This action involves a dispute between Plaintiff AM Properties, LLC (Plaintiff) and Defendant J&W Summit Ave, LLC (Defendant) as to the ownership of a small strip of land (defined, infra, as the Strip) located along a common boundary between the parties properties, as well as the ownership and usage of two passageways (defined, infra, as the Passageway and the Summit Avenue Access) to access the Strip. Plaintiff claims adverse possession of the Strip, while Defendant, in addition to opposing Plaintiffs adverse possession claim, alleges that it has extinguished Plaintiffs easements (the Easements) for use of the Passageway and the Summit Avenue Access.
Plaintiff filed its unverified Complaint on September 27, 2013, by which it sought (a) to establish title by adverse possession over the Strip pursuant to G. L. c. 240, §§ 5-10, and (b) a permanent injunction, pursuant to G. L. c. 185, § 1(k), enjoining Defendant from blocking Plaintiffs easement rights to use the Passageway and the Summit Avenue Access. On November 14, 2013, Defendant filed its unverified Answer and Counterclaims, which interposed two counterclaims, seeking (a) a declaratory judgment, pursuant to G. L. c. 231A, denying Plaintiffs adverse possession claim relative to the Strip, and (b) to establish title by adverse possession over the Passageway and the Summit Avenue Access pursuant to G. L. c. 240, §§ 5-10. [Note 1] A case management conference was held on November 19, 2013. On November 29, 2013, Plaintiff filed its unverified Answer to Defendants Counterclaims.
On October 2, 2014, a status conference was held following the close of discovery, at which the court directed the parties to exchange statements of proposed undisputed facts to determine whether the case should be resolved bytrialor dispositive motion. On November 14, 2014, Defendant filed its statement of undisputed facts, together with an appendix of exhibits. On December 8, 2014, Plaintiff filed its response to Defendants statement of undisputed facts, its own statement of undisputed facts, and an appendix of exhibits. On December 12, 2014, a second status conference was held, at which the court set a briefing schedule for dispositive motions.
On January 23, 2015, Plaintiff filed its Motion for Summary Judgment, together with a supporting memorandum of law and an appendix containing affidavits of Alexander Zelfond (Zelfond) (Manager of Plaintiff), Mikhail Elbrus (Elbrus) (Manager of Arbat Engineering, Inc. (Arbat)), Marian Mogielnicki (Mogielnicki) (general contractor), Polina Mezheritskay (Mezheritskay) (employee at Bazaar -- defined, infra), Roman Zadorozhnyy (Zadorozhnyy) (employee at Bazaar), Victor Sorici (Sorici) (employee at Bazaar), and Ann M. Sobolewski (Sobolewski) (Plaintiffs counsel), as well as partial transcripts of the depositions of Zelfond, Steven Dannin(Dannin) (former propertymanager of Defendants property), and Stephen Springer (Springer) (certified land surveyor). On the same day, Defendant filed its Motion for Summary Judgment, together with a supporting memorandum of law and an appendix containing partial transcripts of the depositions of Zelfond, Dannin, and Springer. [Note 2] Plaintiff filed its opposition to Defendants motion on February 23, 2015. On the same day, Defendant filed its opposition to Plaintiffs motion and a supplemental appendix containing an affidavit of William Adams (Adams) (Member of Defendant) and partial transcripts of the depositions of Dannin and Zelfond. Plaintiff filed its reply brief on March 13, 2015, together with a supplemental appendix containing a supplemental affidavit of Mogielnicki and partial transcripts of the depositions of Dannin and Adams. A hearing was held on both dispositive motions on March 23, 2015, and, at that time, the motions were taken under advisement.
Based upon the evidence in the summary judgment record, I find that the following material facts are not in dispute:
The Chain of Title to the Subject Properties (1923 - 1928)
1. Pursuant to a deed (the 1923 Deed) dated February 1, 1923, and recorded in the Norfolk County Registry of Deeds (the Registry) at Book 1545, Page 536, an entity called Finance Corporation of New England (FCNE) purchased a parcel of land (the FCNE Parcel) [Note 3] located in a triangle formed by Short Street, Beacon Street, and Summit Avenue in Brookline Massachusetts. The FCNE Parcel included the properties that are today known as and located at 1432 Beacon Street (Plaintiff Property) and the property located at 0 (sic) Summit Avenue (Defendant Property).
2. By deed (the 1927 Deed) dated May 2, 1927 and recorded in the Registry at Book 1744, Page 392, FCNE conveyed a portion (approximately 31,240 square feet) of the FCNE Parcel (the Brown Parcel) to Earle I. Brown (Brown). [Note 4] The Brown Parcel included what is today Plaintiff Propertyand Defendant Property. The 1927 Deed contains language creating easement rights in a ten foot passageway (the Summit Avenue Access) connecting Summit Avenue to Short Street, by conveying the Brown Parcel [t]ogether with and subject to the rights of abutting owners in said ten (10) foot passageway, five (5) feet of which is within the limits of the property herebyconveyed. [Note 5]
3. By deed dated June 9, 1927 and recorded in the Registry at Book 1748, Page 91, Brown conveyed the Brown Parcel to Frederick E. Johnston (Johnston). This deed provides that the Brown Parcel retained the right to use the Summit Avenue Access and remained subject thereto.
4. By deed (the Baker Deed) dated April 27, 1928 and recorded in the Registry at Book 1792, Page 503, Johnston conveyed a portion of the Brown Parcel (the Baker Parcel) to Robert S. Baker (Baker). In connection with obtaining title to the Baker Parcel, Baker commissioned a plan of land dated March 20, 1928 entitled Plan of Land in Brookline, Mass (the 1928A Plan), which was recorded in the Registry at Book 1792, Page 503. [Note 6] The 1928A Plan depicts the Baker Parcel as lot A. Baker also commissioned a second plan depicting the Baker Parcel (the 1928B Plan) entitled Plan of Land in Brookline, Mass. Belonging to Robert S. Baker, which was dated March 31, 1928, was prepared by W.H. Mason & Co., Surveyors, and was recorded in the Registry at Book 1792, Page 504. The 1928B Plan depicts the Baker Parcel as subdivided into lots labeled A1" (today, Plaintiff Property) and A2" (today, Defendant Property). The Baker Deed provides that the Baker Parcel retained the right to use the Summit Avenue Access.
The Chain of Title to Defendant Property (1928 - Present)
5. By deed (the Lichtenstein Deed) [Note 7] dated April 27, 1928 and recorded in the Registry at Book 1792, Page 507, Baker conveyed Defendant Property (which is shown as Lot A-2 on the 1928B Plan, and consists of approximately 5,752 square feet of land) to Zelda Lichtenstein (Lichtenstein), subject to a newly-created five-foot easement connecting Plaintiff Property to the Summit Avenue Access (the Passageway). [Note 8]
6. By mesne conveyances between 1928 and 1998, title to Defendant Property came to be held by Nine Summit Avenue, LLC (Nine Summit). [Note 9] By deed (the Defendant Deed) dated August 2, 2011 and recorded in the Registry at Book 29014, Page 54, Nine Summit conveyed Defendant Property to Defendant. Defendant Deed does not specifically reference the Easements, the Passageway, or the Summit Avenue Access.
The Chain of Title to Plaintiff Property (1928 - Present)
7. By mortgage dated September 28, 1928 and recorded in the Registry at Book 1815, Page 535, Baker granted a $16,000.00 mortgage (the Mortgage) upon the lot depicted on the 1928A Plan as lot A1" (i.e., Plaintiff Property) to the National Shawmut Bank of Boston (the Bank). [Note 10]
8. By assignment dated October 19, 1932 and recorded in the Registry at Book 1973, Page 435, the Bank assigned the Mortgage to Arnold J. Bowker (Bowker). [Note 11]
9. In or about 1934, Baker defaulted upon the Mortgage, after which Bowker foreclosed upon the Mortgage.
10. By deed (the Singer Deed) dated August 20, 1934 and recorded in the Registry at Book 2038, Page 281, Bowker conveyed Plaintiff Property to Samuel A. Singer (Singer), together with:
the right to use the five foot passageway [the Passageway] on the Westerly side of Lot A-2 [i.e., Defendant Property], and the ten-foot passageway on the North and Northwesterly sides of said lot A-2 leading out to Summit Avenue [i.e., the Summit Avenue Access] in common with others entitled thereto. [Note 12]
11. Singer later conveyed Plaintiff Property to the Bernard Singer 1988 Trust (the Singer Trust). [Note 13]
12. By deed (the Plaintiff Deed) dated April 2, 1999 and recorded in the Registry at Book 13350, Page 299, the Singer Trust conveyed Plaintiff Property to Plaintiff.
13. According to the Certificate of Organization on file with the Massachusetts Secretary of State, the address of Plaintiff Property is 1432 Beacon Street, Brookline, Massachusetts 02446. Zelfond is listed as the Manager and Agent for Service of Process for Plaintiff. As depicted on the 1928B Plan, Plaintiff Property is 3,000 square feet in area.
Attributes and Usage of the Subject Properties
14. Defendant Property lies at two markedly different elevations. The front portion of Defendant Property (fronting on Summit Avenue) is elevated 5.23 feet above the rear portion of Defendant Property, and is used for a parking lot (the Parking Lot). The rear five feet of Defendant Property along the boundary between Plaintiff Property and Defendant Property (the Strip) is 5.23 feet below the Parking Lot, and is the primary subject of this dispute. The Strip is located entirely on Defendant Property.
15. The Strip is bounded to the north (on Defendant Property) at the point of the elevation change on Defendant Property (i.e., the northerly edge of the Strip) by a 5.23 foot concrete retaining wall (the Concrete Wall). The Strip is bounded to the south (along the boundary between the Strip and Plaintiff Property by a railroad tie retaining wall (the Tie Wall). The elevation of Plaintiff Property is several feet below that of the Strip. The Strip is accessible from Defendant Property via a steep metal stairway (the Stairway), which descends from the western side of the Concrete Wall into the Strip. No evidence is in the record as to when the Stairway was installed, nor by whom.
16. The majority of Plaintiff Property is taken up by a one story commercial building, which has, since at least 1993, been operated as a grocery market. This building presents a continuous street face with the buildings on either side, and fronts directly on Beacon Street. Plaintiff Property has no front or side yards. Plaintiff Property has a small rear yard (the Plaintiff Rear Yard) that abuts Defendant Property along the southern edge of the Strip. The length of the Plaintiff Rear Yard is sixty feet (as shown in the 1928B Plan). The Plaintiff Rear Yard is covered with a concrete pad and contains a wood platform, and is separated from the Strip by the Tie Wall.
17. On August 3, 1993, Zelfond incorporated an entity called I.G.F., Inc. (IGF) and was listed as its president. [Note 14] On August 19, 1993, IGF, as lessee, entered into a five year lease (the Lease) with Sylvia F. Liebman, Judith S. Caro, Carol S. Rabinovitz, and Bernard Singer (together, the Lessor), as agents for the Lessor (i.e., the Singer Trust), for the use and occupancy of Plaintiff Property, which commenced on September 1, 1993 [Note 15], with two five year options to extend the term of the Lease. [Note 16] The Lease designated the leased premises by reference to its street address (1432 and 1432A Beacon Street, Brookline, Massachusetts, together with the basement thereunder), and did not include a description of the square footage or reference to any plan of record. [Note 17] The Lease specifies that IGF would be entitled to use Plaintiff Property:
solely for the sale at retail of groceries and packaged foods and related supplies in accordance with all local, state and federal laws, rules, regulations and codes concerning the sale of such products. Such goods shall be presented and maintained in a clean and sanitary manner so as to be attractive and not cause any health, sanitary, insect or rodent problems.
There is no evidence in the record with respect to IGFs payment of rent pursuant to the Lease.
18. In December of 1993, IGF opened a speciality grocery market in the building on Plaintiff Property, which has continually operated under the name Bazaar International Gourmet (Bazaar). [Note 18] Bazaar operates seven days a week, except when required by law to close for legal holidays. Zelfond testified that he is involved in the day to day operations of Bazaar . . . and [is] personally present at [Plaintiff Property] approximately 5 days per week.
19. In August of 1993, prior to opening Bazaar, IGF entered into a contract with Mogielnicki (a contractor with Mario & Sons Construction) to clean and level the Strip, to repair the Tie Wall, and to install a concrete pad over the entire Strip, which has remained in place since it was originally installed.
20. On August 15, 1993, IGF entered into a contract with Arbat to perform additional renovation work on Plaintiff Property and the Strip, including the installation of compressors in the Strip. Elbrus testified that, during such construction, Arbat used the Strip for storage of supplies and materials. Arbat installed a walk-in cooler on the Strip in 1995 (which was removed in 1999 due to leakage), and installed a replacement walk-in cooler in 2007.
21. In April of 2000, Zelfond dissolved IGF and incorporated a new corporation -- I.V.A. Foods, Inc. (IVA) -- to operate Bazaar. Zelfond is the president of IVA.
22. Zelfond testified that, from January 1994 to the present, employees of Bazaar have maintained the Strip by removing leaves and snow, and have used the Strip to dispose of garbage and store materials. He stated that, throughout that period, Bazaar has used the Strip to store dumpsters, renovation supplies, shopping carts, milk cartons, product display materials, cleaning supplies, waste drums, two-wheelers, cardboard boxes, recycling materials, inventory, ladders, tools, and pallets.
23. From 1998 to 2011, Dannin served as the property manager of Defendant Property for Defendant. He testified that, during that time, he would walk down the Stairway to inspect the Concrete Wall. He also testified that he hired people to monitor Defendant Property (including the Strip) for needed garbage and debris removal. However, there is no evidence in the summary judgment record to establish that Dannin or his hired cleaning crew ever actually set foot on the Strip. [Note 19] Zelfond, Mogielnicki, Elbrus, and the Bazaar employees testified that they have never seen any agent of Defendant (or its predecessor in title) accessing the Strip. Mezheritskay testified that Bazaar maintains video surveillance of the Strip and the Plaintiff Rear Yard.
24. In 1998, Springer, a certified professional land surveyor, prepared a plan (the 1998 Plan) dated May 7, 1998 and entitled ALTA/ACSM Land Title Plan of Lands 9 & 9A Summit Avenue/3Atherton Road and 0 Summit Avenue Brookline (Norfolk County) Mass. In 2001, Springer prepared a revised copy of the 1998 Plan, which was dated August 7, 2001 and entitled ALTA/ACSM Land Title Plan of Lands 9 & 9A Summit Avenue/3Atherton Road and 0 Summit Avenue Brookline (Norfolk County) Mass. (the 2001 Plan).
25. The 1998 Plan indicates that Plaintiff Property belonged to Harold Singer et al., whereas the 2001 Plan indicates that it was owned by Plaintiff. The 1998 Plan does not show the Guardrail (defined, infra), which Defendant installed in the Passageway; the 2001 Plan shows the Guardrail. The 1998 Plan does not show concrete steps at the boundary of Plaintiff Property and the Strip, while the 2001 Plan does. Both the 1998 and 2001 Plan show sixteen striped parking spaces in the Parking Lot, but with different arrangements.
26. Neither the 1998 Plan nor the 2001 Plan depicts any walk-in freezer, compressors, roof overhang, or garbage containers in the Strip. Springer testified that, due to the nature of the 1998 Plan and the 2001 Plan, they would be expected to depict only such objects as were fixed and visible on the surface of a property.
27. Zelfond and the Bazaar employees testified that Plaintiff uses the Passageway and the Summit Avenue Access as an emergency access and fire escape route out of Plaintiff Property. The Bazaar employees testified that they use the Passageway and the Summit Avenue Access to access the Stairway and the Strip when they park their cars on Summit Avenue as a shortcut to and from Plaintiff Property. Elbrus and Mogielnicki testified that their employees regularly used the Passageway, the Summit Avenue Access, and the Strip to bring construction materials when performing work on the Strip and Plaintiff Property, which allowed them to avoid having to bring such materials through the front of the Bazaar, which would disturb Bazaars business and customers.
28. In 1999, Defendant installed a wooden three-foot high post and rail fence (the Guardrail) running along the Concrete Wall on the upper level of Defendant Property. [Note 20] The Guardrail crosses the Passageway and partially impedes access to the Passageway from the Stairway. The testimony of Zelfond and the Bazaar employees establishes that they have continued to use the Passageway despite the presence of the Guardrail. [Note 21] The Guardrail is not depicted on the 1998 Plan.
29. In 1999, Defendant caused the Parking Lot to be repaved and re-striped in a way that extends several parking spaces into the Passageway and the Summit Avenue Access, which partially impedes passage via the Passageway and the Summit Avenue Access when cars are parked in these spaces. There is no evidence that the Parking Lot was striped in this way prior to 1999. Defendant again changed the configuration of the parking spaces in the Parking Lot between 1999 and 2001. As shown on the 1998 Plan, cars parked in spaces numbered 14", 13", and 12" were required to park five feet back from the property line -- preserving access via the Passageway and the Summit Avenue Access. The 1998 Plan and 2001 Plan do not show any striping extending into the Passageway or Summit Avenue Access, but it does exist on the ground. The testimony of Zelfond and the Bazaar employees establishes that theyhave continued to use the Passageway and the Summit Avenue Access despite the presence of cars parked in the Parking Lot.
30. At some point around August to September of 2013, the parties began to engage in discussions regarding Plaintiffs use of the Strip. No evidence in the record indicates that Defendant, at that time, either demanded that Plaintiff stop using the Strip or gave Plaintiff consent to continue such use. Zelfond testified that, at that time, he asserted that Plaintiff had access rights over the [Passageway and Summit Avenue Access] which should not be blocked. At or around that time, the parties began to negotiate a lease, pursuant to which Plaintiff would be authorized to use the Strip. The parties agree that, on September 3, 2013, Defendant sent an email (the Email) to Plaintiff, attaching a draft ofthis proposed lease. [Note 22] Ultimately, however, the parties never reached anagreement as to the proposed lease due to Plaintiffs objection to a termination clause therein. Defendant refused to modify the clause, so Plaintiff refused to sign the unmodified lease, upon which Defendant threatened litigation to compel Plaintiff to remove its equipment from the Strip. Soon thereafter, Plaintiff commenced this action seeking title by adverse possession over the Strip. The first documented instance of any objection by Defendant to Plaintiffs use of the Strip was when Defendant filed its Answer and Counterclaims on November 14, 2013.
Summary judgment is appropriate when there are no genuine issues of material fact and when the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Commr of Corr., 390 Mass. 419 , 422 (1983); Cmty. Natl Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).
Plaintiff seeks to establish title to the Strip by adverse possession, as well as a permanent injunction directing Defendant that it may not block the Passageway and/or the Summit Avenue Access with parked automobiles or the Guardrail (and compelling Defendant to remove the Guardrail and parking spaces striping from the Passageway and the Summit Avenue Access). Defendant opposes Plaintiffs adverse possession claim with regard to the Strip, and argues that Plaintiffs Easements to use the Passageway and the Summit Avenue Access have been extinguished by prescription and/or abandonment. Defendant claims that Plaintiffs adverse possession claim fails because Plaintiff has not used the Strip for twenty years, has not demonstrated actual and continuous possession of the Strip, and cannot show exclusive possession of the Strip. Neither party raised the issue of permissive use in this case.
A. Adverse Possession of the Strip
To acquire title by adverse possession, requires proving nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years. Ryan v. Stavros, 348 Mass. 251 , 262 (1964); see also G. L. c. 260, Sec. 21. In adverse possession cases, the burden of proof to establish each of these required elements is on the party claiming adverse possession. E.g., Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003); Mendonca v. Cities Serv. Oil Co. of Penn., 354 Mass. 323 (1968). Doing so requires showing 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. LaChance v. First Natl Bank & Tr. Co., 301 Mass. 488 , 491 (1938). The nature and extent of the required use of the land varies based upon characteristics of the land in question. See id. at 490. The use of the land must also be continuous, but the twenty-year period may be satisfied by tacking periods of successive adverse use onto periods of prior adverse use if there is privity between the successive users. E.g., Everett v. Tavares, 18 LCR 235 , 237 (Mass. Land Ct. May 5, 2010), affd, 79 Mass. App. Ct. 1115 (2011).
The parties agree that there was some communication between themselves regarding Plaintiffs use of the Strip in or around August or September of 2013, but there is no direct proof of such communication, when it specifically occurred, or whether Defendant demanded that Plaintiff vacate the Strip. The first documented instance of any such objection did not occur until after this case was filed, when Defendant filed its Answer and Counterclaims on November 14, 2013. As such, I find that, in order to establish title by adverse possession, Plaintiff must demonstrate continuous adverse use of the Strip starting on or before November 14, 1993. E.g., Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542, n. 8 (1996) ([T]he filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land. (citations omitted)).
1. Possession for Twenty Years
Plaintiff argues that it has satisfied the twenty-year period for adverse possession because (a) the Lessor should be deemed to have adversely possessed the Strip on behalf of its tenant (IGF), and (b) Plaintiff is entitled to tack its adverse possession of the Strip (through the tenancies of IGF and IVA) to such prior adverse use of the Lessor. Thus, Plaintiff claims, it has satisfied the twenty-year requirement by adversely possessing the Strip since August of 1993 (when IGF entered into possession of Plaintiff Property, and work to improve the Strip began).
An adverse possessor may establish possession by rely[ing] on the possession of his tenants, whose possession is his own. Shoer v. Daffe, 337 Mass. 420 , 423-24 (1958). However, citing Holmes v. Turners Falls Co., 150 Mass. 535 (1890), Defendant argues that Plaintiff cannot tack its adverse use of the Strip to that of the Lessor. In Holmes, which dealt with an assignee of a tenant under a lease that occupied more property than the lease covered, the court found as follows:
If one person disseises another of land, and while in possession leases the land to a tenant who continues to occupy it under his lease, the adverse possession of the tenant may be tacked to that of the landlord, and the possession of the tenant may be said to be that of the landlord; but if the landlord never had possession of the land, nor claimed title to it, and did not include it in the lease, the possession of the tenant beyond the boundaries of the land contained in the lease is not the possession of the landlord, even though the tenant believes that he is occupying only the land demised.
Holmes, 150 Mass. at 547; see also Holmes v. Johnson, 324 Mass. 450 (1949). Further, in Elwell v. Barbrick, 279 Mass. 272 , 277 (1932), the court found that for [a]dverse possession to ripen into title [it] must be such as would have exposed the one in possession to an action because of what was done by him or by his authorization or direction at any time during the prescriptive period that his possession continued. However, in Elwell, the court made no finding that any one of said predecessors in title of the plaintiff ever expressly or impliedly authorized any occupant of lot 18 to enter upon the adjoining lot 19 and there to take possession of it as his agent, servant or personal representative. Id. at 276. This suggests that a lease may impliedly authorize a tenant to adversely use land not included in the leased premises even if the lease does not explicitly say so.
Here, the Lease specified the leased premises by its street address, but not by square footage, metes and bounds, or with reference to a plan. The building on Plaintiff Property takes up most of the lot, with no front or side yards, and only a minimal rear yard. The Plaintiff Rear Yard and the Strip abut, are contiguous, and are on nearly the same grade. By contrast, the Strip is at a significantly lower elevation from the majority of Defendant Property (i.e., the Parking Lot), and is physically divided from the Parking Lot by the Concrete Wall. The Stairs do provide access into the Strip from Defendant Property, but, in view of the Easements, it would have been reasonable to conclude that the Stairs were merely a means for the occupant of Plaintiff Property to access the Passageway and the Summit Avenue Access. No evidence is in the record as to when the Stairway was installed, nor by whom.
When IGF executed the Lease, it immediately caused the Strip to be cleaned, leveled, and paved. IGF used the Strip for storage of equipment and garbage, in keeping with the use clause in the Lease, which directs IGF to keep Plaintiff Property in a clean and sanitary manner so as to be attractive and not cause any health, sanitary, insect or rodent problems. It would appear, from both the physical appearance of Plaintiff Property and the Strip, as well as the terms of the Lease relative to cleanliness, that the Strip was intended to be used as a part of Plaintiff Property.
In view of the totality of circumstances, I find that IGFs usage of the Strip can be attributed to the Lessor (as agent for the Singer Trust) for purposes of determining whether Plaintiff may tack its usage of the Strip onto that of the Singer Trust. Having so found, it remains to be determined whether Plaintiffs use of the Strip can be tacked onto that of IGF (on behalf of the Singer Trust).
An alleged adverse possessor may tack its adverse usage of property onto periods of prior adverse usage if privity of estate exists between the plaintiff and the [prior] adverse possessors. Nauset Rd., LLC v. Chaves, 18 LCR 438 , 440 (2010); see also Sawyer v. Kendall, 64 Mass. 241 , 244 (1852); Blacks Law Dictionary (privity of estate is exists between lessor and lessee, tenant for life and remainderman or reversioner, etc., and their respective assignees, and between joint tenants and coparceners.). In order to tack its alleged adverse use of the Strip onto that of the Lessor (through the tenancy of IGF), there must be privity between these entities. Everett, 18 LCR at 237.
From 1993-1998, IGF was in privity of estate with the Lessor based on the Lease. There is no evidence that either IGF or the Lessor exercised either of the optional extensions of the Lease when it expired on its own terms in 1998. Yet, IGF remained in possession.
When a tenant holds over after the expiration of a lease term, the tenancy becomes either a tenancy at sufferance or a tenancy at will which is a question of fact. E.g., Staples v. Collins, 321 Mass. 449 , 451 (1947); Benton v. Williams, 202 Mass. 189 , 192 (1909); Ames v. Beal, 284 Mass. 56 , 59 (1933). A unlike a tenant at will, a tenant at sufferance stands in no privity to the landlord. Margosian v. Markarian, 288 Mass. 197 , 199 (1934). However, a tenancy at sufferance can be converted into a tenancy at will by the implied agreement of the parties, the existence and terms of which may be inferred from their conduct. C.A. Spencer & Son Co. v. Merrimac Valley Power & Bldgs. Co., 242 Mass. 176 , 180 (1922).
A tenancy at will arises out of an express or implied agreement for the tenant to use and occupy the premises of the landlord for consideration -- usually (but not necessarily) the payment of rent. E.g., Williams v. Seder, 306 Mass. 134 , 136 (1940). In a tenancy at will, the relationship between the landlord is contractual, and therefore the parties are in privity of contract and estate. Id. And, courts have routinely found that, where a tenant pursuant to a written lease remains in possession after the expiration of a lease with clear consent and agreement of the landlord, their tenancy relationship may be deemed to continue (albeit, technically, in the form of an at-will tenancy, rather than a tenancy for a specific term) subject to the same terms as set forth in the expiring lease. E.g., Walker Ice Co. v. Am. Steel & Wire Co., 185 Mass. 463 , 467 (1904).; see also Lease, ¶ 10.
Here, it is clear that IGF remained in possession after the Lease expired with permission of the Lessor. Thus, I find that the tenancy relationship between IGF and the Singer Trust continued until Plaintiff purchased Plaintiff Property in 1999. Further, I find that, by purchasing Plaintiff Property from the Singer Trust, Plaintiff was in privity with the Singer Trust. Therefore, I find that Plaintiff can tack its use of the Strip onto that of the Singer Trust for purposes of establishing adverse possession. It remains to be determined whether Plaintiff can establish use of the Strip for the period (starting in 1999) after it purchased Plaintiff Property.
Plaintiff, in essence, appears to be a holding company that exists to serve as the record owner of property, including Plaintiff Property. Plaintiff itself does not appear to have conducted any actual activity at Plaintiff Property, so its claim of adverse possession can succeed only if Plaintiff can be found to have occupied the Strip via the actual occupants of the Plaintiff Property from 1999 through 2013 that is, IGF and IVA, each doing business as the Bazaar.
Defendant has conceded that Plaintiff was operated under the name of IGF at or around the time of the Lease. Zelfond is principal of both entities, as well as IVA. And, while there is no direct evidence of a formal legal relationship between Plaintiff, IGF, and IVA, the parties appear to agree that such a relationship does actually exist. This acknowledged relationship, on its own, should be enough to establish privity between these entities.
When Plaintiff acquired Plaintiff Property in 1999, IGF was still in possession of said premises as a tenant at will. It is true that these entities did not form a new written lease for IGFs occupancy of Plaintiff Property. However, by their conduct, it appears that both Plaintiff (helmed by Zelfond) and IGF (also helmed by Zelfond) mutually consented to the continuation of the tenancy relationship to which Plaintiff succeeded (as landlord of IGF) upon acquiring Plaintiff Property. See, e.g., LiDonni, Inc. v. Hart, 355 Mass. 580 , 583 (1997) (In the absence of an express agreement, a contract implied in fact may be found to exist from the conduct and relations of the parties.); Kirk v. United States, 451 F.2d 690, 695 (10th Cir. 1971), cert. denied. 406 U.S. 963 (1972). ([An] implied contract is inferred from the acts of the parties and other circumstances showing an intent to contract.).
Payment of rent by IVA to Plaintiff would be prima facie evidence of such an intent. See Staples, 321 Mass. at 451. However, such payment is not a sine qua non for a finding of an implied lease. Thus, the fact that there is no evidence of payment of rent to Plaintiff is not determinative; rather, the totality of circumstances of the parties conduct must be assessed. Here, Zelfond, acting on behalf of Plaintiff, IGF, and IVA, has played a role both as landlord and tenant of Plaintiff Property since 1993 both before and after Plaintiffs purchase of Plaintiff Property. Further, when Plaintiff acquired Plaintiff Property, Zelfond controlled both the landlord and the tenant, and, for all intents and purposes, appears to have treated the two entities effectively as one. Additionally, Plaintiff Property has been the primary place of business for Plaintiff, IGF, and/or IVA since 1993 during which time Bazaar has been operated continuously by IGF and IVA, both controlled by Zelfond.
Based upon the facts at issue here, I find that the conduct of IGF and Plaintiff evidences an intent to continue IGFs tenancy at will at Plaintiff Property (which arose upon the expiration of the Lease), and thus that such tenancy was created upon Plaintiffs purchase of Plaintiff Property. [Note 23] I therefore further find that, in view of the tenancy relationship between IGF and Plaintiff, IGFs use of the Strip from 1999 to 2000 (as tenant) is attributable to Plaintiff (as landlord). Further, I find that the conduct of IVA and Plaintiff evidences an intent to create a tenancy at will for IVAs use and occupancy of Plaintiff Property, which tenancy arose in April of 2000 and continues to this day. [Note 24] As such, I find that Plaintiff, by tacking its own use of the Strip (through its implied tenancy relationships with IGF and IVA) to that of the Singer Trust (through its tenancy relationship with IGF), has satisfied the requirement of twenty years use of the Strip. It remains to be determined whether such use satisfies the above-noted five requirements of adverse possession namely, that such use was actual, open, notorious, exclusive, and adverse.
2. Actual, Open, and Notorious Possession
In order to gain title through adverse possession, the possessors use must be actual, which means that the use of the land must be continuous, as the acts of possession which are few, intermittent, and equivocal are not satisfactory. Everett, 18 LCR at 237. The possessor must further make open and notorious use of the land, which requires using it as the average owner would use it. Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157, rev. denied, 460 Mass. 1115 , 957 N.E. 2d 241 (2011). Plaintiff alleges that it and its predecessors in title actually and continuously possessed the Strip since August of 1993 (when IGF took possession of Plaintiff Property). [Note 25] In August of 2013, after taking possession of Plaintiff Property, IGF entered caused the Strip to be cleaned, leveled, and paved, and repaired the Tie Wall. The Strip has been paved over since then. IGF also entered into a contract with Arbat to install compressors on the Strip in 1993, during which Arbat stored supplies and materials on the Strip. Arbat later installed a walk-in cooler in 1995, which was removed in 1999 due to leakage and replaced in 2007. By contracting for this work and thereafter using the Strip, so improved, IGF and IVA made use of the Strip as an average landowner would use it. See Brandao, 80 Mass. App. Ct. at 157.
Defendant argues that, because the cooler was not located on the Strip from 1999 to 2007, Plaintiffs use of the Strip was not continuous. However, even during that period, IVA continued to maintain the Strip, used it to dispose of garbage, and used it to store materials by employees of Bazaar. In conjunction with the other acts taken by IGF and IVA, and given the nature of the space, the storage of materials in the Strip demonstrates IGF and IVAs actual use of the Strip. All of these actions 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. LaChance, 301 Mass. at 491.
As a final point, Defendant, citing Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993), argues that making non-permanent improvements on the Strip and using it to store items that were not attached to the Strip do not constitute actual possession. This claim has no applicability here, as Plaintiff caused the Strip to be leveled and paved -- a permanent improvement of the Strip that exists today.
In view of the foregoing, I find that Plaintiff has established actual, open, and notorious use of the Strip for at least twenty years.
3. Exclusive Possession
The final requirement of adverse possession is that the use of the land must be exclusive, which requires that the use 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. Id. at 557. The type of land at issue and the usage of land situated similarly ultimately dictates what constitutes exclusive use. See LaChance, 301 Mass. at 490. For example, [e]vidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city. Id. at 490. Additionally, acts of enclosure or cultivation are evidence of exclusive possession. Labounty v. Vickers, 352 Mass. 337 , 349 (1967). In order to interrupt a period of exclusive use, the [record title] owner's entry, with few exceptions, must be done openly on the land, so as to give notice of the interruption. Pugatch, 41 Mass. App. Ct. at 541-542.
Plaintiff alleges exclusive possession of the Strip based upon the testimony of employees of Bazaar, who stated that they spend a large amount of time on the Strip every day, yet never witness other people other than other Bazaar employees enter the area. Citing Shaw v. Solari, 8 Mass. App. Ct. 151 , 156-57 (1979), Plaintiff argues that, even though the Strip is not completely enclosed, such an enclosure was not necessary because third parties were excluded just as a record owner would have been expected to do. [Note 26]
Defendant offers the testimony of Dannin, former property manager of Defendant Property, who testified that he made occasional visits to the Strip, but that he usually did not descend onto the Strip, but only used the Stairway to monitor the state of the Concrete Wall. There is no evidence that Dannin (or anyone authorized by him) ever actually set foot on the land area of the Strip. Dannins testimony is credible, but even if he did make occasional use of the Stairway (not the Strip), this would not be enough to establish that Plaintiffs use was non-exclusive because it did not put Plaintiff on notice. See Pugatch, 41 Mass. App. Ct. at 541-542; Bowen v. Guild, 130 Mass. 121 , 123 (1880). Rather, Dannins conduct suggests that it was directed primarily towards maintenance of Defendant Property (specifically, the Concrete Wall, located on Defendant Property), not in furtherance of any particular concern with respect to the Strip, nor an attempt to make use of (or to disturb Plaintiffs use of) the Strip. Indeed, Dannins testimony does not even establish that Dannin knew, at the time, that the Strip was owned by Defendant or that Plaintiff was using it without right conveyed by record title.
The testimony of the Bazaar employees is also credible. It establishes that, despite routine use of the Strip by Bazaar employees, they never observed Dannin (or anyone on Defendants behalf) using or accessing the Strip. Even if they had seen such conduct, it is not reasonable to expect that the owner of a small area (of apparent use and value only to the operator of the Bazaar) located behind a commercial business in a urban area would be required to attempt to exclude every person who might occasionally venture down the Stairway.
In view of the foregoing discussion, I find that Plaintiff has established exclusive use of the Strip for at least twenty years. Having already found the remaining elements of adverse possession to have been met, I find that Plaintiff has acquired title to the Strip by adverse possession.
B. Extinguishment of Plaintiffs Easements
Defendants second counterclaim seeks to extinguish the Easements based upon Defendants adverse use of the Passageway and Summit Avenue Access and/or Plaintiffs abandonment of same. Plaintiff argues that it has not abandoned the Easements, that Defendants conduct has been insufficient to extinguish the Easements, and that Defendant does not meet the twenty-year requirement of adverse use needed to extinguish the Easements by Prescription.
Easements can be extinguished by adverse possession upon a showing of occupation of the land irreconcilable with its use as a way, openly, notoriously, adversely, and without interruption for more than twentyyears.. E.g., Emery v. Crowley, 371 Mass. 489 , 495 (1976). Such possession must also be exclusive. See Ryan, 348 Mass. at 262. If any of the elements of adverse possession are not present, the claim must fail. See Mendonca, 354 Mass. at 326.
Defendant Property was first burdened by the Passageway pursuant to the Lichtenstein Deed in 1928. Plaintiffs right to use the Passageway arose in 1934 pursuant to the Singer Deed, which granted a right to use the five-foot passageway on the westerly side of said Lot A-2 -- i.e., the Passageway. This right has never been extinguished by any recorded deed or other document. The Singer Deed also granted a right to use the ten-foot passageway on the North and Northwesterly sides of said Lot A-2 leading out to Summit Avenue -- i.e., the Summit Avenue Access, which was created pursuant to the 1927 Deed (by which FCNE conveyed the Brown Parcel to Brown), which stated that [s]aid passageway ten (10) feet wide is to be kept forever open for the benefit of the land hereby conveyed and for the benefit of the remaining land of this grantor. Plaintiff Property is part of the remaining land of the FCNE, so it has an appurtenant right to use the Summit Avenue Access; this right has never been extinguished by any recorded deed or other document.
Notably, neither the Singer Deed nor any subsequent deed in Plaintiffs chain of title contains language limiting the purposes for which the Passageway or the Summit Avenue Access may be used; as such, the Passageway and the Summit Avenue Access should be characterized as general rights of way, which may be used for such purposes as are reasonably necessary to the full enjoyment of the premises to which the right of way is appurtenant. Tehan v. Security Natl Bank of Springfield, 340 Mass. 176 , 182 (1959).
The evidence in the record indicates that Plaintiff (though its tenants) has continually used the Passageway and the Summit Avenue Access as an alternate egress and fire escape route to Summit Avenue since IGF took possession in August of 1993. Thus, I find that the Easements have not been extinguished by abandonment. In 1999, Defendant installed the Guardrail, which partially impedes access to the Passageway, but does not entirely block such access. [Note 27] At or around the same time, Defendant re-striped the Parking Lot, which resulted in several parking spaces being located partially within the area of the Passageway and the Summit Avenue Access. When cars are parked in these spaces, passage via the Passageway and the Summit Avenue Access is impeded, but not completely blocked. The testimony of Bazaar employees indicates that they continue to use the Passageway and the Summit Avenue Access to access the Strip and Plaintiff Property -- notwithstanding the impediments to access across Defendant Property.
Based upon the foregoing, I find that Defendant, by its conduct, has not extinguished the Easements by hindering access across the Passageway and/or the Summit Avenue Access. Even if its conduct did completely block access across these ways, Defendant offered no evidence suggesting any adverse use of the Passageway and/or the Summit Avenue Access prior to 1999. As such, I find that Defendant has not satisfied the twenty-year period to extinguish the Easements by adverse use. Therefore, I find that the Easements have not been extinguished by adverse possession.
C. Plaintiffs Request for a Permanent Injunction
Per the foregoing discussion, Plaintiff retains its rights to use the Passageway and the Summit Avenue Access. Pursuant to Count II of the Complaint, Plaintiff now seeks a permanent injunction enjoining Defendant from blocking the Easements.
When a deeded easement specifies the width of a deeded passageway and requires that it be kept open, all encroachments in the easement are strictly prohibited. E.g., Martin v. Simmons Props., LLC, 467 Mass. 1 , 15-16 (2014). Further, the servient estate owner cannot make use of land burdened by an easement where the use significantly lessens the utility of the easement, increases the burden on the easement owner in its use and enjoyment, or frustrates the purpose for which the easement was originally created. E.g., M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 , 92-93 (2004).
Here, by striping the Parking Lot in such a way as to promote the parking of cars in parking spaces located within the Passageway and Summit Avenue Access, and by installing the Guardrail across the Passageway, Defendant has significantly hindered Plaintiffs use of the Passageway and the Summit Avenue Access. By deed, Plaintiff has a right to use the Passageway and the Summit Avenue Access, which are specifically described as five feet in width, which width may not be encroached upon by Defendant. See Martin, 467 Mass. at 15-16. Accordingly, I find that Defendant must remove the Guardrail from the Passageway and re-stripe the Parking Lot (and, if necessary, install a barrier) so as to ensure that parked cars do not park within the area of the Passageway or the Summit Avenue Access.
D. Conclusion and Holding
Based upon the foregoing discussion, Plaintiffs Motion for Summary Judgment is hereby ALLOWED in all respects. Defendants Motion for Summary Judgment is hereby DENIED in all respects, with prejudice. Plaintiff is hereby awarded title to the Strip by adverse possession. Defendant is hereby ORDERED to remove the Guardrail from the Passageway and to re-stripe the Parking Lot (and, if necessary, install a barrier) so as to ensure that parked cars do not park within the area of the Passageway or the Summit Avenue Access.
Judgment to enter accordingly.
[Note 1] In its second counterclaim, Defendant further alleges that it is entitled to a declaration of its exclusive ownership and of [Plaintiff]s abandonment of the [Passageway and Summit Avenue Access]. It appears that, by this counterclaim, what Defendant seeks is not actually a finding that Defendant has acquired title to the Passageway or the Summit Avenue Access byadverse possession, but rather an order declaring that it Plaintiffs Easements to use said ways has been extinguished through prescriptive use and/or abandonment.
[Note 2] In its motion, Defendant stated that it did not intend to move for summary judgment with respect to either its counterclaim or Plaintiffs cause ofaction regarding the Passagewayand the Summit Avenue Access. Plaintiffs motion was not so limited.
[Note 3] The 1923 Deed describes the FCNE Parcel with reference to an 1888 plan that is not in the summary judgment record. The FCNE Parcel can also be seen in a plan of land dated August 23, 1924 entitled Plan of Land in Brookline (the 1924 Plan), which was recorded in the Registry at Book 1619, Page End.
[Note 4] The Brown Parcel is described in the 1927 Deed with reference to a plan of land (the 1925 Plan) entitled Plan of Land in Brookline, which is dated April 13, 1925, was prepared by W.A. Mason & Sons Co., and was recorded in the Registry at Book 1641, Page 541. The 1925 Plan shows the Brown Parcel as extending farther to the west from the subject properties. The court has taken judicial notice of the copy of the 1925 Plan recorded in the Registry, which was not submitted into evidence by the parties.
[Note 5] The 1927 Deed further provides that [s]aid passageway ten (10) feet wide is to be kept forever open for the benefit of the land hereby conveyed and for the benefit of the remaining land of this grantor. The Summit Avenue Access is depicted on the 1928A Plan as connecting Summit Avenue and Short Street, straddling the northern boundaries of lots A and B with the southern five feet of the Summit Avenue Access located on lots A and B, and the northern five feet located on the adjacent lot to the north. On the 1924 Plan, the Summit Avenue Access runs along the same path as depicted on the 1928A Plan, but stops well short of Short Street.
[Note 6] The court takes judicial notice of the copy of the 1928A Plan recorded in the Registry, which was not submitted into evidence by the parties.
[Note 7] The court takes judicial notice of the copy of the Lichtenstein Deed recorded in the Registry, which was not submitted into the summary judgment record by the parties.
[Note 8] Specifically, the Lichtenstein Deed were conveyed subject to and with the benefit of the passageways shown on [the 1928B Plan] for all purposes for which passageways are commonly used in the Town of Brookline . . . .
[Note 9] By deed dated May 3, 1928 and recorded in the Registry at Book 1793, Page 518, Lichetenstein conveyed Defendant Property to Albert K. Williams (Williams). By deed dated October 4, 1929, and recorded in the Registry at Book 1872, Page 116, Williams conveyed Defendant Property back to Johnston (who had owned it in 1927 as part of the Baker Parcel). By deed dated July 6, 1953 and recorded in the Registry at Book 3182, Page 529, Johnston conveyed Defendant Property to Jacob Slavin. By trustees certificate dated October 14, 1975 and recorded in the Registry at Book 5254, Page 711, Bessie Slavin become the trustee of Jacob Slavins estate upon his death. By deed dated May 7, 1998 and recorded in the Registry at Book 12502, Page 367, Bessie Slavin, as trustee, conveyed Defendant Property to Nine Summit Avenue, LLC. The court takes judicial notice of the copies of each of the foregoing deed recorded in the Registry, which were not submitted into the summary judgment record by the parties.
[Note 10] The court has taken judicial notice of the copy of the Mortgage recorded in the Registry.
[Note 11] The court has taken judicial notice of the copy of this assignment of the Mortgage recorded in the Registry.
[Note 12] The is the easement established by the Lichtenstein Deed, discussed, supra.
[Note 13] The existence of this deed is not disputed by the parties, but it was not submitted into evidence, and the court has been unable to find a copy of it in the Registry.
[Note 14] Defendant, in its memorandum in support of its motion, notes that, at or around the time of the Lease, Plaintiff was then operating under the name I.G.F., Inc.[ ]. There is no direct evidence of anysuch relationship, but the parties appear to agree that it existed.
[Note 15] Pursuant to the terms of the Lease, IGF was entitled to enter into possession of Plaintiff Property prior to the commencement date to begin making improvements.
[Note 16] Specifically, Paragraph 10 of the Lease provides that if [IGF] is not in default under this lease, [IGF] shall have the right and option to extend the term of this lease . . . for two additional five (5) year periods, such options to be exercised by giving notice to [Lessor] during January, 1998 and the terms, covenants, conditions and provisions of this lease shall apply during the extended term except that the rent shall be the fair rental value of the permises as agreed by the parties . . . . The summary judgment record does not indicate whether IGF officially provided notice of its exercise of either of these five-year extensions.
[Note 17] Zelfond testified that [d]uring my negotiations . . . about the [Lease], no distinction was made between the Strip and the area behind the [Bazaar] that is actually part of [Plaintiff Property].
[Note 18] It is unclear from the summary judgment record whether IGF ever filed a d/b/a to operate as Bazaar.
[Note 19] Dannin testified that I dont think I usually ventured much further than the stairs, and described that access as occasional[ ]. He testified that his employees would monitor the Strip for garbage, but did not specify that they actually entered the Strip.
[Note 20] Additionally, Zelfond testified that, in 2007, he caused a chain link fence (with a No Trespassing sign facing the Parking Lot) to be installed atop the Concrete Wall (but not blocking the Passageway) to prevent people from being able to jump down from the Concrete Wall into the Strip. Photographs in the record show this fence as located along the Guardrail on the side thereof closer to the Strip and Plaintiff Property. There does not appear to have been any objection by Defendant to the installation of this fence.
[Note 21] Zelfond testified that it remains possible to use the Passageway, but that it is difficult to squeeze through the space that exists between the end of the [Guardrail] and the wall of the abutting building. Further, the Guardrail makes it difficult to carry things up or down the [Staircase] and prevents you from moving quickly through the opening.
[Note 22] The record does not contain a copy of the Email. Zelfonds affidavit states that a copy of the Email was annexed thereto as Exhibit E, but no such exhibit was included. Nothing in the record indicates that Defendant, in the Email, demanded that Plaintiff vacate the Strip or consented to Plaintiffs use thereof.
[Note 23] Even if no implied tenancy could be found, given the close relationship between IGF and Plaintiff (both controlled by Zelfond), an implied agency relationship appears to have existed between Plaintiff (as principal, and owner of Plaintiff Property, which was acquired for the purpose of operating the Bazaar) and IGF (as agent, and operator of the Bazaar). E.g., LaBonte v. White Const. Co., 363 Mass. 41 , 45 (1973).
[Note 24] As with IGF, even if no implied tenancy could be found between IVA and Plaintiff, an implied agency relationship appears to exist between Plaintiff and IVA. See LaBonte, 363 Mass. at 45.
[Note 25] The relationship between Plaintiff, IGF, IVA, and Bazaar is discussed, supra.
[Note 26] It should be noted that, effectively, the Strip is partially enclosed by the presence of the Guardrail, which impedes access to the Staircase. Thus, to the extent that the Strip is enclosed, such enclosure was made by Defendant, which suggests a lack of intent to use the Strip, whose utility to Defendant is questionable at best. It is also notable that, in 2007, Plaintiff caused the Strip to be partially enclosed by installing a chain link fence (with a No Trespassing sign facing the Parking Lot) along most of the length of the Guardrail.
[Note 27] The Guardrail is only approximately three feet high, and therefore could be stepped over by any reasonably able-bodied person.