PATRICIA CHEW v. FRANCIS P. KWIATKOWSKI, TRUSTEE OF THE FPK REALTY TRUST

INTRODUCTION

Plaintiff and Defendant are record owners of abutting parcels of land in the Town of Hanover, Massachusetts. Plaintiff seeks in her complaint to acquire title to a certain portion of Defendant’s property under the doctrine of adverse possession, contending that she and her predecessors in title have used and occupied the disputed portion of the Defendant’s land for many years. Plaintiff’s claimed use of the Defendant’s property includes the storage of dilapidated automobiles and other assorted equipment. The Defendant filed an answer denying that Plaintiff’s use entitles her to a judgment that she has acquired title, and also asserting three counterclaims.

PROCEDURAL HISTORY

This action was commenced by the Plaintiff on June 11, 2001, seeking a declaratory judgment pursuant to G. L. c. 231A that she has acquired title to the disputed portion of Defendant’s property by adverse possession. In his answer, filed on June 28, 2001, the Defendant denies Plaintiff’s claim and asserts three counter-claims against the Plaintiff, namely (1) abuse of process; (2) violation of G. L. c 93A; and (3) nuisance. [Note 1]

The parties were referred to alternative dispute resolution by the court at a case management conference on December 5, 2001. After nearly five years, and due to the inability or unwillingness of the parties to resolve their differences, both parties moved to have the case returned to the active trial list on November 20, 2006. However, due to illness of witnesses and parties, the case remained inactive for several years. Finally, Defendant filed a summary judgment motion in this case on March 17, 2009. On April 17, 2009, the Plaintiff filed a cross-motion for partial summary judgment. Both parties subsequently filed motions to strike several affidavits attached to each others’ motions. Following a hearing, and after considering the arguments of counsel and the voluminous records filed by the parties, the court denied the motions for summary judgment on June 22, 2009, ruling that the case was not ripe for summary judgment because too many issues of material fact remained, especially in view of the type of evidence required to establish adverse possession.

A trial was initially scheduled for this matter on November 17, 2009 but had to be postponed due to illness. Finally, a three day trial was held on April 8, 2010, April 9, 2010 and April 14, 2010. The trial testimony was recorded and reported by a duly appointed court stenographer, and twenty-two exhibits, some with multiple parts, were admitted into evidence. Both the Plaintiff and Defendant filed their post-trial briefs on July 9, 2010.

BACKGROUND

On all the testimony, exhibits and other evidence properly introduced at trial or otherwise before me, and based also on the reasonable inferences I draw therefrom, and taking into account the pleadings, memoranda and arguments of the parties, I find the following facts.

The Plaintiff’s property is located at 200 King Street, Hanover, Massachusetts (The Property” or “the disputed area”) and abuts the Defendant’s property. Joseph Tedesco (“Tedesco Sr.”) is the Plaintiff’s predecessor in interest, having acquired the Property by deed dated March 11, 1974 and recorded on March 12, 1974. [Note 2] Thus, the relevant time frame for the twenty year statutory period for an adverse possession claim is from March 12, 1974 to at least March 12, 1994. Tedesco Sr. transferred the property to the Plaintiff for one dollar on September 27, 1999. The Plaintiff allowed, and continues to allow, Tedesco Sr. to use the property rent-free. Tedesco Sr. pays all the expenses related to the property and, for all intents and purposes, it is he who owns and controls the property. The Defendant’s property, which he purchased from “Bunny” Parks on November 1, 1995, is located at One Industrial Way, Hanover, MA. A “Decision Sketch” showing the location of the disputed area and surrounding property is attached hereto.

Shortly after his purchase, Tedesco Sr. began putting equipment, cars and other “junk” on the disputed portion of what is now the Defendant’s property. One part of the disputed portion of the Defendant’s property is occupied by a concrete pad that was allegedly used by Tedesco Sr. for the storage of equipment. The Plaintiff presented several witnesses in addition to Tedesco Sr., including Christian Heinis (“Heinis”), Joseph Tedesco, Jr. (“Tedesco Jr.”), Albert Cavanaugh (“Cavanaugh”) and Philip Lukas (“Lukas”), all of whom testified that during their occasional visits to the property during the relevant period, they saw various pieces of equipment and cars being stored there.

DISCUSSION

“Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Ryan v. Stavros, 348 Mass. 251 , 262 (1964); G. L. c. 260, § 21. The burden of proving adverse possession is on the person seeking title thereby. Lawrence, supra, citing Holmes v. Johnson, 324 Mass. 450 , 453 (1949). In the absence of “clear proof” of each element, the true owner will not be barred of his rights to the property (emphasis added). Cook v. Babcock, 65 Mass. 206 , 210 (1853).

I. CREDIBILITY OF THE WITNESSES.

The credibility of witnesses at trial is a relevant consideration when determining whether the Plaintiff has met her burden of proof. Credibility questions are for the trier of fact to resolve. In Re Antonelli, 429 Mass. 644 , 648 (1999), citing DeMoulas v. DeMoulas Super Mkts., 424 Mass. 501 , 509-510 (1997). “[A]ll cases in the Land Court shall be tried and all questions of fact finally determined by the court . . . (emphasis added).” G. L. c. 185, § 15.

The testimony presented by the Plaintiff to the court contained several inconsistencies. These inconsistencies raise questions as to the credibility of the testimony, and therefore prevent the Plaintiff from establishing with “clear proof” the elements of her adverse possession claim. See Cook, supra. By way of example, the court looks to the following instances of inconsistency in Tedesco Sr.’s testimony: (1) at a deposition, Tedesco Sr. testified that he never spoke with Defendant Kwiatkowski about the use of the disputed parcel, but at trial Tedesco Sr. testified and admitted that he had received a “no trespass order” from Defendant Kwiatkowski and spoke with Defendant about taking possession of the disputed parcel; (2) at his deposition, Tedesco Sr. testified that he removed the 1957 Lincoln from the disputed parcel in 1988, but at trial he testified the Lincoln was there from 1975 until 1995; (3) at his deposition, Tedesco Sr. testified he began storing vehicles on the disputed parcel in 1975, one year after he acquired his own parcel, but at trial, Tedesco Sr. testified he began storing vehicles immediately after he acquired the property; and (4) at trial Tedesco Sr. denied that Heinis had ever worked for him at 200 King Street, but Heines himself testified that he began working for Tedesco Sr. in 1985 or 1986.

The testimony provided by the Plaintiff’s witnesses, other than Tedesco Sr., was likewise inconsistent; for example; (1) in an affidavit, Heinis, an emergency room physician, stated he visited the property regularly from the early 1980's until 2001, but at trial he testified he attended UMass-Lowell from 1990-1995, Chicago Medical School from 1995 to 2000, and that he began his residency in New York thereafter; (2) Lukas testified that the 1957 Lincoln was moved from place to place within the disputed area, but Tedesco Sr. testified it was stored on cinder blocks and never moved; (3) Joe Tedesco Jr., testified that he remembered in detail his father’s activities on the property in 1974 and 1975, when he was seven or eight years old, but could not recall, with significant detail, conversations with his father in 2000 to 2001 regarding this adverse possession claim; and (4) during trial, Tedesco Jr. first testified that Tedesco Sr. only used half the concrete pad, then later changed his testimony to indicate that his father used the entire concrete pad.

These and other inconsistencies in the testimony presented by the Plaintiff raise serious concerns in the opinion of the court as to the credibility of the witnesses and the reliability of their testimony. The credibility concerns of the court cannot be reconciled with the “clear proof” standard with which the elements of adverse possession must be proven by the Plaintiff. See Cook, supra. Cf. Everett v. Tavares, 18 LCR 235 , 238-239 (2010) (plaintiffs argued credibility of the defendant was an issue and, therefore, that his testimony was insufficient to support an adverse possession claim, but plaintiff provided no evidence challenging defendant’s credibility). In any event, even if the Plaintiff’s witnesses were entirely credible, the court is not convinced the she was able to satisfy all the elements of adverse possession.

II. ELEMENTS OF ADVERSE POSSESSION.

The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. See Holmes, supra. If any of the elements remains unproven or left in doubt, the claimant cannot prevail. Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). To succeed, the claimant must establish changes upon the land that constitute “such control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.” Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). The courts will generally look to whether the claimant made some permanent improvement to the land or significant change to the land itself. Id.

a. Open and Notorious.

Testimony at trial showed that the Plaintiff’s use of the disputed parcel was open and notorious. “Open and notorious use of a property is ... deemed to place the true owner on constructive notice of such use, and it is immaterial whether the true owner actually learns of that use of not.” Lawrence, supra at 422. The true land owner does not have to subjectively know of the adverse possessor’s use, but the possessor’s use must be sufficient to put the true owner on notice that the possessor is asserting rights to the property. Ottavia v. Savarese, 338 Mass. 330 , 333 (1959).

There was testimony at trial that over the relevant period for the adverse possession claim, Tedesco Sr. parked several vehicles on the disputed parcel from the mid-1980's through the late early 1990's. The vehicles testified to by Tedesco Jr. were a 1957 black Lincoln, a 1967 Firebird, a black Lincoln convertible, a Pontiac Tempest, and a Studebaker. In addition to the automobiles, there was testimony that the Plaintiff stored other pieces of equipment on the disputed parcel at various times during the relevant time period. The court is convinced that the use of the disputed parcel in this manner is sufficient to put the Defendant on notice that the Plaintiff was using the disputed parcel for his own purposes. The failure of the evidence to definitively show continuous use of the disputed parcel by the Plaintiff for the twenty year statutory period is a matter better suited for the discussion of that particular element and will be discussed later. Here, the evidence was sufficient to show the Plaintiff used the disputed parcel openly and notoriously.

b. Continuous.

Evidence, both physical and testimonial, presented at trial by the Plaintiff does not reflect that the Plaintiff adversely possessed the disputed parcel continuously for the entire twenty year statutory period. The adverse possession of the dispute property must be continuous throughout the twenty year statutory period as required by G. L. c. 260, § 21. A claim for adverse possession does not require that the property be used for a single purpose for the entire statutory period. Lebel v. Nelson, 29 Mass. App. Ct. 300 , 302 (1990). However, the finder of fact must determine whether “the adverse possession has been continuous or has been interrupted.” Bowen v. Guild, 130 Mass. 121 , 124 (1881). The adverse possessor’s actual use and enjoyment of the property must be as the average land owner of similar property would use and enjoy that property. Shaw v. Solari, 8 Mass. App. Ct. 151 , 156 (1979), quoting 3 Am. Law of Property § 15.3, at 765-766 (1974). Acts of possession that are “few, intermittent or equivocal” will not suffice to prevail upon an adverse possession claim. Parker v. Parker, 1 Allen 245 , 247 (1861).

On the Plaintiff’s behalf, Robert Tedesco, Tedesco Sr.’s brother, testified that he had helped Tedesco Sr. move equipment on and off the concrete pad from almost immediately after Tedesco Sr. purchased the property until 1979. After 1979, Robert Tedesco went to the property approximately six times a year until 1989, two or three time a year from 1989 to 1991, and occasionally until 2001. During these visits, Robert Tedesco said that there was always equipment on the concrete pad. Robert Tedesco initially testified that while he worked with his brother, they would work seven days a week if need be. However, on cross-examination, he conceded that they did not routinely work weekends. The inconsistencies in Robert Tedesco’s testimony allow the court to conclude that his testimony was “inclined” to support his brother’s possession claim. This inference weakens the reliability of what Robert Tedesco saw on the concrete pad when he visited the property, and the number of occasions on which he did so.

Tedesco Sr.’s deposition testimony and trial testimony were substantially inconsistent in many areas. At his deposition, he testified that he had never had any problems with the town regarding the use of his property, but at trial he acknowledged that he was served with no fewer than six notices of trespass, noncompliance, and enforcement violations. Also at his deposition, Tedesco Sr. testified that he never had any problems with the Defendant regarding the use of the Defendant’s property, denying he ever spoke with the Defendant about the use of the disputed parcel. Tedesco Sr. testified at trial, however, that he had a conversation with the Defendant in which the Defendant told Tedesco Sr. that “everything on the wall was his now.” The Defendant himself testified that he had a conversation with Tedesco Sr. about the equipment on the concrete pad, asking Tedesco Sr. if he knew who the equipment belonged to, and that Tedesco Sr. replied that it “was there before [he] purchased [his] property.” The court finds it significant that at first Tedesco Sr. denied ownership of the equipment stored on the concrete pad, but now asserts ownership to support his adverse possession claim.

Tedesco Sr. testified that in 1988, he ceased using the disputed area for long term parking of old automobiles because it was difficult to do since “[n]obody wants them around.” Mr. Tedesco testified that in that same year, he began to occasionally use the disputed area for short term parking. This testimony leads the court to conclude that the long term parking of automobiles on the disputed parcel cannot sustain the continuous element of the Plaintiff’s adverse possession claim. By Tedesco Sr.’s own admission, after 1988 he only occasionally, not continuously, used the disputed parcel for parking, whether for long term or short term parking. The Plaintiff must make a further showing of continuous use of the disputed parcel from 1988 onward to prevail on his adverse possession claim to the disputed parcel.

The older Mr. Tedesco’s son, Joseph, Jr., submitted an affidavit in this case in which he stated under oath that he “spent nearly every weekend, school vacation and summer” with his father and began to visit his father in 1974 “and continued very regularly until about 1993 and sporadically thereafter.” At trial, the younger Mr. Tedesco testified that he did not live with his father, Tedesco Sr., in Hanover, that he lived in Minnesota for approximately a one and a half year period; and that there were instances where he did not visit his father on weekends while attending high school. Tedesco Jr. also testified that he worked after school and on weekends at businesses other than Tedesco Sr.’s. Moreover, Tedesco Jr. is a licensed attorney, and the court cannot believe that during college and law school he had the free time to visit his father’s property as often as he says and to observe equipment on the pad or cars parked on the disputed parcel. During trial, Joseph Jr. first testified that Tedesco Sr. used only half of the concrete pad, but later changed his testimony to indicate that Tedesco Sr. used the entire pad. The questions of credibility and reliability raised as to the testimony given by Tedesco Jr. prevent this court from affording it significant weight to support the “continuous” possession of the disputed parcel by Tedesco Sr.

Cavanaugh’s family owned the property south of Tedesco Sr., and visited Tedesco Sr.’s property approximately once a month. During these visits, Cavanaugh always took notice that there was equipment stored on the concrete pad, and that if the concrete pad was filled, Tedesco Sr. would put equipment in the area north of the pad. Cavanaugh testified that Tedesco Sr.’s practice of storing equipment on the conrete pad continued from 1975 up to 2000, and possibly beyond. At trial, however, Cavanaugh was not able to identify his property in proximity to the Plaintiff’s parcel, or to identify his property’s boundaries. Cavanaugh was also incorrect when he described the distance between the building on his own property from the fence separating the Plaintiff’s property as twenty-five feet instead of one hundred feet. The problems apparent in Cavanaugh’s testimony underscore that it cannot be relied upon to prove that the Plaintiff continuously used the concrete pad on the disputed parcel for the twenty year statutory period. [Note 3]

The Defendant presented two witnesses whose testimony bears on the continuous element of the Plaintiff’s adverse possession claim. The first of these witnesses was Andrew Brydges (“Brydges”). Brydges was a geologist who performed an environmental assessment of the Defendants’ property in late 1993 and early 1994. These dates are within the relevant time period of the Plaintiff’s adverse possession claim. Brydges inspected the Defendants’ property at least four times. The purpose of the site assessment was to identify the presence, or non-presence, of oil or hazardous materials on the property at the time Defendant purchased it in 1995. Brydges did not observe the presence of oil or hazardous materials on the property, nor did he observe any evidence of the disposal of solid waste on the property. According to Brydges, solid waste would have included non-functioning automobiles and automobile related equipment, had they been present. He observed none.

The second witness presented by the Defendant was Lester Garvin (“Garvin”). Garvin is an aerial photograph expert who examined aerial photographs of the disputed area taken on November 15, 1978, March 28, 1979, April 3 1980, March 15, 1987 and March 9, 1990. All of these dates are within the relevant period. After ensuring the accuracy of the property lines in the photographs, Garvin began his review of the aerial photographs. Garvin’s review of the November 15, 1978 photograph showed no vehicles on the Defendants’ property, and further that there was no equipment being stored on the disputed concrete pad. The March 28, 1979 image showed no vehicles on the Defendants’ property, nor any equipment on the concrete pad. The April 3, 1980 picture showed items that could possibly be equipment on the concrete pad. Garvin’s review of the March 15, 1987 photograph also showed some items on the conrete pad. The last photograph taken on March 9, 1990 showed no vehicles on the Defendant’s property, nor any equipment on the concrete pad.

The evidence presented by both the Plaintiff’s and Defendant’s witnesses lead to the conclusion that the use of the Defendant’s property by the Plaintiff and Tedesco Sr. was intermittent and not sustained. The court believes that intermittent use of this nature, in some circumstances, could be considered actual use as an average land owner of similar property would use that property. Due to the lack of credibility and the unreliability of the Plaintiff’s witnesses, however, the court does not believe the Plaintiff has shown with clear proof that her adverse use of the Defendant’s property was continuous. Further, Tedesco Sr.’s testimony was self-serving, plagued by credibility issues, and contradicted by other testimony. Evidence presented at the trial indicates that Tedesco Sr. made various uses of the disputed parcel over the applicable period. These uses, however, do not cumulatively appear to be sufficiently continuous for the entire twenty year statutory period.

c. Exclusive.

At trial, the evidence presented did not clearly prove that the Plaintiff had exclusive possession of the disputed parcel for the entire statutory period. To establish a claim for adverse possession, the possessor must show that they were in exclusive possession of the property. Reams v. Sylvester, 60 Mass. App. Ct. 1117 (2004). “In order to prove exclusive use, the one asserting the claim must effect a disseisin of the record owner, which means ‘exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them.’” Blaustein v. Marmo, 14 LCR 509 , 512 (2006), citing Peck, supra at 557. Exclusive use does not require that the adverse possessor actually expel third parties, but merely requires expulsion “to the extent that the owner would have excluded them.” Peck, supra at 557.

Tedesco Sr. testified at trial that he cleaned up and raked the disputed parcel. He also testified that in 1988 he began to use the disputed parcel for short term parking. However, there was no testimony that Tedesco Sr. made any improvements to the parcel to facilitate this use. In light of the self-serving nature of Tedesco Sr.’s testimony, as well as the court’s credibility concerns, this testimony is not clear proof of the Plaintiff’s exclusive possession of the disputed parcel. Further, as the burden of proof is on the party seeking title, the Plaintiff must clearly establish that the Defendants, or some other third parties, did not use the disputed parcel during the relevant period for their own purposes. See Lawrence, supra at 421. There was no evidence presented by the Plaintiff that could support this inference with “clear proof.” The court does not believe the Plaintiff has met this burden, even considering Tedesco Sr.’s testimony that when children entered the disputed parcel he would “shoo them off.” There was no testimony as to the frequency of these intrusions, or their nature, sufficient to show expulsion “to the extent the owner would have excluded them.” Peck, supra. Since the Plaintiff did not clearly prove that she and her predecessor had possession of the disputed parcel to the exclusion of the Defendants or third parties, she did not satisfy the exclusive possession element of her adverse possession claim.

d. Actual.

The Plaintiff did clearly prove that he had actual possession of the disputed parcel for the relevant time period. An adverse possession claim requires that possession be “actual” in nature, meaning that the possessor must be actually utilizing the land that he or she is claiming. See LaChance v. First Nat’l Bank & Trust Co., 301 Mass. 488 , 490-491 (1938). The character of the land, the purposes for which the land is adapted, and the past and present use of the land, impact the determination as to what will constitute sufficient possession to support a claim of adverse possession. LaChance, supra. The Plaintiff showed through testimony that the disputed parcel was used intermittently for storing derelict cars and other equipment, uses which can be considered actual. The disputed parcel is located within an industrial park. For this reason, the storage of old cars and equipment on the property is a use which can be considered to be consistent with the character of the land. As the Plaintiff’s use of the disputed parcel is within the property’s character, the Plaintiff satisfied the actual element of an adverse possession claim.

e. Nonpermissive/Adverse

The Plaintiff established that possession of the disputed parcel was without the consent of the Defendants. The element of “nonpermissive” use has been used interchangeably with “adverse” use by courts. See Totman v. Malloy, 431 Mass. 143 , 145 (2000). The person seeking title must use and enjoy the property continuously for the required period, without the consent of the true owner, and therefore in actual hostility to the true owner, regardless of the possessor’s actual state of mind or intent. Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992), quoting Ottavia, supra at 333. There was no evidence presented at trial, by either the Plaintiff or Defendant, that the Plaintiff or her predecessor ever sought, received or were denied, permission to use the disputed parcel. From the evidence presented at trial, the court can conclude that Tedesco Sr. saw the disputed parcel unused, and decided on his own accord to store automobiles and other equipment on the concrete pad and the surrounding property. The Plaintiff has shown that Tedesco Sr.’s use was without the permission of the Defendant, and therefore has proven the nonpermissive element of her adverse possession claim.

f. Statutory Period.

The Plaintiff’s use, tacking Tedesco Sr.’s use, has satisfied the twenty year statutory period of an adverse possession claim. “An action for recovery of land shall be commenced, or entry made thereon, only within twenty years after the right of action or entry first accrued, or within twenty years after the demandant . . . has seized or possessed the premises . . . .” G. L. c. 260, § 1. See Hewitt v. Peterson, 253 Mass. 92 , 94 (1925) (“to acquire title to another’s land by adverse possession, one must have held it full twenty years”). Tedesco Sr. acquired the property in 1974 and testified that he sporadically began using it to store cars and equipment in 1974. The testimony at trial supports the determination that the sporadic use continued until at least 1995, which would satisfy the twenty year statutory period necessary to prevail on an adverse possession claim.

g. Conclusion.

Although the Plaintiff has presented evidence which supported the open and notorious, actual, nonpermissive and statutory period elements, the continuous and exclusive elements were not satisfied. To prevail in an adverse possession claim, the party seeking title has the burden to prove all the elements with clear proof. The lack of credibility of the Plaintiff’s witnesses weighed heavily on the courts determination of all the elements. The credibility of the testimony regarding the continuous element was the most fatal to the Plaintiff’s claim. Given the credibility issues, the court cannot determine that the Plaintiff possessed the disputed area continuously for the entire twenty year statutory period. Further, the Plaintiff has not met her burden regarding the exclusive element of her claim. As such, the Plaintiff cannot succeed in her adverse possession claim for title of the disputed area.

III. THE COURT DOES NOT HAVE JURISDICTION OVER THE DEFENDANTS’ COUNTER-CLAIMS.

As noted above, the Defendants have pleaded three counter-claims: (1) abuse of process; (2) violation of chapter 93A; and (3) nuisance. The Land Court’s jurisdiction has been conferred upon it, and is substantially set out in, G. L. c. 185, § 1. Review of this statute indicates that this court does not have jurisdiction over these matters as they are not listed as being within either the exclusive or concurrent jurisdiction of the Land Court. Accordingly, this Court cannot make a determination as to their merits and must dismiss the claims.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: March 4, 2011