse possession, as described in the attached drawing, and shall record such plan within sixty days of the date of this decision. [Note 2]

By the court. (Sands, J.)