MISC 159823

November 23, 1992



Plaintiffs seek a determination that they own a portion (the Paved Area) of Defendants' property at 2 Forest Street, Cambridge (Defendants' Property) by adverse possession. Plaintiffs claim that they and their predecessor in title to the adjoining property at 2A-2B Forest Street (Plaintiffs' Property) parked cars on the Paved Area so as to establish title. Defendants deny that the cars were parked sufficiently to establish title and allege that the parking which did occur was by permission and under a lease from Defendants' father, Robert M. Malloy (Robert Sr.)

A trial was held on June 22, 1992. A stenographer was appointed to record and transcribe the testimony. Nineteen Exhibits (some with multiple parts) were introduced into evidence and all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: K. George Najarian (Najarian), Plaintiffs' immediate predecessor in title to Plaintiffs' Property; and Plaintiff, Earle L. Lomen, both for Plaintiffs; and Norma D. Malloy; Robert M. Malloy, Jr.; David C. Malloy; and Maureen P. Malloy, all for Defendants.

I find and rule for Defendants as follows.

1. Counsel filed a Stipulation of Facts, which was admitted as Exhibit 13. That shows that Defendants are the heirs at law of Robert Sr. and as such are the owners of Defendants' Property, a lot shown as "Lot B 6292s.f." on a plan recorded as Plan 761 of 1955 at Middlesex South District Registry of Deeds.

2. The Stipulation further indicates that Robert Sr. took title by deed dated May 19, 1964 recorded at said Deeds at Book 10531 Page 255 and that Defendants took under Robert Sr.'s will, he having died September 1, 1988.

3. Robert Sr. formerly owned Plaintiffs' Property. Najarian acquired Plaintiffs' Property from Robert Sr. by deed dated March 31, 1958. Najarian, either alone or with his first or second wife, owned Plaintiffs' Property continuously from 1958 to 1981, when, by deed dated June 25, 1981, Plaintiffs acquired Plaintiffs' Property, which they have owned since then.

4. The 1955 plan shows Plaintiffs' Property as containing 4415.84 square feet.

5. The Paved Area is a strip running in 41 feet from Forest Street. Most of the Paved Area (the part east of the fence) is shown on Exhibit 3, a land surveyor's sketch. There now exists a chain link fence that runs the length of the Paved Area and it is shown on Exhibit 3. The Paved Area also includes a strip of about 6" on the other (westerly) side of the fence. The Paved Area can be seen on photographs, Exhibits 1 and 2. The white arrow and dot on Exhibit 1 indicate a bolt in the pavement, indicated on Exhibit 3, the intersection of the record property line with the street line. Exhibit 2 shows clearly the portion of the Paved Area lying on the westerly side of the fence. In summary, the Paved Area is the part of the area shown in brick paving on Exhibits 1 and 2 which is west of the record property line.

6. Plaintiffs' Property includes a 2 1/2 story wood frame residence. Defendants' Property includes a brick apartment building.

7. In 1969, Najarian, as then owner of Plaintiffs' Property, substantially renovated it for his own occupancy and as part of the process obtained from the City of Cambridge a curb cut permit leading into the Paved Area. The curb cut constructed under that permit is shown on Exhibit 5; it extends westerly, i.e., along the sidewalk in front of Defendants' Property', even further than the Paved Area. Robert Sr. gave his permission for the curb cut.

8. Prior to the 1969 renovation, entrance to the house on Plaintiffs' Property was by a set of stairs which led out of the house in a westerly direction, more of less in the location of the red car in Exhibit 5. The location of those stairs is shown on the plot plan, Exhibit 9. In the 1969 renovations, Najarian removed those stairs and thereafter entrance was directly into the house from Forest Street by the porticoed entranceway shown on Exhibits 1, 2 and 5. At the same time, Najarian installed the brickwork now covering the Paved Area. The 1969 renovations did not include the chain link fence now dividing the Paved Area.

9. When Najarian purchased Plaintiffs' Property in 1958 there were two or three tall trees in the space between the two properties, which almost obscured one from the other; those trees were on Plaintiffs' Property. The location of those trees is shown on Exhibits 8A and 8B, although the Exhibits show the trees at an earlier date, when they were considerably smaller.

10. By 1959 or 1960, Najarian had cut down the trees and had starting parking in the area between the properties, which at that time was just dirt. To improve things slightly, he installed two brick strips, to accommodate a car's wheels, in the general area shown on Exhibit 8A. The left hand track was all on Plaintiffs' Property and the right hand one appears to be also. Those arrangements existed until the 1969 renovations.

11. As stated above, the 1969 renovations did not include the present chain link fence. The Paved Area existed without the fence from 1969 until the Summer of 1982, a year after Plaintiffs purchased Plaintiffs' Property. In June 1982, Robert Sr. told Mr Lomon that Robert Sr. was going to put up a fence along the boundary line, ie, the record line, which runs back from the white dot on Exhibit 1. Mr. Lomon was going away for several months so he asked that matters be postponed until his return. However, Robert Sr. determined that he wanted to put the fence up in the summer and, by telephone with Mr. Lomon, agreed that he would put the fence up in its present location and that matters could be straightened out when Mr. Lomon returned. The fence was constructed.

12. During the summer and September, matters progressed to the point that lawyers for both sides were in correspondence about possible arrangements. Mr. Lomon wanted to buy the Paved Area but Robert Sr. resisted that and a lease was worked out, providing for a payment of $25.00 per month. (Exhibits 11 through 17). The first payment was made in November 1982. A copy of the lease is included in Exhibit 13. It is a one year lease of a strip 3' by 35', that being a rough approximation of the area between the boundary line and the fence.

13. The plan attached to the lease incorrectly shows Defendants' Property as Lot C; it should show Defendants' Property as lot B and the leased strip should show on the left of that lot, not on Lot C. Exhibit 9 makes the same error; it shows Mr. Lomon's house as located on Defendants' Property. Nothing turns on these errors.

14. Mr. Lomon paid $25 per month rent until October 1990. In April 1990, Maureen P. Malloy (Robert Sr. having died) wrote Mr. Lomon (Exhibit 14) seeking a rent increase to $75 per month. Mr. Lomon testified that he had further conversation with Ms. Malloy about the prospect of his purchasing the leased land, in which he mentioned that he thought he owned the land. After further letters, not in evidence, Ms. Malloy wrote Mr. Lomon in February 1991 (Exhibit 15) saying that the lease had terminated on November 8, 1990 and that the Malloys were going to move the fence to the boundary line. Thereupon, Mr. Lomon commenced this action.

15. Real estate taxes have always been paid on the basis of record ownerships.

16. Robert Sr.'s two sons both testified that they had done chores at Defendants' Property during the period of Najarian's ownership of Plaintiffs' Property and that they saw no cars parked between the two properties. Robert Sr.'s daughter, Maureen, testified that her father had told her that the arrangement with Najarian was that in return for Najarian paving the area between the properties and planting some bushes, Robert Sr. allowed Najarian to park on the Paved Area.

17. Plaintiffs have not established that Najarian and his tenants continuously parked on the Paved Area. The evidence as to parking prior to the 1969 renovations is sketchy and suggests that such parking as took place occurred primarily, if not wholly, on Plaintiffs' Property. The arrangements after 1969 involved permission by Robert Sr. that Najarian park on the Paved Area. Plaintiffs' parking since 1982 has been under lease and even if Plaintiffs entered the lease with merely the idea of buying peace, they held by permission of Robert Sr. under the lease. Plaintiffs have not established any title by adverse possession to any of Defendants' Property.

18. Defendants counterclaimed for damages for Plaintiffs' occupation of the Paved Area since November 1990 but introduced no evidence as to that occupation or their damages and so I deny the counterclaim. Plaintiffs' claim for the return of the rent paid under the lease is moot, since I have decided against their claim of adverse possession.

Judgment accordingly.