MICHAEL KRIEGER, JUDY WONG and JEFFREY CARRUTHERS as Trustees of the 8 Kinross Road Condominium Trust, and HJK REALTY LLC, v. LANARK LJS LLC.

Introduction

This is a case between neighboring property owners in the densely-populated, parking-scarce Allston/Brighton section of Boston, and involves three claims.

The first — by plaintiff HJK Realty LLC (“HJK”) against defendant Lanark LJS LLC (“Lanark”) — is for adverse possession. For years, HJK — a large residential landlord in Boston and, of relevance here, the current owner of Unit B in the 8 Kinross Road Condominium development [Note 1] — has been charging and receiving rents from the tenants of Unit B for the use of a parking space it does not own. That space begins on the common area of the 8 Kinross Condominium and then, in material part (approximately half its total area) extends onto the neighbor’s land — the three-family residence at 127 Lanark Road, recently purchased by defendant Lanark LJS LLC. [Note 2] When Lanark’s post-purchase survey showed the encroachment and Lanark put up a fence to block further usage of its land, HJK brought this action claiming adverse possession. To succeed in that claim, it has the burden of proving actual, open, notorious, and non-permissive use of the area claimed, exclusive and adverse, for at least twenty continuous and uninterrupted years. [Note 3] Because HJK lacks twenty years of occupancy on its own, and because the occupancy to which it seeks to “tack” was (1) by the tenants of Unit B prior to its purchase of that Unit, and (2) by its own early tenants prior to charging for the space or referring to it in its leases, its case depends upon those prior tenants having occupied the area HJK now claims, under a claim of right that can “fairly be said” to have been made for HJK or the prior owners of Unit B, so that HJK can “tack” onto their occupancy as well. [Note 4]

The other two claims are by the Condominium trustees against Lanark. Lanark’s initial survey of the boundary line between its newly-purchased property and that of the abutting Condominium was erroneous and, before discovering this (a subsequent survey was conducted, which the parties now agree shows the correct boundary line [Note 5] ): (1) it cut down a large tree, since found to have straddled the true boundary, and (2) for building code compliance, built an emergency exit stairway from the second floor of its building to the ground, which has now been found to encroach approximately a foot into an un-tended section of the common area of the Condominium behind the condominium building. [Note 6] To pursue Lanark in connection with these errors, HJK went to the Condominium trustees and received their authorization to add those claims to this lawsuit, in the Condominium’s name, with HJK acting as the trustees’ agent and paying the suit’s expenses.

The case was tried before me, jury-waived. Based on the testimony and exhibits admitted into evidence at trial, my assessment of the credibility, weight and inferences to be drawn from that evidence, and as more fully set forth below, I find and rule that HJK has not proved adverse possession of the encroachment area for twenty years or more, has thus trespassed, and must compensate Lanark for that trespass by paying it the parking revenues HJK has received since the time Lanark purchased the property, which I find to be the value of that wrongful use and thus the proper measure of damages. [Note 7] I further find and rule that Lanark wrongfully cut down the tree, and must compensate the Condominium for the replacement cost of that tree in the amount set forth below. Since the cutting was not “willful” within the meaning of G.L. c. 242, §7, but rather done in good faith reliance on a professional survey which later turned out to be in error, only single damages are awarded. Finally, I find and rule that the one-foot encroachment of the exit structure onto an otherwise un-used, debris-filled area at the back of the Condominium buildings is de minimis and need not be removed, but that Lanark must compensate the Condominium for the fair market value of that area, to be determined in a separate, new proceeding to be filed in a court of appropriate jurisdiction. Lanark’s conversion claim is dismissed, with prejudice, because no personal property was wrongfully taken, only land, see Bleicken v. Stark, 61 Mass. App. Ct. 619 , 622, n. 2 (2004).

Facts

These are the facts as I find them after trial.

The relevance of the facts related to the Condominium’s tree and exit stairway claims is apparent and straightforward. Because the significance of the ones related to HJK’s adverse possession claim may be clearer if put in context, I begin with a brief summary of the law applicable to that claim.

Adverse Possession

“Title by adverse possession can be acquired only by proof of non-permissive use which is actual, open, notorious, exclusive and adverse for twenty years.” Ryan, 348 Mass. at 262. Such use must be continuous or uninterrupted during the statutory period. See Mendonca, 354 Mass. at 326. “All these elements are essential to be proved, and the failure to establish any one of them is fatal to the validity of the claim. In weighing and applying the evidence in support of such a title, 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 of an actual occupancy, clear, definite, positive and notorious.” Cook v. Babcock, 65 Mass. 206 , 209-210 (1853). “If any of these elements is left in doubt, the claimant cannot prevail.” Mendonca, 354 Mass. at 326 (internal citations omitted).

HJK has not itself used the area claimed, and certainly not continuously for twenty years or more. Rather, it relies on the use of that area by the tenants of Unit B, both during the period of HJK’s ownership and the time the Unit was owned by its predecessors in title, under the doctrine of “tacking.” But the fact that the area was used by such tenants is not enough. For “tacking” to apply, those tenants must have used it, or claimed the right to use it, not for themselves individually, but for, or under the authority of, the owner of Unit B. See Holmes v. Johnson, 324 Mass. 450 , 454 (1949); Holmes v. Turner’s Falls Co., 150 Mass. 535 , 547 (1890). In short, the “claim” must have been made by the Unit owner. The relevant factual inquiry thus focuses on who used the parking space area, [Note 8] when they used it, and whether their use can “fairly be said” to have been for the owner of Unit B, not for themselves or on their own behalf.

Moreover, a use amounting to a “claim” must be so open and obvious that the record owner can clearly see it as a claim of right by, or on behalf of, the person now making the claim. See Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993); Sea Pines Condo. III Assn. v. Steffens, 61 Mass. App. Ct. 838 , 848 (2004); Proprietors of the Kennebeck Purchase v. Springer, 4 Mass. 415 , 418 (1808). This has particular significance in this case because, as discussed below, prior to the August 1, 1999 to May 31, 2005 time period, neither HJK nor its predecessor owners of Unit B made any physical changes to the parking space area (it remained an undefined dirt area until that time, without any sign or marking) or charged the tenants of Unit B for parking there, and the cars that parked there were not continuously the same (they changed every time the tenants changed), without any indication that they were related to HJK, Kinross, or the tenants of Unit B.

The Parties and Their Properties

Plaintiff HJK is one of a number of entities owned and operated by the Dorfman family, which owns, leases, and manages residential and commercial properties in the Allston/Brighton area. It is the current record owner of Unit B in the 8 Kinross Road Condominium, a large residential condominium development on Kinross Road in Allston. The Dorfmans first purchased the Unit on July 11, 1995, titling it in the name of the Kinross Holding Trust, David Dorfman Trustee, and then transferred title to HJK on January 11, 2008. The Kinross Holding Trust bought the Unit from the Starpoly Trust, Vasiliki Polyhronopolous, Trustee, which had owned it since 1987. The deed from the Starpoly Trust included “the exclusive right and easement to use parking space nos. 18, 19 and 22” as shown on the Condominium plan (Ex. 1), but made no reference of any kind to the area at issue in this lawsuit — either the part on the Condominium common area, or the part on the now-Lanark property next door. When the Kinross Holding Trust conveyed Unit B to HJK, that deed likewise made no reference to the disputed area or of any claim to a right to park there, either on the Condominium’s land or Lanark’s. [Note 9] The Condominium plan (Ex. 1) shows all of the designated parking spaces on the Condominium property. No such space is shown in the area in dispute. That area, at the time the Dorfmans purchased Unit B and for many years thereafter, was dirt and grass on both sides of the property line.

Plaintiffs Michael Kreiger, Judy Wong, and Jeffrey Carruthers are the trustees of the 8 Kinross Road Condominium Trust, which administers and manages the Condominium’s affairs.

Defendant Lanark, also a large residential landlord, is the owner of the three- family residence at 127 Lanark Road, which fronts on Lanark Road and, on its rear, abuts the back side of the Condominium complex. As previously noted, Lanark purchased that property on November 17, 2011.

The parties agree, and I so find, that the record boundary between the 8 Kinross Road Condominium and the Lanark property is as shown on the survey attached as Ex. 2.

The Exit Stairway

The back side of the 8 Kinross Road Condominium building (which fronts on Kinross Road) and the back side of the Lanark building (which fronts on Lanark Road), are separated by an un-tended strip of land where debris has collected. See Ex. 2 (area between the buildings labelled “grass”). When Lanark acquired the Lanark property, it lacked a required egress from an exterior door on the second floor to ground level. Lanark had a survey done and, based on the boundary line as found by that survey, built an exterior porch and staircase extending from the door to the ground (the exit stairway) in July 2012. That survey was later found to be erroneous, and the exit stairway is a foot over the actual boundary line — a total encroachment of ten square feet (the stairway structure is ten feet long from front to back). See Ex. 2.

The Parking Space

The boundary between the Condominium and Lanark properties runs through the center of the parking area claimed by HJK, with the Condominium on the west (left) of that line and the Lanark property on the east (right). Broadly speaking, the area is in front of the tree that Lanark later cut down, to the right of a concrete walkway that runs alongside the Condominium building in which Unit B is located [Note 10] and to the left of another concrete walkway, entirely on the Lanark property, that leads to the side of the Lanark building. [Note 11] See Ex. 2. The Lanark building’s tenants parked to the right of the walkway on the Lanark land. The Condominium’s assigned parking spaces are numbered and are on the opposite sides of the Condominium building. See Ex. 1.

This action was filed on October 16, 2013. As previously noted, the filing of the lawsuit stopped the period of accrual. See Pugatch v Stoloff, 41 Mass. App. Ct. 536 , 542 n. 8 (1996) (“In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land.”); McMullen v Porch, 286 Mass. 383 , 388-389 (1934); Snow v El Dauphinais, 13 Mass. App. Ct. 330 , 336 (1982). Thus, to have at least twenty years of adverse occupancy, HJK must show that it can “tack” onto the uses of the parking space at least as far back as October 16, 1993.

Use Prior to July 11, 1995

HJK’s owners, the Dorfman family, had no connection with the parking space until July 11, 1995 at the earliest. That was the date when another entity they controlled, the Kinross Holding Trust, acquired Unit B. At that time, the Unit was owned by the Starpoly Trust, Vasiliki Polyhronopolous trustee, and was occupied by Sharon and Humberto Reyes, who had been there since February 1993.

The Reyes were parking in the parking space in July 1995, but were parking there entirely as a result of their own actions, and entirely on their own behalf. The space was not part of their lease from Unit B’s pre-July 1995 owner (the Starpoly Trust), and they never paid the Starpoly Trust or anyone else for parking there. Instead, their use came about as follows. The space is immediately adjacent to the outer wall of Unit B, and near an exterior door and stairwell that leads downstairs to the Unit. See Ex. 2. It was simply dirt, with no markings on it of any kind. I infer, and so find, that the prior (pre-February 1993) tenant of Unit B [Note 12] noticed that the area was un-tended and unoccupied by anyone else, began parking there (perhaps tentatively at first) and, after his vehicle went un- ticketed and undisturbed, simply continued parking. There was certainly no evidence that he parked there at the direction of his landlord (Mr. Polyhronopolous), nor based on anything the landlord said or did, nor that he made any payment for it. Tellingly, his landlord made no claim to the space or attempted to exercise control over it in any way. This is shown in at least three ways. First and most significantly, after the tenant moved out in February 1993, he left his vehicle there, and there it stayed for months, undisturbed, until the Reyes — not Mr. Polyhronopolous or anyone else from the Starpoly Trust — figured that the vehicle had been abandoned and had it towed, thereafter using the space for their own vehicles. [Note 13] This was done entirely at the Reyes’ own initiative, for themselves. Second, the Starpoly Trust never put a sign on the space, or gave any other indication that it was claiming the space for itself. It never asked the Reyes to pay for its use. [Note 14] And third, the Starpoly Trust’s deed of Unit B to the Kinross Holding Trust made no mention of the parking space at all, nor did Kinross pay anything extra for it. [Note 15]

Use Between July 1995 and October 1995

The Reyes continued to occupy Unit B for another three months (until October 1995), now as tenants of the Kinross Holding Trust. Kinross did not charge them for the use of the parking space, or assert a right to charge for the space. The Reyes simply kept using it as they had before. When the Reyes moved out, they took their cars with them and, since they no longer had need of the parking space (the house they purchased and moved to was in Dedham), they left the space vacant.

Note

Because HJK must have at least twenty years of occupancy, either its own or that of someone to whom it can “tack”, to acquire title by adverse possession; because that twenty years must have started at least as early as October 16, 1993 (twenty years before the filing of this action); and because, as discussed in the analysis section below, I find that HJK cannot “tack” onto any use by the Reyes, I need not find any post-October 1993 facts related to the adverse possession claim. I do so, however, for the sake of completeness.

Use in October 1995

Unit B was vacant for the month of October 1995, which Kinross used to have the Unit renovated. The contractors working on the Unit parked there while they were at the property. The area was still bare dirt.

Even though the contractors had been hired by Kinross (a Dorfman entity, which owned Unit B at the time), I find, as a matter of credibility, that they did not park in the parking space under any direction or claim by Kinross. The Dorfmans — sophisticated real estate investors and managers — are too knowledgeable and, because of that, too cautious, to have made so bold a claim. At least part of the space was on Condominium common area, which they knew had not been granted to them, either in fee or by easement. Even if they didn’t know the precise location of the boundary line between the Condominium and the 127 Lanark Road property, they certainly knew it was nearby. I can believe they may have told the contractors, “here is where the former tenants parked”, and I can certainly believe that contractors will take advantage of any parking area they can get away with, but I do not believe that the Dorfmans ever said, “park here; it’s ok; this is ours.” I thus find that the use of the space, at that time, was the contractors’, for themselves, and not on behalf of the Dorfmans or any of their entities. Therefore, HJK cannot “tack” onto the contractors’ use.

Use Between November 1, 1995 and July 31, 1999

The first Kinross-originated tenants in Unit B were Edwin and Delores Greenwald. Their tenancy began on November 1, 1995, and, after a series of lease extensions, terminated on July 31, 1999. [Note 16] Nothing in that lease mentioned any right to park, anywhere. The Greenwalds had a separate, verbal agreement with Granite Management Co. (another Dorfman entity) for the rental of a parking space in a different location than this one, on a month-to-month basis, and the Greenwalds paid for that space. [Note 17] The Dorfmans claim that they told the Greenwalds they could park in this space (and the Greenwalds did so), [Note 18] but again, as a matter of credibility, I do not believe that this was done under a “claim” by the Dorfmans (e.g., “park here; it’s ok; this is ours”). Rather, it was more in the nature of “here is where the former tenants parked.” I say this for at least four reasons. The Dorfmans made no improvement to the space. It remained bare dirt, without a defined parking area. They put no sign on it, making any claim. They did not reference this space in the Greenwalds’ written lease. And they did not charge the Greenwalds for its use, [Note 19] insulating themselves from any claim the Greenwalds might make if their car was towed. I thus find that the Greenwalds used the space on their own behalf, not Kinross’, and therefore HJK cannot “tack” onto the Greenwalds’ use.

Use Between August 1, 1999 and the Present

On August 1, 1999, the Dorfmans were finally willing to take the risk and make a claim of their own to the parking space, although for which of their many entities is unclear. [Note 20] The Greenwalds no longer occupied Unit B, and now, for the first time, the lease agreement with the tenants of that Unit (Jennifer Chillas and Kevin Bobetich) purported to give those tenants a right to a parking space as part of that lease, without any additional charge. The lessor in their original lease for Unit B was Kinross Holding Trust c/o Granite Management. Three extensions named Kinross Holding Trust as the lessor. And their final lease named HJK c/o Granite Management as the lessor, even though HJK had no ownership interest in Unit B at that time. The parking space was not specified in the lease, but I infer that the area at issue in this lawsuit was verbally indicated as the place to park. Also, for the first time, a change from bare dirt was made. Gravel was placed on at least a portion of the space. No other improvements were made during the time of the Chillas/Bobetich use (August 1, 1999 — May 31, 2005), and no signage of any type was put there.

The next tenant of Unit B was Daniel Glasser, who occupied it from June 1, 2005 to July 31, 2006. Despite having no interest in Unit B (ownership was not transferred from Kinross to HJK until January 11, 2008), HJK was named as the lessor on the Unit B lease, which stated that no parking was allowed unless the lessor gave consent in writing. Now, for the first time, there was a specific charge to the Unit B tenant for the use of the parking space at issue. However, the $145.00 per month charge for the space was done under an agreement separate from the lease of Unit B itself. [Note 21] Since no written lease agreement for the parking space was produced (and the tenant could not recall one), it is unclear what entity was the actual lessor. During his tenancy, Mr. Glasser parked in the space at night and on weekends, and occasionally during the day on weekdays. Mr. Glasser generally did not encounter others parking in the space, but, on at least one occasion, a third party parked within that area, directly behind his vehicle.

The next tenant of Unit B did not rent or use the parking space. Instead, from August 1, 2006 to July 31, 2008, Granite Management (not HJK) rented the space to John Roche, who at that time was a tenant of a different apartment within the same residential complex. Mr. Roach paid $145.00 each month for the use of the space. His parking agreement does not refer to HJK, and identifies the area as “Space # B at 8 Kinross Road.” He parked there overnight, on a daily basis.

Unit B was next rented to Michele Demko, whose tenancy went from August 1, 2008 to mid-July, 2010. Ms. Demko’s two consecutive leases each provided that the cost of one parking space was included in the monthly rent, but were not specific as to which parking space that was. Ms. Demko regularly parked in the space at issue in this lawsuit both during the day and at night. On at least one occasion, she complained to Jeremy Dorfman that another car was parked in the space. Mr. Dorfman placed a note on that car warning that unauthorized parking in the space was not permitted, and that the car would be towed if it was parked there again.

After Ms. Demko moved out, Unit B was vacant for approximately one week before Dr. Curtis Barry and Zareen Lakhani moved in. According to their lease, their rental term started on August 1, 2010 and ended July 31, 2011, but they moved in in mid- July 2010 and moved out in June 2011. They also had a separate agreement with Granite Management for the rental of “Space # B at 8 Kinross Road.” That agreement does not refer to HJK; however, they paid rent to HJK. Dr. Barry generally parked there on weekends, and also overnight on weekdays when he was not at work. On one occasion, he left his car there, continuously, for an entire month.

HJK next rented Unit B to Elizabeth Townsend and Matthew Mone from July 1, 2011 to nearly the end of November 2012. Ms. Townsend and Mr. Mone had a separate agreement with Granite Management for the rental of one parking space described as “Space # B at 8 Kinross Road” at a rate of $150.00 per month. That agreement does not refer to HJK; however, they paid rent to HJK for the parking space. During their tenancy, they parked their vehicle in the parking space at night and on weekends, and occasionally during days that they did not drive to work or school. On several occasions, third parties parked in the space without their permission to do so, sometimes for consecutive days. Construction workers hired by Lanark also used the space to store building materials and equipment during construction of the exit stairway on the Lanark property.

From December 1, 2012 through October 7, 2013, Lauren Spicer rented the parking space, which was not rented by the Unit B tenant at that time. Ms. Spicer’s rental agreement describes Granite Management as the lessor and does not refer to HJK, but Ms. Spicer paid $150.00 in rent each month to HJK. That agreement describes the parking area as “Space # B at 8 Kinross Road,” and Mr. Dorfman instructed Ms. Spicer to park in this space. She parked there at night and sometimes during the day, but did not do so during the ten or so hours she was at work each weekday.

During Ms. Spicer’s tenancy, the Lanark property underwent a series of improvements. Laborers working on the Lanark property often used the parking space to store their construction materials during the day. In the fall of 2013, Lanark’s row of parking spaces along Kinross Road to the right (east) of this parking space was paved. See Ex. 2. Shortly thereafter, Ms. Spicer encountered Lanark’s construction workers paving the parking space when she arrived home one day. On September 25, 2013, Lanark contacted Mr. Dorfman and informed him that Ms. Spicer needed to remove her vehicle from the space, informing him that its survey had shown the encroachment and that it intended to use that space itself.

On October 4, 2013, Lanark had a portion of the parking space paved, leaving the western concrete walkway (the walkway on the Condominium land) and a strip of gravel several feet wide next to that walkway unpaved. Caution tape was placed around the area of the encroachment, but Mr. Dorfman removed it the next day and informed Ms. Spicer that she could park there. On October 7, 2013, Granite Management installed a “No Parking” sign at the foot of the parking space area, which Lanark removed the following day. Lanark then put its own sign there, which warned that cars parked there without Lanark’s authorization would be towed. Faced with the threat of having her vehicle towed for parking there despite paying rent to do so, Ms. Spicer terminated her parking lease with HJK (Granite Management) and rented a different parking space from Lanark.

The Fence

On October 10, 2013, based on its initial, erroneous survey, Lanark’s property manager, Samia, had an “L-shaped” white picket fence installed within the parking space area. As initially installed, the fence began near Kinross Road, extended almost the entire length of the area in dispute, and then turned perpendicularly to the east towards the Lanark property for a few feet.

After the dispute regarding the parking space arose, Lanark had a new survey done, which the parties agree correctly locates the true record boundary line. See Ex. 2. That survey showed that the Lanark’s newly-installed picket fence encroached upon the Condominium common area by approximately one foot. Subsequently, on November 5, 2014, Lanark removed that fence and relocated it entirely onto the Lanark property. Lanark removed its asphalt from the Condominium property as well.

The Tree

On August 21, 2013, Lanark had a large, double-trunk red oak tree, [Note 22] located at the top of the parking space, cut down to address what it believed were infestation problems the tree was causing. Both trunks were approximately twenty inches wide and were situated, for the most part, on the Condominium common area, close to its boundary with the Lanark property (the branches straddled both sides of the boundary line). See Ex. 2. At the time Lanark had the tree cut down, it relied on its initial survey’s inaccurate depiction of the common boundary and, as a result, believed that the tree was located entirely on the Lanark property. No notice was given to the Condominium before the tree was removed. The loss of the tree has taken away the privacy, shade, and aesthetic pleasure it provided to the Condominium unit owners. Any “infestation” problems it was causing could have been addressed without the need to cut the tree down.

Further facts are set forth in the Analysis section below.

Analysis

HJK’s Adverse Possession Claim to the Parking Space

As noted above, to establish title by adverse possession, the claimant has the burden to prove “actual, open, exclusive, and nonpermissive use for a continuous period of twenty years.” Totman v. Malloy, 431 Mass. 143 , 145 (2000). See Lawrence v. Town Of Concord, 439 Mass. 416 , 421 (2003); G.L. c. 260 § 21. “If any of these elements is left in doubt, the claimant cannot prevail.” Holmes v. Johnson, 324 Mass. at 453.

HJK has also asserted an alternative claim for a prescriptive easement to the parking space, but such an easement — posited on, and granting nothing more than, non- exclusive use (see Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 n.9 (2007)) — is inapplicable to the type of parking at issue in this lawsuit. Only one vehicle at a time (or, at most, two parked nose to bumper) can park in this space, and HJK’s entire case is premised on its right to rent the space to its tenants for them to use whenever they choose. In any event, the elements of prescriptive easement are the same as those required to establish adverse possession except that the claimant’s use need not be exclusive, [Note 23] and, as discussed below, HJK has failed to prove twenty years of adverse use to which it can lay claim — an element of both. [Note 24]

“The nature and the extent of occupancy required to establish a right by adverse possession vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.” La Chance v. Rubashe, 301 Mass. 488 , 490 (1938). A successful claimant must establish that it exercised “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.” Id. at 491. One claiming title through adverse possession “need not personally occupy the land for twenty years.” Lawrence, 439 Mass. at 426 (emphasis added). See G.L. c. 260, § 22. Landowners may tack onto their own possession of the property that of their predecessors-in-title. See Luce v. Parsons, 192 Mass. 8 , 12 (1906). A landowner may also “rely on the possession of his tenants, whose possession is his own.” Lawrence, 439 Mass. at 426 (citing Shoer v. Daffe, 337 Mass. 420 , 423–424 (1958)). See Ryan, 348 Mass. at 264–265. However, a tenant’s possession of property that the landlord does not possess or claim to own may not be tacked to that of the landlord. See Holmes v. Johnson, 324 Mass. at 454-455 (citing Elwell v. Barbirck, 279 Mass. 272 , 277 (1932)); Holmes v. Turner’s Falls Co., 150 Mass. at 547).

As set forth in the factual findings above, even giving HJK the benefit of every prior use by any Dorfman entity, the earliest time to which HJK can “tack” is August 1, 1999. The prior use of that space by the Reyes, by the Unit B tenant prior to the Reyes, by the contractors renovating the Unit in October 1995, and by the Dorfmans’ own tenants prior to August 1, 1999, was a use by them individually, for themselves, and not on behalf, or otherwise “for”, the owner of Unit B or “fairly attributable” to that owner. “Tacking” certainly does not date before September 30, 1995 when the Reyes left. Because, as a matter of law, any adverse use that occurred ceased accruing on the date the lawsuit was filed (October 16, 2013), [Note 25] because twenty years of continuous adverse use is required for adverse possession, and because that twenty years must have begun no later than October 16, 1993, HJK has failed to prove its claim. [Note 26]

HJK’s Liability for Its Wrongful Use of Lanark’s Property

Without an ownership or easement interest in the parking space area on Lanark’s land, HJK is liable for its unauthorized use of that area. [Note 27] “‘A trespass is an invasion of the interest in the exclusive possession of land, as by entry upon it.’” Amaral v. Cuppels, 64 Mass. App. Ct. 85 , 91 (2005) (quoting Restatement (Second) of Torts § 821D comment d (1979)). One who intentionally causes a third person to enter another’s land may be liable to the landowner for trespass. Cf. Dilbert v. Hanover Ins. Co., 63 Mass. App. Ct. 327 , 333 (2005) (citing Restatement (Second) of Torts § 158, which provides that “[o]ne is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally [a] enters land in the possession of the other, or causes a thing or a third person to do so, or [b] remains on the land, or [c] fails to remove from the land a thing which he is under a duty to remove”).

“[T]he regular and frequent nonpermissive propulsion of physical objects onto an adjacent property constitutes a continuing trespass.” Amaral, 64 Mass. App. Ct. at 91. Generally, an injunction prohibiting the offending activity is the appropriate remedy for a continuing trespass. See id. Damages measured as the “loss in rental value of the property while injury continues” may also be warranted. Fenton v. Quaboag Country Club, Inc., 353 Mass. 534 , 539 (1968).

Lanark’s land was an essential part (over half) of the parking space. For years, HJK rented the parking space to third parties and directed them to park there, without license from Lanark or Lanark’s predecessors to do so, and paid nothing for that use. HJK’s conduct in doing so constitutes a continuing trespass to Lanark’s property.

Lanark seeks damages for that trespass. When Lanark purchased its property on November 17, 2011, HJK was renting out the parking space at the rate of $150.00 each month. HJK continued to do so at that rate up until October 7, 2013 when Ms. Spicer terminated her parking lease. I thus find that the appropriate measure of damages for the use of Lanark’s land is the full amount of the rents HJK received during that 691 day period — $3,406.63. [Note 28]

Removal of the Tree

Having considered all the evidence, I find it more likely than not that at least a portion of the tree trunks straddled the boundary between the properties, rather than being entirely on the Condominium common area. [Note 29] When a tree trunk stands across a boundary line, “both parties own the whole tree as tenants in common.” Levine v. Black, 312 Mass. 242 , 243 (1942). While each has the right “to cut off limbs and roots which invade his premises”, id., each also has the right “to prevent the other party from dealing with part of the tree so as to injure or destroy the whole tree.” Lasell College v. Fox, 53 Mass. App. Ct. 1103 (2001), 2001 WL 1352539 at *3 (Mem. & Order Pursuant to Rule 1:28) (citing Levine, 312 Mass. at 243-244).

G.L. c. 242, § 7 provides:

A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.

Under § 7, “liability is not based on fault.” Evans v. Mayer Tree Serv., Inc., 89 Mass. App. Ct. 137 , 147, review denied sub nom. Evans v. Mayer Tree Servs., Inc., 474 Mass. 1105 (2016). “So long as the act of cutting was intentional and the act was without license, liability exists.” Id.

Section 7 does not specify how the court is to measure damages. See Larabee v. Potvin Lumber Co., 390 Mass. 636 , 643 (1983). Most commonly, the measure of damages is either “(1) the value of timber wrongfully cut, or (2) the diminution in value of the property as a result of the cutting.” Glavin v. Eckman, 71 Mass. App. Ct. 313 , 317- 318 (2008). Those measures, however, may be inadequate to compensate an aggrieved plaintiff, such as “where the value of the timber cut is negligible, or the diminution in value of the property owing to the cutting is minimal or nonexistent.” Id. at 318. In such cases, courts have measured damages based on the cost of replacement or restoration. See Ritter, 72 Mass.App.Ct. at 305-307; Glavin, 71 Mass. App. Ct. at 317-322. While measuring such damages, “a test of reasonableness is imposed.” See Glavin, 71 Mass. App. Ct. at 320. The replacement cost must be reasonable, and “the replacement or reconstruction itself must be reasonably necessary in light of the damage inflicted by a particular defendant.” Trinity Church in City of Boston v. John Hancock Mut. Life Ins. Co., 399 Mass. 43 , 50 (1987). The cost of restoration may be an inappropriate measure of damages if “to make such a restoration would be an uneconomical and improper way of using the property and might involve a very large and disproportionate expense to relieve from the consequences of a slight injury.” Id. (internal quotations and citations omitted).

Here, Lanark intentionally cut down the tree based on an erroneous survey that showed the tree was located entirely on its property. It was not. As noted above, the tree straddled the boundary line and Lanark had no right to remove it. Because Lanark never sought nor obtained permission from the Condominium to cut the tree down, it is liable to the Condominium for damages under § 7. That Lanark relied upon an inaccurate survey when it had the tree cut down does not change this result — Lanark’s liability exists even in the absence of fault. See G.L. c. 242, § 7; Evans, 89 Mass. App. Ct. at 147. However, Lanark reasonably relied on that survey and thus “had good reason to believe that the land on which the trespass was committed was his.” G.L. c. 242, § 7. Single damages — not treble damages — are therefore appropriate in this case. See id.

The Condominium seeks damages based on the cost to restore the tree. At the trial, certified arborist Stevan Gold testified regarding two alternative methods for appraising the tree: (1) the trunk formula valuation method, and (2) the replacement cost value method. [Note 30] In Mr. Gold’s opinion, the replacement cost value method is useful for valuing trees for which replacements are readily available for excavation and replanting, while the trunk formula valuation method is useful to value trees that cannot be replanted.

According to Mr. Gold, the trunk formula valuation method is the more suitable method to appraise the red oak, which is not easily replaceable due to its large size.

Under the trunk formula valuation method, a tree’s appraised value is the product of (1) its species rating, (2) its condition rating, and (3) its location percentage, and (4) its basic tree cost. Given the high desirability of red oaks in the area and the high quality of the tree that was removed, Mr. Gold rated its species and condition as seventy percent. He also rated its location as seventy percent, which is his default percentage in the absence of any major deficit, such as decay and dead areas in the tree’s canopy.

The basic tree cost is the product of the cost per-square-inch of a replacement tree and the area of the removed tree. The largest red oak available as a replacement that Mr. Gold located was four inches in diameter and 12.56 inches in area. According to Mr. Gold, the cost of a tree that size would be $600.00, and the cost to install such a tree would be $1,200.00. To calculate the cost per-square-inch of the replacement tree, Mr. Gold divided the sum of the replacement and installation costs of the replacement tree by its area, and arrived at a figure of $143.13. [Note 31] Mr. Gold also determined that the area of the trunk of the removed tree was 314 square inches based on its twenty-inch diameter. He then multiplied the cost per-square-inch of the replacement tree by the area of the removed tree, and concluded that the basic tree cost would be $44,942.82. After adjusting the basic tree cost to account for the seventy percent species, condition, and location percentages, and rounding that result, Mr. Gold testified that the value of each trunk of the removed tree is $15,500.00. [Note 32]

I find Mr. Gold’s testimony credible, but conclude that, under the facts of this case, it would not be reasonable to award damages in the amount he advocates. See Glavin, 71 Mass. App. Ct. at 320. There is no question that the Condominium is entitled to damages for the tree cutting; however, the appropriate measure of damages is within the court’s discretion. See G.L. c. 242, § 7; Glavin, 71 Mass. App. Ct. at 318 (“The judge, as gatekeeper, has broad discretion to determine whether evidence other than fair market value is relevant to the question of damages.”); Ritter, 72 Mass.App.Ct. at 305-307. The Condominium has shown minimal harm as a result of the cutting. There is no evidence in the record as to the value of the timber cut, or that the value of the Condominium property or any of its Units has diminished a result of the cutting. Under the circumstances, it would be unreasonable to award the Condominium over $30,000.00 in restoration damages, since such an expense to Lanark would be greatly disproportionate to the harm actually suffered. See Trinity Church in City of Boston, 399 Mass. at 50; Glavin, 71 Mass. App. Ct. at 320. Instead, I find that the appropriate measure of damages is $1,800.00, which includes $600.00 for the cost of a replacement red oak tree, and $1,200.00 for its installation.

The Fence and Exit Stairway Encroachments

Finally, the Condominium seeks injunctive relief compelling Lanark to remove the exit stairway encroaching upon its property, as well as monetary damages due to that encroachment. It also seeks damages for the fence that encroached upon its property until Lanark had it removed. Lanark concedes that its fence encroached upon the Condominium property, and that its exist stairway presently does so, both approximately a foot.

Absent special circumstances, landowners are entitled to mandatory equitable relief requiring the removal of significant encroachments upon their land. See Peters v. Archambault, 361 Mass. 91 , 92 (1972). In “exceptional” cases, however, damages, rather than injunctive relief, may be the appropriate relief “where the unlawful encroachment has been made innocently, and the cost of removal by the defendant would be greatly disproportionate to the injury to the plaintiff from its continuation,” or in cases “where the substantial rights of the owner may be protected without recourse to an injunction, or where in injunction would be oppressive and inequitable.” See id. at 93. “What is just and equitable in cases of this sort depends very much upon the particular facts and circumstances disclosed.” See id. To determine whether it is appropriate to award damages and decline equitable relief, “it is proper . . . for the court to engage in a balancing of equities after due consideration of all pertinent facts.” Capodilupo v. Vozzella, 46 Mass. App. Ct. 224 , 227 (1999). It is well-established that where an encroachment is de minimis in nature, injunctive relief is often not warranted. See id. at 226. Where damages are the appropriate remedy, and where the property damage is not permanent, “the reasonable expense of repairing the injury plus the intervening loss of rental value for the period reasonably needed to repair the injury” is the appropriate measure of recovery. Guar.-First Trust Co. v. Textron, Inc., 416 Mass. 332 , 337 (1993). In the absence of evidence of rental value, nominal damages may be awarded. See Curtis v. Dalrymple, 81 Mass. App. Ct. 1135 (2012), 2012 WL 1647954 at *4 (Mem. & Order pursuant to Rule 1:28) (upholding nominal damage award of one dollar for trespass and concluding “judge properly declined to award damages because there was no evidence in the record as to the rental value of the home”).

The encroachment of the exit stairway on the Condominium property is not significant. Such an exit from the doorway on the upper floor is necessary to comply with the building code. The stairway extends only one foot over the boundary line, and is situated in what is effectively an alleyway between the two properties that is rarely, if ever, used by anybody. If the exit stairway was to remain in place, any injury to the Condominium, if any, would be slight. Lanark’s construction of the encroachment was innocent. It relied upon an inaccurate survey of its property and, as a result, believed that the structure was situated entirely on its own property. Under these circumstances, the equities weigh against injunctive relief.

Neither side offered evidence on the appropriate measure of damages, and there is none on which I can base such a measure. This would ordinarily result in nominal damages only. But such a result would be unfair and unjust to the Condominium, because the encroachment will continue to exist and greatly benefits Lanark. Instead, I leave it to the Condominium to bring a new, independent action against Lanark to recover such damages, in a court of appropriate jurisdiction, should it wish to pursue such a course.

Lanark’s construction of the fence encroachment was also innocent. Almost immediately after discovering that the fence encroached upon the Condominium property, Lanark removed the fence, relocated it onto its own property, and restored the area to its previous condition. Injunctive relief with respect to the fence is clearly not warranted, for the encroachment no longer exists.

There was no evidence that the fence encroachment caused any damage to the Condominium. It did not block any access or egress route, nor occupy any space used by the Condominium itself, and the area has now been completely restored to its former state, at Lanark’s expense. Thus, no damages are awarded to the Condominium on this claim. The only one using that area was HJK, which had no ownership or other right to use it. Moreover, as discussed above, HJK’s use was limited to using it as part of the parking space it was renting out — a use that depended upon its simultaneous use of Lanark’s land, which it had no right to do. HJK is thus not entitled to damages of any kind.

Conclusion

For the foregoing reasons, I find and rule that the common boundary between the Condominium and Lanark properties is as depicted on Exhibit 2. HJK has not acquired title by adverse possession to any of Lanark’s land, nor a prescriptive easement to use part of it. Instead, HJK is liable to Lanark for damages in the amount of $3,406.63 for trespassing upon Lanark’s property.

I further find that Lanark has no liability to the Condominium or Lanark due to the fence encroachment. Lanark need not remove the exit stairway structure encroachment, and its monetary liability to the Condominium for the value of that encroachment shall be determined in a new, separately-brought action, in a court of appropriate jurisdiction, should the Condominium wish to bring such an action. Lanark is liable to the Condominium in the amount of $1,800.00 for wrongfully cutting the tree. Lanark’s conversion counterclaim is dismissed, with prejudice.

Judgment shall enter accordingly.

SO ORDERED.

exhibit 1

exhibit 2