EAMONN SOLAN v. SALVATORE LaFACE and VICTORIA LaFACE.

Plaintiff and Defendant-in-Counterclaim Eamonn Solan (“Plaintiff” or “Solan”) initiated this action to recover possession under G. L. c. 237, and to quiet title under G. L. c. 240, of a lot located at 265 West Second Street (the “Property” or “265 West Second Street”) in South Boston, to which he holds record title. In a two-count complaint filed July 1, 2009, Solan seeks a declaration that he is the fee simple owner of the Property, free of any claims by Salvatore and Victoria LaFace (“Defendants” or “the LaFaces”), Defendants and Plaintiffs-in-Counterclaim; an injunction enjoining the LaFaces from trespassing on the Property; and an order for the removal of existing encroachments. Solan also seeks damages for costs and lost profits due to the LaFaces’ continuing trespass, which has interfered with his right to exercise a building permit application to construct a house on the Property approved by the City of Boston Zoning Board of Appeal (ZBA).

The LaFaces, owners of the adjoining lot at 263 West Second Street, filed an answer and counterclaim on August 3, 2009. [Note 1] In their three-count counterclaim, the LaFaces seek to establish title to the Property by adverse possession or, alternatively, a prescriptive easement over the Property for the encroaching bathroom vents, chimneys and deck attached to the LaFaces’ building. [Note 2] The LaFaces also seek reimbursement for the costs of improvements they made to the Property, pursuant to G. L. c. 237, § 18, specifically ground maintenance, fence installation, and payment of trash citations.

Two days of trial were held on October 27 and 28, 2011. The court heard testimony from Solan; Salvatore and Victoria LaFace; Niles Sutphin, an architect engaged by Solan to design a building to be built on the Property; Gary Lynch, owner of a delicatessen located near the Property; Thomas Dignan, a resident of South Boston and occasional employee of Solan; Brian Mahoney, a resident of South Boston and member of the Lower End Political Action Committee/Saint Vincent’s Association; [Note 3] Patricia Hadaya, sister of Victoria LaFace and former resident of 263 West Second Street; and William Hadaya, brother of Victoria and Patricia Hadaya. At the conclusion of the two days of trial, Solan moved for a directed finding, which this court denied.

On December 21, 2011, before post-trial briefs had been filed, Solan moved to reopen the evidence, which the LaFaces opposed in writing. Solan sought to introduce five additional exhibits [Note 4] for the purpose of impeaching certain parts of Salvatore LaFace’s trial testimony. The court granted Solan’s motion in part on October 12, 2012, and allowed a limited reopening of the trial. An additional day of trial was scheduled in order to provide Solan the opportunity to introduce the proposed exhibits and for the LaFaces to proffer evidence in response. On June 25, 2013, the parties filed a stipulation to the admission of Exhibits 21 through 25. A third day of trial was held on July 1, 2013, hearing further testimony from Salvatore LaFace and William Hadaya.

Based on the credible testimony, record exhibits and other evidence entered at trial, along with the facts previously established by the parties in their Joint Pre-Trial Memorandum, and the reasonable inferences drawn therefrom, this court finds the following facts: [Note 5]

The Parties’ Properties

1. Eamonn Solan is the record owner of the Property by deed dated August 7, 1986, recorded with the Suffolk County Registry of Deeds, in Book 12892, at Page 277. [Note 6]

2. George and Catherine Hadaya conveyed 263 West Second Street in South Boston to Defendants Salvatore and Victoria LaFace by deed dated October 1, 1975, recorded in Book 8822, at Page 209.

3. George and Catherine Hadaya received record title to 263 West Second Street by deed dated June 5, 1975, recorded in Book 10873, at Page 130.

4. 263 and 265 West Second Street are contiguous properties. 263 West Second Street is improved by a three-family home.

5. The Property is vacant and unimproved except for the bathroom vents, chimneys, and decks protruding from 263 West Second Street onto the Property. [Note 7]

Use of the Parties’ Properties

6. The chimneys were attached to both 263 West Second Street and a previously existing house located on the Property, which was torn down in approximately 1958.

7. The encroaching chimneys attached to 263 West Second Street predate the respective ownerships of all parties, in excess of twenty years.

8. Salvatore LaFace constructed a deck attached to the back of 263 West Second Street in 1993. This deck encroaches onto the Property approximately 14 inches.

9. The City of Boston Collector-Treasurer’s Office and the Assessors’ records indicate that Solan is the assessed owner of the Property. The Collector-Treasurer’s record does not reference a street address, but does contain a unique ward and parcel number, which is 0601525000. The property and the LaFace property at 263 West Second Street were billed separately by the Collector. Mr. Solan paid the real estate tax bills for the Property.

10. The City of Boston Collector-Treasurer’s Office notes that the owner of the lot at 263 West Second Street is Salvatore La Face.

11. On October 19, 1977, the City of Boston Building Division issued an “Inspectors Violations Report” concerning the “2nd floor bathroom fan and light” and the “3rd floor bathroom fan and light” at 263 West Second Street.

12. On or around June 11, 1990, the City of Boston cited 263 West Second Street for failure to have two approved means of egress.

13. On June 1, 1993, the Commissioner of the Inspectional Services Department of the City of Boston (ISD) cited Salvatore LaFace for violating Massachusetts State Building Code § 113.1 (“failure to secure a permit to erect rear porches (stop all work forthwith at 263 West Second Street”)).

14. The City of Boston issued violations on July 12, 1994, and July 26, 1994, for the failure by Mr. LaFace to secure a permit for the construction of a set of stairs at 263 West Second Street.

15. On July 26, 1994, the Commissioner of ISD cited Salvatore LaFace for a violation of Massachusetts State Building Code § 113.14 (“failure to secure a permit to erect a set of stairs”) and ordering Mr. LaFace to apply forthwith for a permit to erect a set of stairs.

16. On August 30, 1994, Mr. LaFace applied for an amendment to plans for 263 West Second Street in order to “erect a set of stairs . . . 26 inches wide from ground to second floor.” The plans were “abandoned.”

17. On March 23, 2009, the Clerk Magistrate of the Housing Court of the City of Boston issued a Notice for a Probable Cause Hearing pursuant to a complaint issued by the court on March 16, 2009, for violation of Chapter 110.1 (Permit Application): “failure to secure a permit to construct stairs from rear decks onto adjoining property.”

18. On April 3, 2009, Mr. LaFace applied for a permit to “remove existing rear second means of egress from the existing location and rebuild them to new location in back of porch, on rear of 263 West Second Street property. Work will also consist of building a first floor deck on existing structure in rear of 263 West Second Street. Plans will follow.”

19. The building permit application was denied on July 24, 2009, because it violated Article 57, § 9 (“rear yard insufficient for rear deck enlargement”). Mr. LaFace appealed the denial on September 1, 2009, to the ZBA, which approved the permit.

20. On January 12, 2010, the ZBA granted Mr. LaFace’s application to remove and replace the rear stairs and rear decks at 263 West Second Street. On May 19, 2010, Mr. LaFace obtained a building permit to remove the rear stairs and replace the egress.

21. The building permit application was accompanied by a certified plot plan of land prepared by Mr. LaFace’s engineer showing the steps to be removed and a plan showing decks and egress at the rear of the lot line of 263 West Second Street.

22. Sometime after May 2010, Mr. LaFace removed the rear stairway that was constructed on the Property.

23. The building located at 162 – 164 Bolton Street, the Monsignor Lyons Development, is located at the rear of 263 and 265 West Second Street and its construction was completed in August 1989.

24. 166 Bolton Street abuts 263 West Second Street.

25. Solan gave the contractors for the Monsignor Lyons Development permission to use the Property as a staging area at some point after he purchased it.

26. Brian Mahoney, a member of the St. Vincent’s Association, observed construction materials being stored on the Property sometime after 1986.

27. While various styles of fencing have enclosed the perimeter of the Property since 1986, it is unclear whether any fencing existed enclosing the Property prior to 1986.

28. At various times between 1975 and 1983, no fence surrounded the Property.

29. On or around 1976, Salvatore LaFace installed three bathroom vents that extend several inches from the exterior wall of his dwelling onto the Property.

30. The LaFaces used the Property for social events and family gatherings no earlier than 1989.

31. Beginning in approximately 1991, Mr. Solan stored tools and equipment that he used to maintain the Property at a local delicatessen near the Property.

32. Solan employed a handyman/roofer for various maintenance jobs on the Property beginning in approximately 1996. During the winter months he shoveled the sidewalk adjacent to the Property.

Trash citations issued against the Property

33. A City of Boston trash violation notice (#0532735) dated November 28, 2000, was issued to the “owner” of 263 West Second Street for improper storage of household trash “all around” 263 West Second Street.

34. A City of Boston Inspectional Services violation (#2034513), dated July 20, 2003, was issued to “Salvatore LeFace” [sic] concerning “Wd6, 263 West Second Street, anon side yard.” It listed the following violations of 105 CMR 410.000:

a. “1.602: A side yard not being maintained in a clean and sanitary condition, weeds and grass cut but not bagged up for trash, some small debris, trash bags, etc. Must clean entire yard,” and

b. “600B: Plastic bags shall be used to store garbage or mixed garbage as a liner in water-tight receptacles with tight fitting covers as required.” [Note 8]

Efforts to build on the Property

35. During the late 1990’s Mr. Solan and Mr. LaFace had conversations regarding Mr. Solan’s desire to build a residential structure on the Property. The discussions indicated that Mr. LaFace would act as the contractor and build the structure and Mr. Solan would pay for its construction. [Note 9]

36. On or around December 21, 1998, Solan applied for a building permit (Document #002517) to erect a house on the Property. The application lists Eamonn Solan as the owner, and Mr. LaFace signed the application twice- once over the line for “owner or authorized agent” and once as “licensed builder.” Mr. LaFace understood his role to be the builder. The building permit application was not allowed. As a result, an appeal was filed.

37. The application for the appeal to the ZBA was dated August 15, 2000. It is signed by Mr. LaFace, where the name for the owner is indicated. The ZBA granted permission to erect one single-family home at the Property in a decision dated January 9, 2001.

38. On October 3, 2005, Solan’s authorized agent, Niles Sutphin, filed a plan to erect a new wood frame, sprinklered building, with concrete foundation and four stories (Parcel #1525) covering 1200 square feet on the Property. This permit was denied, appealed, and dismissed without prejudice on March 28, 2006, by the ZBA.

39. On September 13, 2006, Solan, through his agent Mr. Sutphin, again applied to erect a new four-story sprinklered building with wood frame construction and a concrete foundation at the Property. This permit was denied by ISD on January 12, 2007.

40. Each time that Solan proposed constructing a two-family house at the Property, Mr. LaFace opposed the application at the ZBA hearing. He did not, however, oppose it on the grounds that he owned the Property.

41. On or around August 3, 2007, Solan, through his agent Mr. Sutphin, appealed the ISD’s refusal to issue a building permit for the two-story dwelling to the ZBA. The ZBA granted the appeal on October 9, 2007.

42. Subsequently, Solan obtained a permit from the City of Boston to construct the two-family dwelling. No appeals of this ZBA decision were taken before the appeal period expired.

* * * * * *

Adverse Possession

A party claiming title to land through adverse possession must establish proof of nonpermissive use that is “actual, open, notorious, exclusive and adverse for twenty years.” Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); Ryan v. Stavros, 348 Mass. 251 , 262 (1964); see also G. L. c. 260, § 21. The guiding principle behind these elements is not to ascertain the intent or state of mind of the adverse claimant, but to provide notice to the true owner, allowing for the legal vindication of property rights. See Kendall v. Selvaggio, 413 Mass. 619 , 623-24 (1992); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). The adverse claimant carries the burden for proving each element, and must prove each and every element in order for the adverse possession claim to succeed. Lawrence, 439 Mass. at 421; Rotman v. White, 74 Mass. App. Ct. 586 , 598 (2009). The determination of “whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific.” Sea Pines Condo. III Ass’n v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004).

The nature and extent of use required to establish adverse possession varies “with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” LaChance v. First Nat’l Bank & Trust Co. of Greenfield, 301 Mass. 488 , 490 (1938); see also Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993). The claimant must prove he or she made changes upon the land that 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.” Peck, 34 Mass. App. Ct. at 556 (quoting LaChance, 301 Mass. at 491 (1938) (internal quotation marks omitted)). Permanent improvements made upon the land are strong evidence of adverse possession and are likely to satisfy each of its elements. LaChance, 301 Mass. at 490-91.

Acts of ownership must be open and notorious so as to place the true owner “on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.” Lawrence, 439 Mass. at 421 (quoting Ottavia, 338 Mass. at 333). Such use must be without attempted concealment. Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007). Open and notorious use must also be continuous for the statutory twenty-year period. G. L. c. 260 §§ 21, 22; Hewitt v. Peterson, 253 Mass. 92 , 94 (1925); see Kendall, 413 Mass. at 624 (stating that infrequent use does not satisfy a claim for adverse possession). “Intermittent and equivocal” acts are insufficient to establish adverse possession. Id. at 624 (citing Parker v. Parker, 83 Mass. (1 Allen) 245, 247 (1861)).

To establish exclusivity, the claimant’s possession of the disputed property must be to the exclusion of the true owner. Exclusive use “must encompass a ‘disseisin’ of the record owner. And this means exclusion not only of that owner but of all third persons to the extent that the owner would have excluded them.” Peck, 34 Mass. App. Ct. at 557 (holding that concurrent use of property prevented a finding of exclusive use and was fatal to the adverse possession claim); accord Blaustein v. Marmo, Land Court Misc. Case No. 303407 (2006) (Lombardi, J.). Even if a claimant satisfies all other elements, unless he excludes others from the property in the way that a true owner would, he will not satisfy the exclusivity element and his adverse possession claim will fail. Labounty v. Vickers, 352 Mass. 337 , 349 (1967); Bellis v. Bellis, 122 Mass. 414 (1877)).

I. Defendants Did Not Establish Use of the Property for the Required Twenty-Year Period

The LaFaces claim to have exclusively used and controlled the Property for a twenty-year period beginning in 1975. Solan purchased the Property in 1986. It is undisputed that at the time Solan purchased the Property, a fence enclosed it. However, it is unclear whether prior to 1986 the fence existed and at what date it was first constructed. Evidence of the existence of a fence prior to 1986 offered at trial was contradictory and unsubstantiated. Salvatore LaFace stated he himself built the fence several months after first acquiring 263 West Second Street, in 1975. Yet in an earlier deposition, Mr. LaFace stated that, to the best of his knowledge, the Property was an open lot with no fencing from 1975 to 1983. Several photographs admitted in evidence show an unfenced lot at various times between 1976 and 1983. For example, photographs admitted as Exhibits 12A, 21C and 22 depict the Property as an unfenced, vacant lot with nothing stored on it.

Mr. LaFace did not dispute what these photographs depicted (a vacant lot with no fence), but instead suggested that certain photographs, such as Exhibit 21C, did not show the entire property, implying a fence surrounded the parts not shown. Mr. LaFace also stated that since purchasing his property in 1975, he and his family were always “in the process of . . . putting up new fences,” therefore some pictures may have been taken during a time when “some of the fence was down and [they] were in the process of putting a new one in.” Earlier testimony by William Hadaya, Mr. LaFace’s brother-in-law, contradicts these explanations. Mr. Hadaya stated that the fencing on the Property “was always around everything,” and “around the whole perimeter,” casting doubt on Mr. LaFace’s contention that only portions of a fence might have existed at certain times.

Additionally, while describing the process of removing one fence to rebuild another, Mr. LaFace stated “you obviously . . . try and leave all the posts in place and then replace them as you put the new ones in . . . .” Between 1976 and 1978, Mr. LaFace claims to have removed a chain link fence from the Property, leaving some of the posts standing, before erecting a new wood fence. However, a photograph of the Property proffered by the LaFaces allegedly taken in 1976 contains neither a fence nor fence posts. Ex. 12A. [Note 10] In any event, the court does not credit Mr. LaFace’s testimony regarding the fence.

The LaFaces failed to introduce any photographs or offer any credible testimony establishing a fence surrounding the Property prior to 1983, and failed to sufficiently rebut the photographic evidence introduced by Solan that no fence surrounded the Property between 1976 and 1983. The parties agree that a fence existed on the Property at the time of Solan’s purchase in 1986.

The LaFaces claim their period of adverse possession began in 1975, but the evidence only establishes their use of the Property beginning in 1986. [Note 11] In either case, their claim must fail. The La Faces cannot establish a twenty year period for any period beginning in either 1975 or 1986 because Solan used the Property several times beginning in 1989, destroying any claim for exclusivity.

II. Defendants Did Not Exercise Exclusive Use of the Property, except for the area of the Property on which the chimneys are located

Solan purchased the Property in 1986, and exercised his dominion and control over the Property in several corroborated instances. From the time of purchase, Solan paid all taxes and insurance. [Note 12] He also dealt with others as the owner of the Property. In 1989, the St. Vincent’s Neighborhood Association began construction on the Monsignor Lyons Development at 162-164 Bolton Street. Solan gave building contractors permission to use the Property as a “staging area” where they could store lumber and other materials during construction. Brian Mahoney, a member of the neighborhood association, confirmed this arrangement, as he personally observed the construction equipment stored on the Property. [Note 13] In addition to granting permission to St. Vincent’s Neighborhood Association to store construction materials on the Property, Solan employed various people to make repairs and maintain the Property throughout the years. Gary Lynch, owner of a local business near the Property, stored some of Solan’s maintenance equipment (for example, shovel, rock salt, weed wacker, gardening tools) at his store for Solan’s convenience, beginning in approximately 1991. Solan would pick up his equipment about once a month in order to work on the Property. Solan employed Thomas Dignan, a handyman/roofer, for various maintenance jobs on the Property, beginning in approximately 1996. Mr. Dignan cut grass, shoveled snow, and did other “odd jobs” around the Property.

Solan used the Property many times throughout the years since purchasing it in 1986. He may not have exercised exclusive dominion and control over his lot, but, importantly, he has demonstrated that the LaFaces also did not have exclusive use of the Property. The LaFaces had the burden as to each element of adverse possession. Their use of the Property was not to the exclusion of the true owner, defeating their claim of adverse possession. See Peck, 34 Mass. App. Ct. at 557, with the exception of the portions of the Property on which the two chimneys are located. The chimneys protrude approximately 14 inches onto the Property. The two chimneys, constructed of brick comprising part of the wall of the building on 263 West Second Street appear to have always been a part of the building and present when first purchased by the Hadayas in 1975. They predate the respective ownerships of the parties to this action, and appear original to the residence.

III. Defendants Are Entitled to a Prescriptive Easement for the Bathroom Vents

To establish a prescriptive easement, a party must prove open, notorious, adverse, and continuous or uninterrupted use of the servient estate for a period of not less than twenty years. G. L. c. 187, § 2; Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Tucker v. Poch, 321 Mass. 321 , 323 (1947). As with an adverse possession claim, the party claiming a prescriptive easement has the burden of proof and persuasion on each element. Ivons–Nispel, Inc. v. Lowe, 347 Mass. 760 , 762 (1964). Failure to provide sufficient evidence on any of the elements defeats the entire prescriptive easement claim. Gadreault v. Hillman, 317 Mass. 656 , 661 (1945).

The LaFaces have proven the requisite elements for a prescriptive easement for three bathroom vents protruding several inches from their building on 263 West Second Street over the Property.

Salvatore LaFace installed the bathroom vents himself in or around 1976. Exhibit 12A shows the brick wall of 263 West Second Street that borders the Property. Although blurry, the photograph shows a bathroom vent in the identical location as in later, clearer pictures. See Ex. 12B. As noted above, supra note 9, Exhibit 12A is a photograph that could have been taken at any time between 1976 and 1993, and Mr. LaFace testified he believed it shows 263 West Second Street in approximately 1976. Additionally, the City of Boston Building Department issued an “Inspectors Violation Report” concerning the second and third floor bathroom fans and lights at 263 West Second Street in 1977, confirming that two vents existed as of 1977. The vents, whether in place in 1976 or 1977, meet the twenty-year requirement for a prescriptive easement.

The LaFaces hold a prescriptive easement over the Property for the bathroom vents, but failed to prove the required twenty years for the decks constructed at the rear of their building. The decks were constructed in 1993 and protrude approximately 14 inches onto the Property. Because they were constructed in 1993, they have not yet reached the twenty-year period for adverse possession or for a prescriptive easement. The encroaching portions of the decks, if any now remain, must be removed. See Brandao v. Docanto, 80 Mass. App. Ct. 151 , 159 (2011) (citing Peters v. Archambault, 361 Mass. 91 , 92 (1972) (stating that a landowner is entitled to the removal of an encroachment on his property, even if cost of removal is substantial in comparison to any injury suffered)).

The LaFaces are also not entitled to damages for improvements made to the Property. See Senn v. Mass. Elec. Co., 18 Mass. App. Ct. 992 , 994 (1994) (stating that trespassers are precluded from recovering damages for their use of another’s land). While parties are not required to prove damages with “mathematical exactness,” they must establish “reasonable certainty” so that the fact finder is not forced to resort to speculation or hypothesis. Lowrie v. Castle, 225 Mass. 37 , 51 (1916); see also Augut, Inc. v. Aegis, Inc., 417 Mass. 484 , 499 (1994). Even if the issue of damages or compensation was applicable here, the LaFaces failed to produce evidence of their incurred costs and expenses and provided only speculative amounts when testifying at trial. Solan claimed damages as well (for alleged lost profits and waste) and attorney’s fees, which are denied for the same reasons.

Judgment to issue accordingly.