THOMAS A. RAMOS vs. CHARLES JONES JR., and such other persons, if any, unascertained, not in being, unknown, within or without the Commonwealth, or who cannot be served with process, their heirs or legal representatives, or such persons as shall become their heirs, devisee or appointees.

Plaintiff Thomas A. Ramos commenced this action by filing an unverified complaint on August 12, 2013, in which he seeks, pursuant to G. L. c. 240, § 1, to compel Defendants to try title to property located at 30 Adams Street in New Bedford, Massachusetts (“Locus”), which he claims to own by adverse possession. [Note 1] The complaint also requested, among other relief, “a decree of this court [that] it be declared and adjudged that the Plaintiff is the owner of [Locus]”, without stating the statutory basis for such relief.

A case management conference was scheduled for October 16, 2013, but neither side appeared. As such, the court issued a fifteen day Nisi Order directing all parties to explain their failure to appear. Neither party responded. Therefore, on November 13, 2013, the court issued a Default Judgment and dismissed the case. On November 21, 2013, Plaintiff filed a motion seeking relief from the dismissal of this case, stating that he was incarcerated and that he did not receive the court’s Nisi Order until November 7, 2013. In view of this representation, the court issued a Revocation of Judgment on November 26, 2013 and reinstated the case. On January 27, 2014, Defendant Charles Jones, Jr. (“Jones”) was defaulted pursuant to Mass. R. Civ. P. 55(a). On February 24, 2014, Plaintiff filed a document that he entitled Affidavit of Adverse Possession and Memorandum of Ownership (the “Adverse Possession Memorandum”). Notwithstanding its title, this document was not actually a sworn statement, as there is no indication that Plaintiff was placed under oath by a notary or any other person authorized to do so.

On June 4, 2014, MERS filed a Motion to Dismiss Plaintiff’s first amended complaint and for its statutory costs; this motion was supported by a memorandum of law, statement of material facts, and affidavit of Hale Yazicioglu. This motion became moot when Plaintiff filed his second amended complaint on June 30, 2014. On July 29, 2014, MERS and HSBC (together, the “Banks”) jointly filed a Motion to Dismiss Plaintiff’s newly-filed second amended complaint, which also included a request for MERS’s statutory costs. Plaintiff filed its opposition to this Motion to Dismiss on September 25, 2014, as well as a request to voluntarily dismiss the case as against MERS (without statutory costs). A hearing was held on the parties’ motions on October 22, 2014, and, at that time, the matter was taken under advisement.

Based upon the pleadings and the evidence adduced in the parties’ respective motions, I find that the following material facts are not in dispute:

1. Jones acquired title to Locus bydeed from William McGuiggandated October 2, 2002 and recorded in the Bristol County South District Registry of Deeds (the “Registry”) at Book 5737, Page 7. [Note 2] The consideration for this deed was $185,900.00. Locus contains a residential building. Also on October 2, 2002, Jones granted a mortgage on Locus to MPU, which secured a note for $182,598.00. This mortgage was recorded in the Registry at Book 5737, Page 9. The discharge of this mortgage is dated October 28, 2003 and recorded in the Registry at Book 6621, Page 232.

2. On September 29, 2003, Jones granted a mortgage on Locus to MERS, as nominee for Countrywide, which secured a note in the amount of $203,400.00. This mortgage was recorded in the Registry at Book 6569, Page 158, and it was discharged by Discharge of Mortgage dated October 28, 2005 and recorded in the Registry at Book 7870, Page 58.

3. On June 30, 2004, Jones granted a mortgage on Locus to MERS, as nominee for Countrywide, which secured a note in the amount of $35,000.00. This mortgage was recorded in the Registry at Book 7057, Page 321, and it was discharged by Discharge of Mortgage dated October 20, 2005 and recorded with the Registry at Book 7847, Page 147.

4. On September 26, 2005, Jones granted a mortgage on Locus to MERS, as nominee for Fremont, which secured a note in the amount of $258,300.00. This mortgage was recorded in the Registry at Book 7790, Page 42. This mortgage was subsequently assigned to HSBC, as Trustee for Fremont Home Loan Trust 2005-E Mortgage Backed Certificates, Series 2005-E bydocument dated May 30, 2012 and recorded in the Registry at Book 10459, Page 66. [Note 3] This mortgage is still outstanding.

5. Plaintiff commenced this case in August of 2013. Three months later, by power of attorney dated November 19, 2013 (the “Todman POA”), Plaintiff purportedly gave Yolanda G. Todman (Plaintiff’s daughter) (“Todman”) the authority “to care, manage, maintain [among other properties] . . . 30 Adams St., N.B. [i.e., Locus].” The Todman POA states that it “shall remain in effect for six (6) months from the date of execution below.” The Todman POA has never been recorded.

6. On December 18, 2013, the City filed a statement of claim (the “Statement of Claim”) against Locus “for the expense of demolition/board-up, removal, making safe, or making secure”, which was recorded in the Registry at Book 10975, Page 246.

7. On February 19, 2014, in response to a request of this court, Plaintiff filed the Adverse Possession Memorandum, in which he claims that he and his father, Thomas A. Baptiste, entered Locus in 1992 (“said Property being abandoned and no one being upon the Property”) and “cared for, managed and rented [Locus] without interruption and have done so since the year 1992.” [Note 4] Plaintiff further states that he and his father “invested time fixing up and managing the Property and Plaintiff’s last tenant moved out of the Property on or about November, 2012.” Plaintiff also notes, however, that his father died in February of 2013. [Note 5]

8. Bypower ofattorneydated April 10, 2014 (the “Barboza POA”), Plaintiff purportedly gave Karen Barboza (Plaintiff’s fiancee) (“Barboza”) the authority “to manage property of 30 Adams Street, New Bedford, MA, Bristol County [i.e., Locus].” The Barboza POA states that it “shall remain in effect for nine (9) months from the date of execution below.” The Barboza POA was never recorded.

9. Upon the court’s review of documents recorded with the Registry, it appears that on October 27, 2014 (five days after the court’s hearing on the Banks’ Motion to Dismiss), the City of New Bedford Office of the Collector of Taxes recorded an Instrument of Taking dated October 24, 2014 and recorded in the Registry at Book 11208, Page 182, by which it notified all parties that it had taken possession of Locus for non-payment of property taxes. [Note 6]

**************************

In their joint Motionto Dismiss, the Banks argue that dismissal is appropriate because Plaintiff does not have standing to bring this try title action. The Banks further allege that Plaintiff is not in possession of Locus, and that he does not have record title to Locus. In addition to the dismissal of this case, MERS also seeks its statutory costs pursuant to G. L. c. 240, § 3. Plaintiff argues that he does have standing to bring this try title action, and alleges that he has title to Locus (through adverse possession) and also possession thereof.

A. Plaintiff’s Try Title Claim

G. L. c. 240, § 1, provides the jurisdictional basis for a try title action:

If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein . . . may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim.

This statute has been found to require a party bringing a try title action to establish two jurisdictional facts: first, that the party is “a person in possession of the disputed property”, and second that the party “hold[s] a record title to the land in question.” Bevilacqua v. Rodriguez, 460 Mass. 762 ,766 (2011) (quotations omitted). The reason for this requirement is to frame the purpose of the try title action itself, which is to summon an “adverse claimant . . . to show cause why [he or she] should not bring an action to try [his or her] claim, and . . . either to disclaim the relevant interest in the property or to . . . assert the claim in question . . . .” Id. However, “[i]f [the party] cannot satisfy the jurisdictional requirements of [G. L. c. 240, § 1], then the Land Court is without subject matter jurisdiction and the petition must be dismissed.” Id.

The Banks argue that Plaintiff satisfies neither of these jurisdictional requirements. Specifically, they claim (a) that the record title to Locus is held by Jones (and not by Plaintiff), and (b) that Plaintiff is not actually in possession of Locus because he is presently incarcerated at the Bristol County House of Correction and Jail in Dartmouth, Massachusetts. Plaintiff acknowledges his incarceration, but claims that he is nonetheless in constructive possession of Locus; he further argues that he has title to Locus through adverse possession.

1. Possession of Locus

The first jurisdictional requirement of the Try Title Statute is actualpossession of the property in question. Meeting this requirement means that:

the petitioner must have substantially and practically the exclusive possession. It is not sufficient that he has a mere formal or nominal possession, which he can without disadvantage abandon and himself bring an action against the adverse claimant. Nor is it sufficient that he might be treated as a disseisor at the election of the latter; for any person asserting a title to land may be so treated at the election of the rightful owner; and to give such a construction to the statute would be to enable any wrongful claimant to throw upon the rightful owner the burden of establishing his title. The petitioner must prove that he has the exclusive possession, as between himself and the respondent.

Proprietors of India Wharf v. Cent. Wharf & Wet Dock Corp., 117 Mass. 504 , 505 (1875). And, as discussed more fully below in regard to Plaintiff’s claim of adverse possession, “[t]he burden of proof. . . rests on the claimant . . . [as] to all of the necessary elements of [ ] possession.” Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (citations omitted), rev. denied, 442 Mass. 1112 (2004).

Here, Plaintiff claims to be in possession of Locus, but he proffers no concrete evidence to support this claim. All Plaintiff offers is his own uncorroborated, unsworn allegation that he entered Locus in 1992, and that he and/or his father “managed and rented [Locus] without interruption . . .since 1992.” Plaintiff provides no details as to what such management entailed, no documentary evidence supporting a claim that he and/or his father “managed” Locus (such as receipts for work performed), and no information as to any tenants of Locus (such as bank records for rents received, leases, etc.) other than that the “last tenant moved out . . . on or about November, 2012.” Thus, the court has no basis upon which to assess Plaintiff’s allegations that he and/or his father ever possessed Locus -- even before Plaintiff was incarcerated.

With respect to Plaintiff’s incarceration, nothing in the record indicates when he was incarcerated or when he will be released. Nonetheless, Plaintiff argues that, even though he is currently incarcerated (and thus not in actual possession of Locus), he should still be found to have possession of Locus since he has given power of attorney to two different people to manage Locus on his behalf -- one for the period of November 19, 2013 to May 19, 2014 (by Todman, his daughter), and the other for the period of April 10, 2014 to January 10, 2015 (by Barboza, his fiancee). There is nothing in the record to indicate that Plaintiff has executed a third power of attorney, now that both the Todman POA and the Barboza POA have expired.

Plaintiff filed this action in August of 2013. It is unclear whether he was incarcerated at that time. What is known is that, at that time, his father had already passed away, and neither of the above-noted powers of attorney were yet in effect. Moreover, Plaintiff has not submitted affidavit testimony of either Todman or Barboza as to what, if anything, they have done to maintain and/or occupy Locus. [Note 7] As a result, there do not appear to be any facts to support Plaintiff’s claim that he is in possession of Locus.

2. Record Title to Locus

The second jurisdictional requirement of the Try Title Statute is record title to the property in question. Under Bevilacqua and its progeny, it is clear that meeting this requirement entails establishing bona fide record title; recorded deeds may serve as evidence of record title, but the mere fact that a deed is recorded is not determinative of whether the grantee of such deed holds record title. See Bevilacqua, 460 Mass. at 770-771.

Here, the record clearly shows that Jones, not Plaintiff, was the holder of record title to Locus as of the date of commencement of this action. There is no dispute as to the validity of Jones’s deed. Plaintiff explicitly acknowledges this in the Adverse Possession Memorandum, in which he states that “Plaintiff is without deed and record title”. Nonetheless, Plaintiff argues that he holds title to Locus because of his adverse possession claim.

The Try Title Statute under which Plaintiff seeks relief, on its face, and pursuant to the interpretation in Bevilacqua, provides a cause of action to a present holder of record title, and the purpose for such a cause of action is to force adverse claimants to come forward and establish (if they can) the validity of any adverse claim(s) they may have. Here, therefore, the only party who could possibly have standing to bring a try title action with respect to Locus would be Jones (the record title holder), and his claim would be asserted against Plaintiff -- not, as here, the other way around. See Proprietors of India Wharf, 117 Mass. at 505 (without this requirement, the statute would “enable any wrongful claimant to throw upon the rightful owner the burden of establishing his title”).

In sum, what Plaintiff is trying to do in this case is to try a title that he has not established. In order to acquire standing to try title to Locus, Plaintiff would be required to first commence a case under G.L. c. 240 §§ 6-10 to establish his claim to title to Locus by adverse possession, and only after such title were to be established by judgment of this court would Plaintiff be in a position to file an action to try title to Locus.

As a result of the foregoing, I find that Plaintiff does not meet either of the two requirements of the try title statute (i.e., possession of and record title to Locus). Accordingly, I find that Plaintiff’s complaint must be dismissed.

B. MERS’s Request for Statutory Costs

MERS claims that it is entitled to statutory costs, based on G. L. c. 240, § 3, which states that “[i]f the persons notified or summoned appear and disclaim all right and title adverse to the petitioner, they shall recover costs.” MERS further argues that it is entitled to its attorneys’ fees incurred herein because, at the time that it was named as a defendant in the case, it no longer had any interest in Locus because its mortgage had been discharged. [Note 8]

It would appear to this court that the fact that Plaintiff -- who is not only pro se but is also incarcerated -- did not find the discharge (which was recorded approximatelyone year before the case was brought) is not actionable. Plaintiff’s oversight is not only understandable, the burden upon MERS has been minimal. MERS was not brought into the case until eight months after the case was originally filed, and HSBC was brought into the case two and a half months later. The only document that MERS has filed in this action is its Motion to Dismiss. HSBC filed the identical motion a month and a half later. Notably, the same attorney represents both MERS and HSBC (which does have an interest in Locus, as assignee of MERS), so most (if not all) of the work performed by counsel on behalf of MERS overlaps with that performed on behalf of HSBC.

As a result of the foregoing, I find that an award of MERS’s statutory fees against Plaintiff is not warranted and must be denied.

C. Plaintiff’s Adverse Possession Claim

As discussed above, it appears that Plaintiff has improperly brought this case as a try title action under G.L. c. 240, §§ 1-5, when, in fact, the relief he apparently seeks is actually to establish title to Locus through his claim of adverse possession, pursuant to G.L. c. 240, §§ 6-10. Specifically, in his complaint (and subsequent amended complaints), he both asserts that he has acquired title to Locus by adverse possession and requests “a decree of this court [that] it be declared and adjudged that the Plaintiff is the owner of [Locus].” Accordingly, because Plaintiff has raised this issue (which the Banks also addressed, albeit on a very limited basis, in their motion papers), the court will briefly address Plaintiff’s adverse possession allegations.

“A party claiming title to land through adverse possession must establish actual, open, exclusive, and nonpermissive use for a continuous period of at least twentyyears.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). “The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. If any of the elements remains unproven or left in doubt, the claimant cannot prevail.” Sea Pines Condo. III Ass'n, 61 Mass. App. Ct. at 847 (citations omitted); see also Abate v. Freemont Inv. & Loan, No. 12 MISC 464855 (RBF), 20 LCR 630 , 631 (Mass. Land Ct. Dec. 10, 2012) (“the court . . . does not accept ‘legal conclusions cast in the form of factual allegations.’” (quoting Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008))); Tinker v. Bessel, 213 Mass. 74 , 76 (1912) (“The acts of the wrongdoer are to be construed strictly and the true owner is not to be barred of his right except upon clear proof.” (quotation omitted)). “The guiding principle behind the elements of adverse possession is not to ascertain the intent or state of mind of the adverse claimant, but rather to provide notice to the true owner, allowing for the legal vindication of property rights.” Totman, 431 Mass. at 145.

As discussed more fully below, both Plaintiff’s complaint and his Adverse Possession Memorandum are utterly devoid of any factually specific allegations as to any of the elements of adverse possession. Rather, Plaintiff merely recites the elements of adverse possession without elaborating on how he allegedly satisfies them.

1. Possession of Locus for Twenty Years

To establish title by adverse possession, a claimant must prove that such possession was continuous and uninterrupted for a period of at least twenty years. See Everett v. Tavares, No. 06 MISC 320991 (AHS), 18 LCR 235 , 237 (Mass. Land Ct. May 5, 2010), aff'd, 79 Mass. App. Ct. 1115 (2011). This twenty year requirement operates as a function of the statute of limitations for an action to recover land claimed by adverse possession. See G.L. c. 260, § 21. “If the claimant has not been using the property for the required twenty year period, he can satisfy the requisite period by adverse possessors.” Everett, 18 LCR at 237.

Plaintiff alleges vaguely that he entered Locus “in 1992", but he does not state the day (or even the month) on which he allegedly did so. In order to establish his claim of adverse possession, Plaintiff would be required to proffer proof of when exactly he entered Locus and that he occupied same continuously for twenty years -- that is, until the same day of the year in 2012. No such specific allegations are to be found in Plaintiff’s pleading. Rather, all Plaintiff offers is a mere recitation of the legal standard. This will clearly not suffice. See Abate, 20 LCR at 631 (“the court . . . does not accept legal conclusions cast in the form of factual allegations.” (quotation omitted)).

2. Actual Possession of Locus

Turning to the requirement that the possession be “actual” -- it has been found that “use of the land must be continuous, as acts of possession which are few, intermittent, and equivocal are not satisfactory to establish title by adverse possession.” Everett, 18 LCR at 237 (quotation omitted). An adverse possessor must actually make use of the land in question “as the average owner would use it.” Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157, rev. denied, 460 Mass. 1115 (2011). However, an adverse possessor “may rely on the possession of his tenants, whose possession is his own.” Lawrence v. Town Of Concord, 439 Mass. 416 , 426 (2003) (citing Shoer v. Daffe, 337 Mass. 420 , 423–424 (1958)); see also Reed v. Proprietors of Locks & Canals on Merrimac River, 49 U.S. 274, 292 (1850) (“It cannot be denied, that an adverse possession may be kept up without a personal residence where the disseisor gives leases to tenants, puts them in possession, and receives the rents, claiming the land as his own”).

Here, Plaintiff alleges that he continuously rented Locus to tenants from 1992 to 2012, but he provides no specific allegations with respect to such tenants. Plaintiff could only possibly establish actual possession by showing both (a) when tenants occupied Locus pursuant to leases granted by Plaintiff, and (b) that Plaintiff occupied Locus himself for any period in which his tenant(s) did not do so. Moreover, the powers of attorney proffered by Plaintiff would, in the absence of evidence of such tenancy agreements, be insufficient to establish actual possession of Locus for any period in which Plaintiff was incarcerated.

3. Open and Notorious Use of Locus

The next requirement of adverse possession is that the use be “open and notorious”. It has been found that “[t]he nature and the extent of occupancy required . . . vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” Ryan v. Stavros, 348 Mass. 251 , 262 (1964) (quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938)). “[T]he claimant must establish changes upon the land that constitute ‘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 v. Bigelow, 34 Mass. App. Ct. 551 , 556 (quotation omitted), rev. denied, 416 Mass. 1102 (1993). “While the owner's actual knowledge of such use is not required, the use must be such that the owner should have known of it.” Steffens, 61 Mass. App. Ct. at 848; see also Phipps v. Crowell, 224 Mass. 342 , 343 (1916) (“The claimant's acts of dominion and control must be sufficiently open and notorious to constitute notice to all the world ... of an adverse claim of title.”).

Open and notorious possession is typically demonstrated through actions such as installing permanent fixtures on the occupied property. See, e.g., Lyon v. Parkinson, 330 Mass. 374 , 380 (1953) (claimant cleared land, formed rock garden, and installed a wall); Collins v. Cabral, 348 Mass. 797 , 798 (1965) (claimants maintained lawn area, cleared land, filled and graded property, and installed septic system); Shaw v. Solari, 8 Mass. App. Ct. 151 , 153 (1979) (claimant erected chicken coop, built picket fence, and maintained driveway).

Based on what facts the court does have, it seems highly unlikely that open and notorious use could be proved. It simply strains credulity to suggest that no one was ever alerted as to Plaintiff’s alleged adverse use of Locus -- despite the facts that (a) Locus was bought and sold (at least) twice, (b) at least five mortgages on Locus were taken out, and (c) multiple actions were taken by the City with respect to Locus. Such a staggering failure of due diligence on the part of multiple parties -- while not impossible -- seems highly unlikely.

In any case, there is simply nothing in the record other than Plaintiff’s vague allegation that he and his father “cared for, managed and rented [Locus]”. To establish open and notorious use of Locus, far more in the way of specific details as to such use will be required. See Abate, 20 LCR at 631 (“the court . . . does not accept legal conclusions cast in the form of factual allegations.” (quotation omitted)). Here, as elsewhere, Plaintiff’s unspecific allegations do not suffice.

4. Exclusive Use of Locus

The next requirement of adverse possession is that the use must be exclusive. In order to be deemed to be exclusive, the “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.

Here, there are simply no facts in the record as to whether Plaintiff’s alleged use of Locus was exclusive. The court has been unable to ascertain any information as to the chain of title to Locus from 1992 (the year that Plaintiff claims he entered Locus) to 2000. However, the record shows that title to Locus changed hands in 2000, and that two mortgages were executed between 2000 and 2001. The record further shows that, in 2002, title to Locus changed hands again, when William McGuiggan, the record owner of Locus at the time, conveyed Locus to Jones by quitclaim deed, which was recorded. Presumably, in connection with so doing, there may have been actions by the seller, purchaser, and/or their agents to view, inspect, and assess Locus, which likely would have revealed that Locus was being used adversely. In addition, between 2002 and 2005, Jones mortgaged Locus four separate times, with mortgages recorded each of those times. More recently, the Cityfiled its Statement of Claim with the Registry, indicating that, in December of 2013, it took action relative to Locus -- thus suggesting a use of Locus by an outside party. Most significantly, as of October of 2014, title to Locus is subject to an Instrument of Taking based upon non-payment of property taxes. [Note 9] In any event, here, as elsewhere, Plaintiff merely recites the legal standard. As before, such vague allegations will not suffice. See Abate, 20 LCR at 631 (“the court . . . does not accept legal conclusions cast in the form of factual allegations.” (quotation omitted)). As above, this perfunctory recitation of the legal standard will not suffice.

5. Non-Permissive Use of Locus

The final requirement of adverse possession is that the use must be without permission of the record owner(s). “[N]onpermissive use [ ] has been referred to interchangeably in the case law as ‘hostile,’ ‘adverse,’ or ‘under a claim of right.’ The essence of nonpermissive use is lack of consent from the true owner.” Totman, 431 Mass. at 145 (quoting Ottavia v. Savarese, 338 Mass. 330 , 333- 334 (1959).

As with most aspects of Plaintiff’s claim of adverse possession, there is simply nothing in the record with respect to whether the record owner(s) of Locus ever gave Plaintiff, his father, his alleged tenants, and/or his agents under the above-discussed powers of attorney permission to use Locus for any purpose. Here, as elsewhere, Plaintiff’s mere recitation of the requirements of adverse possession is insufficient to establish such a claim. See Abate, 20 LCR at 631 (“the court . . . does not accept legal conclusions cast in the form of factual allegations.” (quotation omitted)).

D. Holding

Per the above discussion, I find that Plaintiff has not established either of the jurisdictional requirements to bring this try title action. As such, I hereby ALLOW the Banks’ Motion to Dismiss Plaintiff’s complaint. The Banks’ requests for MERS’s statutory costs and/or legal fees incurred herein is DENIED. [Note 10]

Judgment to enter accordingly.