MISC 11-446482

October 30, 2012


Long, J.



This is a case that centers on the meaning of “possession” under G.L. c. 244 § 1, the foreclosure by entry statute. The property in question is 390 Geneva Avenue and 95 Topliff Street in Dorchester (hereafter “the property”) (see Exhibit 1, attached). The defendant, Santos Gonzalez, contends that he is the sole, fee simple owner of the property by virtue of his entering the property on July 26, 1990 for the purpose of foreclosure, recording a certificate attesting to that entry, and maintaining peaceable possession for three years after. Since 1990, the property has been conveyed several times, mortgaged, subdivided, and converted into condominiums. At all times since 1990, Mr. Gonzalez has never lived at the property, maintained it, or paid any taxes on it. One of the condominiums at the property was foreclosed on and the unit was conveyed to the plaintiff, HS Land Trust, LLC. The parties have cross-moved for summary judgment, each claiming it has title. For the reasons set forth below, the defendant’s motion is ALLOWED and the plaintiff’s is DENIED.


Summary judgment may be entered when there are no genuine disputes of material fact on the claims put in issue by the motion, and the moving party is entitled to judgment on these undisputed facts as a matter of law. Mass. R. Civ. P. 56(c); Ng Bros. Constr. v. Crannery, 436 Mass. 638 , 643-644 (2002). When considering a motion for summary judgment, the court “does not pass upon the credibility of witnesses or the weight of the evidence or make its own decision of facts.” Atty Gen. v. Bailey, 386 Mass. 367 , 370 (1982) (citations omitted). All material facts must be viewed, and all reasonable inferences from those facts must be drawn, in the light most favorable to the party opposing the motion. Id. at 371.

The following facts are not in dispute. On or about August 3, 1988, Omar Fernandez and Agueda Munoz granted a mortgage on the property to Mr. Gonzalez in the amount of $80,000. (Joint Stipulation of Undisputed Facts ¶ 3). The mortgage was duly recorded at the Suffolk County Registry of Deeds. (Joint Stipulation of Undisputed Facts ¶ 4). On July 26, 1990, Mr. Gonzalez made peaceable entry on the property for the purpose of foreclosing the mortgage, and a certificate of entry was recorded at the registry of deeds on August 1, 1990. (Joint Stipulation of Undisputed Facts ¶ 5). On April 2, 1999, Mr. Fernandez and Ms. Munoz conveyed the property to Zobeida Fernandez and Irene Banchs. (Joint Stipulation of Undisputed Facts ¶ 7). After additional conveyances, Frederick Koczowka acquired the property as trustee of the 390 Geneva Avenue Realty Trust and subdivided the property into two separate lots (Lot 1 and Lot 2). (Joint Stipulation of Undisputed Facts ¶ 10).

Patrick Lee eventually acquired both lots in December, 2006. (Joint Stipulation of Undisputed Facts ¶¶ 12-13). Mr. Lee then created a condominium on Lot 2 pursuant to G.L. c. 183A. (Joint Stipulation of Undisputed Facts ¶¶ 14-15). He conveyed Unit 2 in the condominium on the property to Roje Bent who granted a mortgage to MERS. (Joint Stipulation of Undisputed Facts ¶¶ 17-18). In February 2008, the mortgage held by MERS was assigned to Taylor Bean & Whitaker Mortgage Corp. (Joint Stipulation of Undisputed Facts ¶ 19). On May 16, 2008 Taylor Bean foreclosed on the mortgage for Unit 2 and recorded a foreclosure deed at the registry. (Joint Stipulation of Undisputed Facts ¶ 20). Taylor Bean conveyed Unit 2 to HS Land Trust, LLC by way of a special warranty deed on December 29, 2009. (Joint Stipulation of Undisputed Facts ¶ 21). On or about June 30, 2010, Mr. Gonzalez, through his attorney, notified HS Land Trust of his claimed interest in the property and his intention to pursue that claim. (Memorandum of Fact and Law in Support of Plaintiff’s Motion for Summary Judgment, at p. 2).

Mr. Gonzalez has never lived at the property. He has never collected rents, or evicted any person or entity from the property. He has never maintained it or paid for any improvements. He has never paid any real estate taxes on the property or notified the City of Boston of his ownership of the property. (Joint Stipulation of Undisputed Facts ¶¶ 22-25).

Mr. Gonzalez and HS Land Trust have now both moved for summary judgment to establish title to the property.


The central question in this dispute is whether Mr. Gonzalez did everything he was required to do under the foreclosure by entry statute, G.L. c. 244 §§ 1-2, to establish his possession of the mortgaged property even though he admittedly did nothing more than enter the property and record his certificate of entry.

HS Land Trust contends that Mr. Gonzalez can not be considered to have taken “possession” of the property where he essentially never acted as owner or did anything with regard to the property. The plaintiff does not cite to a case that explains the meaning of “possession” in G.L. c. 244 § 1, and instead relies on a generally accepted legal definition that defines possession as “direct physical control over a thing, at a given time….” See Black’s Law Dictionary, (5th Ed.).

It is conceded that Mr. Gonzalez never had physical control over the property, but under G.L. c. 244 § 1, he never had to. Cases that have interpreted the foreclosure by entry statute have long held that a mortgagee who has made peaceful entry on the property and duly recorded a certificate of entry need not do anything further to establish possession. In Bennett v. Conant, 64 Mass. 163 (1852), the court held that there was a sufficient showing of continued possession even though the plaintiff never “occupied, leased, or exercised any acts of ownership over the estate sought to be redeemed during said three years….” Id. at 166. Even a mortgagee who made a secret entry upon land during the nighttime and recorded his certificate of entry was found to have acquired and maintained possession of the property, thereby allowing him to foreclose after three years from the time of entry. See Ellis v. Drake, 90 Mass. 161 , 163 (1864). The Court explained, “[t]he rule of law now held seems to be that the entry by the mortgagee for condition broken, in the presence of two witnesses, and a certificate thereof duly sworn to before a justice of the peace, and duly recorded, are all that is necessary to effect a foreclosure.” Id. at 163-64.

Once possession has been acquired by peaceful entry and the recording of the certificate in the registry of deeds, that possession continues until the mortgagor takes some act that is adverse to the mortgagee’s possession. See Bennett, 163 Mass. at 166. Absent proof of some act done to defeat or interrupt the mortgagee’s possession, the mortgagor is treated as a tenant at will of the mortgagee, and “they are assumed to hold under him, and their possession is his, during the three years, until the completion of the foreclosure….” See Cunningham v. Davis, 175 Mass. 213 , 222 (1900); see also Singh v. 207-211 Main Street, LLC, 78 Mass. App. Ct. 901 , 902 (2010) (“If the mortgagor wants to challenge a foreclosure by entry, it is incumbent upon him to do so before the three-year period has elapsed.”). HS Land Trust has presented no facts that show Mr. Gonzalez’s possession was ever challenged or interrupted during the three years from the time he made entry to the time the foreclosure became complete.

The plaintiff contends that Mr. Gonzalez’s failure to do anything with the property during the three years after he recorded his certificate of entry signifies an intention to waive whatever rights he gained under G.L. c. 244 § 1. See Joyner v. Lenox Savings Bank, 322 Mass. 46 , 54 (1947) (“waiver could arise out of an act inconsistent with reliance on foreclosure”). This argument is unpersuasive because Mr. Gonzalez’s inaction cannot be treated as an affirmative act demonstrating an intent to waive his rights. See, e.g., Jones v. Webb, 320 Mass. 702 , 705-06 (1947) (plaintiff’s action of accepting rents that were not due was “necessarily inconsistent with the enforcement of the right to enter”). After making peaceful entry following the breach of a mortgage condition, and recording his certificate, Mr. Gonzalez did “all that is necessary to effect a foreclosure.” Drake, 90 Mass. at 163-64. He was not required to do more, and his inaction cannot be construed as an intent to waive the rights he gained by making peaceable entry under the statute. Mr. Gonzalez’s continued inaction following the three year period from the date of his entry can also not be held against him as a waiver of his rights because by that time, the mortgage ceased to exist, and Mr. Gonzalez held the legal and equitable title to the land. See Santiago v. Alba Management, Inc. 77 Mass. App. Ct. 46 , 52 (2010). Unlike an easement, title to land owned in fee simple cannot be lost merely through abandonment. See Dyer v. Siano, 298 Mass. 537 , 541-42 (1937).

The law does provide, however, that title to property may be lost when there is a showing that the elements of adverse possession have been met. See G.L. c. 260 § 21. “Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan v. Starvos, 348 Mass. 251 , 262 (1964) (and cases cited therein). The plaintiff’s claim to title by adverse possession fails because the requisite twenty year period had not run. Until three years had passed since Mr. Gonzalez’s entry, the foreclosure was not complete, and Mr. Gonzalez could not be considered the fee simple owner of the property. During that three year period, Mr. Gonzalez could not bring a summary process action against those residing at the property. See Singh, 78 Mass. App. Ct. at 902; see also Dayton v. Brannelly, 255 Mass. 551 , 552 (1926). Thus, the twenty year period required for an adverse possession claim against Mr. Gonzalez began to run on July 26, 1993, when he became the owner of the property outright.


For the reasons set forth above, the defendant’s motion for summary judgment is ALLOWED, and the plaintiff’s motion for summary judgment is DENIED. Judgment shall enter accordingly.


By the court (Long, J.)

Exhibit 1

Subdivision Plan of Land