Plaintiffs Susan Rufo, as Trustee of the 17 Shanley Street Condominium Trust and the 11 Shanley Street Condominium Trust, and 17 Shanley Street LLC (collectively, Rufo) initiated this action on July 8, 2013 by filing a Verified Complaint, seeking a declaratory judgment that a Cross Easement and Use Agreement (Agreement) entered into by Rufo and Stephen M. Chapman, principal of Defendant Washington Oak Square Limited Partnership (Washington Oak), among others, is valid and enforceable. Rufo also seeks a declaration that the Agreement was not revoked by Defendants recording of an instrument titled Revocation of Easement and Use Agreement (Revocation) dated May 2, 2013. Alternatively, should the court determine the Agreement is unenforceable, Rufo seeks a declaratory judgment that Rufo has acquired ownership of the portion of Defendants property at issue through adverse possession, or that she has established a prescriptive easement allowing her, and those acting by through and under her, to park.
Rufo filed the Verified Complaint together with a Motion for a Temporary Restraining Order. [Note 1] The court issued a short order of notice and held a hearing on the preliminary injunction on July 10, 2013, at which all parties were heard. On July 24, 2013, the court granted the preliminary injunction, ordering the parties to comply with the terms of the Agreement until this matter concluded, or until further order of the court, and further ordering Washington Oak to remove all obstructions to Plaintiffs access to the parking spaces. [Note 2] Two days of trial took place on January 8 and 9, 2015. [Note 3] On behalf of Plaintiff, the court heard testimony of Susan Rufo and Patrick Galvin, owner of property at 12 Shanley Street in Brighton. On Defendants behalf, the court heard testimony of Stephen Chapman, a real estate developer and principal of Washington Oak; Attorney Curt Bletzer, and Louise Kwan, a project manager for SMC Management. Forty-two exhibits were entered in evidence. Both parties filed post-trial briefs. Based on the agreed statement of facts, the credible testimony, exhibits, stipulations, and other evidence entered at trial and the reasonable inferences drawn therefrom, this court finds the following material facts:
Washington Oak Property
1. Washington Oak Square Limited Partnership, a Massachusetts limited partnership, owns the properties known and numbered as 458-460 Washington Street in Brighton (collectively, Washington Property). Washington Oak purchased the Washington Property from John B. McNamara, as Trustee of the Four Sixty Nominee Trust, on December 12, 2011, after a commercial auction. The Washington Property comprises two separate parcels of land, described in a deed recorded with the Suffolk Registry of Deeds in Book 48782, at Page 100. [Note 4]
2. Parcel 1 fronts on Washington Street and consists of approximately 16,611 square feet of land, improved by a building formerly used as a funeral home. Parcel 2 consists of approximately 14,568 square feet and is L-shaped. Parcel 2 abuts the rear of Parcel 1, and also abuts 17 Shanley Street. It is a vacant, unimproved parking lot.
3. In 1984, Richard Fitzpatrick, Rufos father, purchased 11 Shanley Street from John B. McNamara, Marion V. McNamara and Robert R. McNamara, in a deed recorded in Book 11050, at Page 080. He purchased 17 Shanley Street from Marion V. McNamara and Robert R. McNamara, in a deed filed in Book 11050, at Page 078.
4. On or around 2005, Susan Rufo succeeded her father as trustee of the condominium trusts and as manager of the LLC. Rufo is Trustee of the 17 Shanley Street Condominium Trust, which constitutes the organization of unit owners of the 17 Shanley Street Condominium, established by master deed dated March 19, 1987 and recorded in Book 13501, at Page 28. [Note 5] Rufo is also Trustee of the 11 Shanley Street Condominium Trust, established by a master deed dated March 19, 1987, recorded in Book 13501, at Page 1. [Note 6]
5. The rear and side boundaries of 17 Shanley Street abut the Washington Property. The rear line of 11 Shanley Street also abuts the Washington Property. 11 Shanley Street and 17 Shanley Street are both improved by a building, each containing four residential condominium units, which Rufo rents to tenants.
6. Five delineated parking spaces are located in the eastern portion of Parcel 2, running perpendicular along 17 Shanley Street (Disputed Area). See Sketch A, attached (the parking spaces at issue are marked 14 and A). A portion of each space is located on Parcel 2 with the remainder located on 17 Shanley Street. As currently located, a car parked in any of these five spaces will be situated on both properties.
7. Rufo has been using spaces 14 for tenant parking since 1984.
Development Plans and Cross Easement Negotiations
8. At the time of the Washington Oaks purchase of the Washington Property, its principal, Stephen Chapman (Chapman), planned to develop the site with residential rental units.
9. Chapmans initial development proposal called for the demolition of the existing funeral home building and the construction of a total of 39 new units divided between two buildings.
10. Chapman met with Rufo and several others at a bakery in Brighton on an undetermined date, sometime after the commercial auction in November 2011 and before February 2012.
11. In addition to Rufo and Chapman, Thomas Donnelly, an employee of Chapmans, Paul Minihane, a real estate broker, and Pat Galvin (Galvin) were present at the meeting.
12. Galvin owns properties located at 12 Shanley Street and 471 Washington Street in Brighton. During times relevant to this litigation, Galvin served as the point of contact between Washington Oak and Virginia Ronan and Marie Ronan (Ronans), owners of 7 Shanley Street (as Trustees of the Ronan Family Trust) and direct abutters to the proposed development project. Rufo did not have any communications with the Ronans and relied on Galvin to contact them.
13. After receiving input from Rufo and Galvin at this meeting, it became clear to Chapman that his original development plan lacked neighborhood support, due to the neighbors concerns about density and size.
14. During the several months following that initial meeting, Chapman met with other neighborhood groups, including the Brighton Allston Improvement Association (BAIA), to discuss his proposal. As a result of these discussions, Chapman scaled down his proposal to a total of 28 residential units, with four located in the existing funeral home building and 24 units located in a newly constructed building. Parking would be located under the new building. Chapman also changed the type of units in the development, reducing the number of two-bedroom units and increasing the number of one-bedroom units.
15. In February 2012, Chapman met with Rufo and Galvin a second time to discuss their support for the project (February Meeting). After this meeting, Rufo sent an email to Chapman on February 27, 2012, copying the others present at the meeting (February 27 Email). This email summarized the tentative terms of an agreement between Chapman and Rufo that had been discussed at the February Meeting.
16. In relevant part, the February 27 Email states the following:
a. The proposed project would involve conversion of the existing building into four units and an additional 24 units would be built on the rear lot for a total of 28 units. Access for the property would be provided by a two-way driveway utilizing Washington Street for both the entrance and exit[.] Shanley Street would have a crash gate, but would not be used as an egress for the development project, only as an emergency access. Parking would be assigned to the three abutting properties most impacted by the proposed project[.] Four cars would be assigned to 17 Shanley Street as presently used, facing towards [the] 17 Shanley building and [t]wo spaces would be assigned to each number 7 and 11 Shanley Streets, on the opposite side[,] for a total of eight parking spaces. The provision for parking would be in writing by way of either a lease or an easement for an extended period of time. (italics added).
17. Rufo concluded the February 27 email with the following: [t]he owners of 7, 11, and 17 Shanley Street and 465-467 Washington Street look forward to working with you on the next phase [of] your project.
18. Chapman instructed his attorney, Peter Lyons, to draft a document reflecting the terms of the February 27 email.
19. Rufo, Galvin and the Ronans retained an attorney on an undetermined date.
20. In or around May 2012, a draft agreement was negotiated between the attorneys but it was not agreeable to Rufo, Galvin or the Ronans, as they felt it did not accurately reflect the discussion from the February Meeting. No agreement was reached at this time, and Rufo, Galvin and the Ronans discharged their attorney, deciding to represent themselves in further discussions with Washington Oak.
Washington Oak Variance
21. Washington Oak sought a variance from the City of Boston Zoning Board of Appeal (Board) to allow 28 residential units on the Washington Property: four units within the existing building located on Parcel 1, and twenty-four new units within the new construction slated for Parcel 2.
22. The variance application also required a filing with the Boston Redevelopment Authority (BRA), known as an Application for Article 80 Small Project Review (Article 80 Application).
23. The Article 80 Application, dated May 24, 2012, included a section titled Traffic, Parking and Vehicular and Pedestrian Access. This section stated that the new 28-unit residential building will include on-site parking for 40 plus vehicles in order to mitigate potential parking and traffic issues associated with the project . . . 19 of the on-site parking spaces will be contained in an underground garaged parking facility, with the remaining 29 exterior spaces screened from the street and the buildings entry, for a total of 48 parking spaces. [Note 7]
24. In September 2012, a hearing was held before the Board on the development proposal. Rufo and Chapman attended this hearing, and Rufo addressed the Board during the public comment phase of the hearing. [Note 8] She advised the Board that some of the parking presented on the plan was located on her property, and asked that they defer any decision until the issue was resolved. The Board deferred action, but did not schedule a specific date for the next session of the hearing.
25. After the Board meeting in September, Chapman retained Attorney Curt Bletzer (Bletzer) specifically to finalize the negotiation of the Agreement with the abutters, reflecting the terms laid out in the February 27 Email. Bletzer and Rufo had conversations regarding Rufos concerns about the severability clause contained in the Agreement. She was afraid her easement might be invalidated while the rest of the proposal could go forward. He assured her that was not the intent, but also removed the concerning clause from the Agreement.
The Cross Easement Agreement and Board Proceedings
26. Attorney Bletzer sent a revised form of the Agreement to Rufo on January 7, 2013.
27. The Agreement purports to be among the following parties: Washington Oak Square Limited Partnership, Virginia G. Ronan and Marie A. Ronan, as Trustees of the Ronan Family Trust, Susan Rufo, Trustee of the 17 Shanley Street Condominium Trust, 17 Shanley Street, LLC, and Susan Rufo, Trustee of the 11 Shanley Street Condominium Trust.
28. Galvin is not a signatory to the Agreement.
29. On January 21, 2013, Rufo emailed Bletzer, asking whether the Board meeting scheduled for January 22nd could be delayed so the Agreement could be recorded beforehand. Rufo was nervous that her interests be protected because the Plan Washington Oak was presenting to the BRA and the Board included parking spaces on her property. Bletzer responded via email explaining [t]here is no need to record it before the hearing. There is a 20 day appeal period and we can do it within the 20 days[.]
30. On January 22, 2013, a Board hearing was scheduled for 9:30 AM. By prior arrangement, Rufo and Chapman met beforehand outside the hearing room, and executed two originals of the Agreement, which Bletzer notarized. One original was retained by Rufo and one was retained by Bletzer, on behalf of Chapman. The Ronans did not execute the Agreement and were not present. Rufo was instructed to obtain the Ronans signatures on her copy of the original, presumably through Galvin, who had been the contact person with the Ronans throughout. Galvin was not present when the Agreement was executed nor was he present at the Boards hearing that morning.
31. When Bletzer and Chapman gave Rufo one original Agreement, they intended that such delivery was in escrow, given the express direction for her to obtain the Ronans signatures and given that the Agreement did not have a plan attached to it.
32. After Rufo and Chapman had executed the Agreement, Bletzer went into the hearing and Washington Oak represented to the Board that the parties had resolved their differences regarding parking. [Note 9] The copy of the Agreement given to the Board by Washington Oak did not have a plan attached to it, as the parking plan had not yet been prepared, but Washington Oak clearly represented to the Board that the neighbors were satisfied based on the Agreement. [Note 10] The Board then voted to grant the variance.
33. Section 1(a) of the Agreement reads: Washington Oak Square grants to 17 Shanley Street, LLC and to 17 Shanley Street Condominium Trust the right to use the four (4) surface parking spaces numbered 1 through and including 4 on the Easement Plan and located partly on Parcel 2 and partly on the 17 Shanley Street property which shall, subject to the terms and conditions of this Agreement, be subject to the perpetual and exclusive right and easement in favor of 17 Shanley Street, LLC and the 17 Shanley Street Condominium Trust, for the benefit of its unit owners, residents, lessees and their respective contractors and invitees solely for the purposes of parking motor vehicles thereon. Said use shall be subject to the terms and conditions of the 17 Shanley Street Condominium Trusts Master Deed, Declaration of Trust and Rules and Regulations, as amended of record.
34. Section 1(b) reads: Washington Oak Square grants to 11 Shanley Street the right to use the two (2) surface parking spaces numbered 5 through and including 6 on the Easement Plan and located on Parcel 2, which shall, subject to the terms and conditions of this Agreement, be subject to the perpetual and exclusive right and easement in favor of the 11 Shanley Street Condominium Trust, for the benefit of its unit owners, residents, lessees and their respective contractors and invitees solely for the purposes of parking motor vehicles thereon. Said use shall be subject to the terms and conditions of the 11 Shanley Street Condominium Trusts Master Deed, Declaration of Trust and Rules and Regulations, as amended of record.
35. Section 1(c) reads: Washington Oak Square grants to the Ronan Family Trust the right to use the two (2) surface parking spaces numbered 7 through and including 8 on the Easement Plan and located partly on Parcel 2 and which shall, subject to the terms and conditions of this Agreement, be subject to the perpetual and exclusive right and easement in favor of the Ronan Family Trust, for the benefit of its owners, residents, lessees and their respective contractors and invitees solely for the purposes of parking motor vehicles thereon.
36. Section 1(d) reads: 17 Shanley Street, LLC and the 17 Shanley Street Condominium Trust grant to Washington Oak Square the right to use the one (1) surface parking space identified as Parking Space A on the Easement Plan and located partly on Parcel 2 and partly on the 17 Shanley Street Condominium Trust property and which shall, subject to the terms and conditions of this agreement, be subject to the perpetual and exclusive right and easement in favor of Washington Oak Square, for the benefit of its owners, residents, lessees and their respective contractors and invitees solely for the purposes of parking motor vehicles thereon.
37. The Agreement thus purported to grant a total of eight spaces: six to Rufo for use by her tenants, and two to the Ronans. The eight spaces consisted of four of the five spaces abutting 17 Shanley Street (spaces 14), and four spaces located directly opposite (spaces 58). It purported to grant to Chapman an easement over the portion of Rufos property on which the fifth parking space abutting 17 Shanley Street, marked A, was located. See Sketch A. [Note 11]
38. Sometime on January 22, 2013, Chapman instructed Bletzer that the Agreement should not be recorded until after the 20-day appeal period had run because Galvin had not shown up at the hearing. Chapman was concerned about him possibly appealing the variance, as he was not a signatory to the Agreement.
39. On January 22, 2013, Rufo and Bletzer exchanged a series of emails regarding the Agreement.
a. Shortly following the Board hearing on the morning of January 22nd, Rufo emailed Bletzer to follow up on the recording of the Agreement. In her email, she states [l]ast week when we spoke you said youd record it as soon as wed like. Given that the easement was part of the approval process today at the [Board] hearing, Id like to have it recorded today. There doesnt seem to be a reason to delay[.] (underline in original).
b. Rufo emailed a second time approximately three and a half hours later, asking if she could pick up the plan that had to be attached to the Agreement.
c. Bletzer, responding to Rufos second email, stated he would call Rufo when he returned to his office.
40. Bletzer called Rufo once he returned to the office, and said the Agreement could not be recorded until after the appeal period was over. Due to Galvins absence at the Board hearing and per Chapmans instructions, Bletzer had changed his mind and determined that the Agreement could not be recorded within the appeal period. He also inquired about the status of the Ronans signatures, and stated they needed to sign before recording as well. [Note 12]
41. Bletzer emailed a copy of the plan to be recorded with the Agreement to Rufo and Galvin on March 11, 2013. His email stated [a]ttached is a copy of the plan that I will file with the easement agreement. Please let me know the status of the [Ronans] signing the easement agreement and I will make arrangements to have it filed after the appeal period has run. (italics added).
42. On April 5, 2013, Chapman emailed Rufo, asking to schedule a meeting to review a final landscape plan to be sure [they] have everything in place that [they] agreed to and incorporate any final thoughts [Rufo] may have[.] Chapman also stated he would like to review the cross easement and discuss a couple of tweaks for [Rufo] to consider to get it ready for recording. (italics added).
43. The Agreement was recorded by Rufo on April 10, 2013, in Book 51268, at Page 106, with the copy of the plan received via email from Bletzer on March 11th attached. The recorded Agreement was never executed by the Ronans.
44. On April 20, 2013, Rufo and Galvin timely filed an appeal of the Boards decision in Suffolk Superior Court. [Note 13]
45. On April 30, 2013, Chapman emailed Rufo, expressing his disappointment that she had 1) recorded an incomplete copy of the easement being held in escrow by Bletzer, and 2) appealed the grant of the variance. Chapman further stated that support for the variance was consideration for the easement agreement, and requested that Rufo contact him.
46. Throughout their discussions with Rufo regarding the Agreement, Chapman and Bletzer intended that, in exchange for Rufos support for the development of the Washington Property, they were granting her an easement to continue the parking use by her tenants and providing her (and others) with additional spaces. They believed, but did not sufficiently express to Rufo, that there would be no easement in her favor if anyone appealed the proposed development. They did make it clear to her, however, and she understood that she would not be entitled to the grant of an easement if she herself appealed the variance.
47. On May 3, 2013, Washington Oak recorded a unilateral instrument entitled Revocation of Easement and Use Agreement (Revocation) in Book 51388, at Page 1.
48. On Monday, May 27, 2013, Washington Oak erected two fences that blocked access to the parking spaces subject to the Agreement, prompting Rufo to initiate this action. The preliminary injunction that this court issued at the commencement of the case allowed the continued use of four parking spaces by Rufos tenants during the pendency of this action and required Washington Oak to remove the obstructions they had erected.
* * * * * *
I. Negotiation of the Agreement
Rufo contends the Agreement is a valid and unambiguous agreement, signed by both Rufo and Washington Oak, and properly recorded. She argues the waiver of her right to appeal the variance was never part of the terms of the Agreement. [Note 14] Washington Oak raised a number of defenses and counterclaims, such as lack of consideration, lack of a meeting of the minds, mistake, misrepresentation, failure of a condition precedent, and fraud, in support of its assertion that the Agreement must be rescinded. Taken together, Washington Oak essentially argues that Rufos promise not to appeal the variance constituted consideration for the easements she received under the Agreement, and therefore, the Agreement is void because Rufo appealed the variance. The credible evidence at trial supports Washington Oaks position.
Washington Oak purchased the property with the intent of developing residential rental units on the site. It was clear that it needed to procure the support of Rufo and other abutters in order to advance the project. After an initial introductory meeting following the purchase of the Washington Property, Chapman, Rufo, and Galvin met in February 2012 to discuss the proposed project in detail. Rufo summarized their discussions in an email dated February 27, 2012, and the details regarding the parking easements were later adopted in the finalized Agreement.
Without Rufos agreement to support and not to appeal the variance, the Agreement between the parties lacks valid consideration from Rufo. [Note 15] In the Agreement, Washington Oak grants rights over eight parking spaces on the Washington Property. Rufo is granted the use of six of those spaces. Also in the Agreement, Rufo grants Washington Oak an easement over one parking space partially located on her property (labeled as Space A on Sketch A). However, Washington Oak needed this one space only if the proposed development went forward as planned. Washington Oaks Article 80 Application to the BRA stated the proposed building would provide on-site parking for 40 plus vehicles . . . for a total of 48 parking spaces.
Without the Agreement and the one space it provided to Washington Oak, it still had 43 remaining spaces, above the 40 plus spaces quoted to the BRA in the Article 80 application. [Note 16] Therefore, Washington Oak had no real need for the one space it would receive under the Agreement. What it clearly did need was Rufos support as an abutter.
Rufo testified that her understanding of the purpose of the Agreement was to clarify the use of the four parking spaces abutting 17 Shanley Street: spaces she had used for tenant parking since her father purchased 17 Shanley Street. The court did not find this testimony credible, given that the Agreement ultimately awarded her and her neighbors eight parking spaces. Four of these spaces were assigned to Rufo for 17 Shanley Street, two were assigned to Rufo for 11 Shanley Street, and two were assigned to the Ronans at 7 Shanley Street. Resolution or clarification of Rufos parking spaces required only four spaces the four she had originally been using for tenant parking, which were located partially on the Washington Property.
The court finds it was also made clear to Rufo that the Agreement, in its form after the January 22 BRA hearing in which it was signed only by Rufo and Chapman, was not yet intended to be recorded. Rufo relies heavily on an email received from Bletzer on January 21, 2013, in which he states the parties do not need to record the Agreement prior to the January 22nd BRA hearing because there is a 20 day appeal period and [they] can do it within the 20 days[,] to justify her unilateral recording of the Agreement before the appeal period expired. [Note 17] Subsequent communications between Rufo and Bletzer make it clear, however, that Bletzer and Chapman intended for the easement to be recorded after the appeal period and conveyed that message to Rufo well before she recorded it on April 10, 2013. Galvins absence at the hearing and the lack of the Ronans signatures had concerned Chapman, and he instructed Bletzer, that the Agreement could not be recorded until after the appeal period. Bletzer credibly testified that he informed Rufo of this fact in a telephone call on January 22nd. Bletzer and Chapman also indicated the Agreement was not to be recorded yet and that he would be responsible for doing so in several emails to Rufo in March and April 2013. At the very least, these emails demonstrated to Rufo that the Agreement was not yet considered to be in recordable form, and that Washington Oak intended for it to be filed following the appeal period. [Note 18] In addition, the Agreement had not yet been fully executed when Rufo recorded it, as the Ronans had not yet signed.
II. The Revocation of the Agreement is Valid
Washington Oak filed the Revocation on May 3, 2013. Rufo contends this was a unilateral revocation with no lawful effect. Under the principles of equity jurisprudence, a court has broad power to reform, rescind, or cancel written instruments . . . on grounds such as fraud, mistake, accident, or illegality. Beaton v. Land Court, 367 Mass. 385 , 392 (1975). Rescission is an equitable remedy awarded at the discretion of the court. Augustine v. Rogers, 47 Mass. App. Ct. 901 , 902 (1999). Having concluded that Rufo knowingly recorded the Agreement in contravention of Washington Oaks intent and understanding, this court finds that Washington Oak had a right to revoke the Agreement.
III. Rufo Failed to Establish Adverse Possession or Prescriptive Use of the Portion of the Four Parking Spaces Located on the Washington Property
Rufo has alternatively argued that, in the event that the Agreement is not valid, she nonetheless has established title over four parking spaces through adverse possession, or a prescriptive easement for their use for parking. To prove adverse possession, Rufo must show that use of the parking spaces was actual, open, notorious, exclusive and adverse for a period of at least 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. Obtaining a prescriptive easement requires uninterrupted, open, notorious and adverse use for twenty years. Ryan v. Stavros, 348 Mass. 251 , 263 (1964); Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009); see also G. L. c. 187, § 2.
Adversity, a requirement of both adverse possession and prescription, requires lack of consent from the true owner. Totman v. Malloy, 431 Mass. 143 , 145 (2000), citing Ottavia v. Savarese, 338 Mass. 330 , 334 (1959). Rufo testified, however, that her use of the parking spaces was done with the permission of the McNamaras dating back to Rufos fathers initial purchase in 1984:
Q: [T]he use made by your family and your tenants for those four parking spaces, that was done with the permission of the McNamaras, was it not?
A: From the beginning, when it was purchased, there was
Q: When it was first purchased, the right to use those spaces was because the McNamaras gave you permission to do that, is that correct?
A: I believe so. Tr. vol. I, 84: 7-15.
Rufos further testimony that she never received express permission from the McNamaras has no bearing on the matter. Permission from the true owner, whether express or implied, defeats a claimants adversity. Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). A use that commences with permission, as Rufos use did in 1984, is generally presumed to continue with permission. Begg v. Ganson, 34 Mass. App. Ct. 217 , 219 (1993). The claimant in any adverse possession case carries the burden on each and every element, and if any remains unproven or left in doubt, the adverse possession claims fails. Sea Pines Condominium III Assn v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004), citing Holmes v. Johnson, 324 Mass. 450 , 453
(1949); Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968). Rufos own testimony demonstrated that her adverse use of the parking spaces was permissive, or at best unclear, and accordingly, she failed to carry her burden of proof. Thus, Rufo has not acquired title to the parking spaces by adverse possession, [Note 19] nor acquired use of the spaces through prescription. [Note 20]
This court finds and rules that Washington Oak validly revoked the Agreement, and it is of no force and effect. The preliminary injunction issued by this court on July 24, 2013 will be dissolved, effective sixty days following the issuance of judgment.
Judgment to enter accordingly.
[Note 1] Heard ex parte and denied on July 8, 2013.
[Note 2] On September 9, 2013, Washington Oak filed a motion to reconsider the order granting the preliminary injunction. After a hearing on September 19, 2013, at which all parties were heard, this motion was denied.
[Note 3] On the morning of trial, Rufo filed two motions in limine: one to exclude the July 9, 2013 affidavit of Paul J. McNamara (McNamara Affidavit), and one to exclude parol evidence. After a discussion with both counsel prior to the commencement of trial, the court allowed Rufos motion to exclude the McNamara Affidavit and denied the motion to exclude the parol evidence.
[Note 4] All subsequent recording references are to this Registry.
[Note 5] The 17 Shanley Street Condominium Trust is recorded in Book 13501, at Page 36.
[Note 6] The 11 Shanley Street Condominium Trust is recorded in Book 13501, at Page 9.
[Note 7] The record does not include the official BRA approval.
[Note 8] Galvin did not attend this meeting.
[Note 9] It appears that Attorney Peter Lyons was actually representing Washington Oak at this hearing.
[Note 10] It was subsequently prepared and delivered to the BRA.
[Note 11] The Agreement also provide for other matters, such as the installation of a crash gate and for allocation of maintenance and repair costs.
[Note 12] To the extent there was conflicting testimony as to whether this telephone call occurred, the court credits Bletzers testimony that it did.
[Note 13] Case No. 20131478E.
[Note 14] As noted in footnote 3, supra, Rufo moved to exclude any parol evidence outside the four corners of the Agreement. Washington Oak has raised allegations of fraud, mistake, and lack of consideration, among other things, which fall outside the parol evidence rule. See Michelson v. Barnet, 390 Mass. 786 , 792 (1984) (stating the parol evidence rule is no bar to the consideration of extrinsic evidence when mistake is alleged); Commerce Bank & Trust Co. v. Hayeck, 46 Mass. App. Ct. 687 , 691 (1999), citing McEvoy Travel Bureau, Inc. v. Norton Co., 408 Mass. 704 , 711 n.5 (1990) (stating that the parol evidence rule does not apply to allegations of fraud).
[Note 15] Consideration requires a benefit to the promisor or detriment to the promisee. Marine Contractors Co., Inc. v. Hurley, 365 Mass. 280 , 286 (1974).
[Note 16] Rufo argues that Chapmans representations to her about the total number of parking spaces included in the proposal lacked clarity. She took issue with Chapman representing in the Article 80 Application that the project would have a total of 48 spaces, since five of those spaces utilized her property, and the spaces she had been promised were not mentioned. Applications to the BRA reflected 40 spaces reserved for Washington Oak, with eight reserved to the neighbors. The Article 80 Application does not contradict this and clearly states that the project will have 40 plus parking spaces.
[Note 17] Bletzer testified, and both sides acknowledged, he and Rufo had known each other since childhood. He had been hired by Washington Oak specifically to work with Rufo and Galvin to gain their support for the project, which he believed he could do. This court has viewed the January 21st e mail from Bletzer in that context.
[Note 18] The court finds that Bletzer and Chapman represented to Rufo that the offer of the Agreement was always intended to procure her support for the development and her agreement not to appeal. Although they may have intended that the Agreement was predicated on no one appealing the variance, not just Rufo, the court did not find credible that the sentiment was conveyed to Rufo.
[Note 19] Rufo also failed to demonstrate that her use of the parking spaces was exclusive, required for adverse possession. Although the McNamaras did not use the spaces for parking, Rufo testified that, subsequent to her fathers purchase of 17 Shanley Street in 1984, the McNamaras on occasion paved, striped and plowed the parking lot on Parcel 2, including the area on which the four parking spaces were located.
[Note 20] Rufo alleges she established an easement by implication or by necessity. Rufos property is not landlocked, nor has she proffered evidence of the limited circumstances in which an easement by implication may arise. See Kitras v. Town of Aquinnah, 64 Mass. App. Ct. 285 , 291 (2005). Accordingly, these claims also fail.