This action involves a dispute between Plaintiff AM Properties, LLC (Plaintiff) and Defendant J&W Summit Ave, LLC (Defendant) as to the ownership of the Strip [Note 1] (which is located along a common boundary between the parties properties), as well as the ownership and usage of the Passageway [Note 2] and the Summit Avenue Access [Note 3] 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 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 4] 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 [Note 5]), 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 property manager 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 6] 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.
The court has issued a decision (the Decision) as of todays date. In accordance with the Decision, it is hereby:
ORDERED and ADJUDGED 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; and,
ORDERED and ADJUDGED that IGFs usage of the Strip can be attributed to the Lessor [Note 7] (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; and,
ORDERED and ADJUDGED that the tenancy relationship between IGF and the Singer Trust continued until Plaintiff purchased Plaintiff Property in 1999; and,
ORDERED and ADJUDGED that by purchasing Plaintiff Property from the Singer Trust, Plaintiff was in privity with the Singer Trust; and,
ORDERED and ADJUDGED that Plaintiff can tack its use of the Strip onto that of the Singer Trust for purposes of establishing adverse possession; and,
ORDERED and ADJUDGED 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 8]; and,
ORDERED and ADJUDGED 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 9]; and,
ORDERED and ADJUDGED 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); and,
ORDERED and ADJUDGED 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; and,
ORDERED and ADJUDGED that Plaintiff has established actual, open, and notorious use of the Strip for at least twenty years; and,
ORDERED and ADJUDGED that Plaintiff has established exclusive use of the Strip for at least twenty years; and,
ORDERED and ADJUDGED that Plaintiff has acquired title to the Strip by adverse possession; and,
ORDERED and ADJUDGED that the Easements have not been extinguished by abandonment; and,
ORDERED and ADJUDGED that Defendant, by its conduct, has not extinguished the Easements by hindering access across the Passageway and/or the Summit Avenue Access; and,
ORDERED and ADJUDGED that Defendant has not satisfied the twenty-year period to extinguish the Easements by adverse use; and,
ORDERED and ADJUDGED that the Easements have not been extinguished by adverse possession; and,
ORDERED and ADJUDGED 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; and,
ORDERED and ADJUDGED that Plaintiffs Motion for Summary Judgment is hereby ALLOWED in all respects; and,
ORDERED and ADJUDGED that Defendants Motion for Summary Judgment is hereby DENIED in all respects, with prejudice.
By the court.
[Note 1] The properties at issue are 1432 Beacon Street, Brookline, Massachusetts (Plaintiff Property) and 0 (sic) Summit Avenue, Brookline, Massachusetts (Defendant Property). The Strip is defined in the Decision as the rear five feet of Defendant Property located along the boundary between Plaintiff Property and Defendant Property, which is 5.23 feet below the Parking Lot (defined, infra). The Strip is located entirely on Defendant Property, and iis 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. 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. The Parking Lot is defined in the Decision as the front portion of Defendant Property (fronting on Summit Avenue), which is elevated 5.23 feet above the Strip, and is used for a parking lot.
[Note 2] The Passageway is defined in the Decision as a five-foot passageway connecting Plaintiff Property to the Summit Avenue Access (defined, infra) created by deed dated April 27, 1928 and recorded in the Norfolk County Registry of Deeds (the Registry) at Book 1792, Page 507, which describes the right to use the Passageway as the benefit of the passageways shown on [the 1928B Plan -- defined, infra] for all purposes for which passageways are commonly used in the Town of Brookline . . . . The 1928B Plan is defined in the Decision as a plan of land 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.
[Note 3] The Summit Avenue Access is defined in the Decision as a ten foot passageway connecting Summit Avenue to Short Street, which was created by deed (the 1927 Deed) dated May 2, 1927 and recorded in the Registry at Book 1744, Page 392. The 1927 Deed contains language creating rights of abutting owners in said ten (10) foot passageway, five (5) feet of which is within the limits of the propertyherebyconveyed. The 1927 Deed 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 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. The 1928A Plan shows the Summit Avenue Access as connecting Summit Avenue and Short Street, straddling the northern boundaries of lots A and B on said plan 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.
[Note 4] 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 5] Bazaar is defined in the Decision as the speciality grocery market that has been operated by I.G.F., Inc. (IGF) and I.V.A., Inc. (IVA) in the building on Plaintiff Property since December of 1993 under the name Bazaar International Gourmet.
[Note 6] 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 7] The Lessor is defined in the Decision as Sylvia F. Liebman, Judith S. Caro, Carol S. Rabinovitz, and Bernard Singer, as agents for the Bernard Singer 1988 Trust (the Singer Trust) in a lease (the Lease) dated August 19, 1993, pursuant to which IGF leased Plaintiff Property.
[Note 8] 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 9] 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.