Home FAYE M. PASSANISI, Trustee of the Pasfam Realty Trust v. KEITH E. NATTI and JESSICA L. NATTI.

MISC 14-482839

April 3, 2018

Essex, ss.




Plaintiff Faye M. Passanisi, Trustee of the Pasfam Realty Trust, filed a three-count Verified Complaint against her neighbors, Defendants Keith and Jessica Natti, on April 9, 2014. Plaintiff asserts in Count I that she and her husband have acquired, by adverse possession, a portion of the Defendants' land which adjoins the eastern boundary of Plaintiff's house lot in Gloucester, Massachusetts. In Count II, Plaintiff also asserts a trespass claim against Defendants for cutting down trees in the disputed area. [Note 1] In Count III, Plaintiff seeks a restraining order against Defendants to prevent them from erecting a fence along their record boundary line. [Note 2] Defendants filed their Answer on May 9, 2014.

A two-day trial was conducted on September 26 and 27, 2016. Plaintiff testified on her own behalf, and called four additional witnesses: Emidio Silva (a neighbor), Peter Foster (a prior owner of Defendants' property), Defendant Keith Natti, and Anthony Passanisi (Plaintiff's husband). Two witnesses testified for Defendants: Diana Foster (a prior owner of Defendants' property) and Defendant Jessica Natti. Forty-eight (48) numbered Exhibits were admitted into evidence, and one Chalk was used at trial. [Note 3] The court took a view on November 2, 2016. Following receipt of the trial transcripts and the parties' respective post-trial filings, the court took the matter under advisement on December 15, 2016. [Note 4]

For the reasons discussed below, Plaintiff has established title by adverse possession to only a portion of the disputed area where part of their driveway and side lawn are located. Plaintiff, however, failed to prove adverse possession of any other part of Defendants' land.


Based on the pleadings, the admitted trial exhibits (including the parties' statement of agreed facts), the trial testimony, and the court's view, I find the following pertinent facts, reserving certain details for my discussion of specific legal issues.

The Passanisi Lot

Plaintiff owns the residential property at 9 Oxford Road, Gloucester, shown as Lot 56 on a 1901 subdivision plan entitled "Plan of Starknought Heights, Gloucester, MA" (the "Starknought Heights Plan"). [Note 5] Plaintiff's property will hereinafter be referred to as either "9 Oxford Road" or "Lot 56." Plaintiff and her husband originally acquired 9 Oxford Road as tenants by the entirety in January of 1985. [Note 6] In 2009, the Passanisis transferred ownership of 9 Oxford Road to Faye M. Passanisi, as Trustee of the Pasfam Realty Trust. [Note 7]

Lot 56 was bounded on the south by Oxford Road, and on the east by Lot 57 as shown on the Starknought Heights Plan. In 1985, when the Passanisis acquired 9 Oxford Road, the neighboring Lot 57 was owned by Jose R. Nunes and Regina M. Nunes. [Note 8] In August of 1987, Faye Passanisi, individually, acquired a 17,120± s.f. portion of Lot 57 from the Nuneses. [Note 9] The vacant parcel she acquired was shown as Parcel 35-2 on a plan entitled "Division Plan of Land in Gloucester, Mass., Oxford Rd.," prepared by Matt A. Hautala, dated June 20, 1987 (the "Hautala Plan"). [Note 10] The Hautala Plan shows the division of Lot 57 into two parcels: Parcel 35-2, and Parcel 35-1 (containing 12,866± s.f.). As shown on the Hautala Plan, Parcel 35-2 abuts the entire eastern boundary of the Passanisi Property, extending 175 feet northwesterly from Oxford Road. It has 66 feet of frontage on Oxford Road. Faye Passanisi owned Parcel 35-2 for only two and a half months before selling it in November of 1987, still vacant, to Charles C. Foster, Trustee of the SS Realty Trust ("Foster, Tr."). [Note 11]

The Disputed Area and its Use

When the Passanisis acquired 9 Oxford Road in 1985, a dirt driveway existed on the southeasterly side of the house, providing access from Oxford Road. Sometime after they purchased 9 Oxford Road, the Passanisis had the driveway paved. The paved driveway which exists today, although deteriorated, is in the same location and is of the same dimensions as it was in 1987 when Faye Passanisi sold Parcel 35-2. The length of the driveway measures approximately 60 feet between the front lot line at Oxford Road and the lawn area at its northern end, next to the Passanisi house. The driveway width varies from approximately 24 feet to approximately 26 feet. Approximately 19 feet of the driveway width is located within the boundaries of Lot 56. Between 5 and 7 feet of the driveway width, and a strip of lawn at its end of unascertained width, has encroached upon the abutting land (first, part of Parcel 35-2, and now part of Lot 105A) since at least November 2, 1987 when Faye Passanisi sold Parcel 35-2 to Foster, Tr.

The driveway is relatively flat, but the land at the eastern edge of the driveway drops about two feet in elevation before flattening out again at the bottom of the slope. At the bottom of the slope, the land is rocky and uneven, and is planted with some deciduous trees and pine trees, as well as some shrubs. The side of the slope appears to be eroding. To the north of the slope and its base (the "Slope Area"), the land has been mostly left in a natural state, densely covered with trees and an undergrowth of vines, weeds, and other low vegetation (the "Wooded Area"). Both the Slope Area and the Wooded Area are located on land which was once part of Parcel 35-2, including all of what is now Lot 105A and a part of what is now Lot 105B. Together, the Slope Area, the Wooded Area, and the portion of the Passanisi Driveway and adjacent lawn strip which extend into Lot 105A, constitute the "Disputed Area," comprising approximately 4,051 s.f. [Note 12]

After Ms. Passanisi sold Parcel 35-2 in 1987, that Parcel remained vacant until Peter Foster, Charles Foster's son, constructed a house on it between 1990 and 1991. Once completed in 1991, Peter and Diana Foster moved into the house on Parcel 35-2, which has a street address of 7 Oxford Road. Peter and Diana Foster did not own the 7 Oxford Road property, however, until Foster, Tr. conveyed it to them on March 16, 1994. [Note 13]

It was in the early 1990's, after the Fosters had moved into the house at 7 Oxford Road, that Peter Foster told Mr. Passanisi about his wish to "improve" the slope which, at that time, was filled with old cement pieces and rebar. Mr. Passanisi interpreted Peter Foster's comments as a request that the Passanisis landscape the Slope Area. So, soon afterward, the Passanisis asked their friend and neighbor, Emidio Silva, to plant some trees along the bottom of slope. Silva planted five small pine trees (of which four survived). Sometime earlier, the Passanisis had installed an approximately eight-foot length of split rail and chicken wire fence at the top of the slope next to the driveway, in order to prevent basketballs from rolling down from the driveway into the Fosters' front yard.

For more than a decade after Faye Passanisi sold off Parcel 35-2, the Passanisis were under the mistaken belief that the eastern boundary of Lot 56 extended into the Slope Area and the Wooded Area behind the slope. They continued to regularly maintain and use their driveway and lawn on the upper, flat portion of the Claimed Area. At various times, they put up a wooden swing set and a wooden trellis on the lawn near the end of the driveway. And at some point around 1986, they put up a makeshift treehouse for their son in the Wooded Area.

Overall, between the early 1990's and 1998, the Fosters and the Passanisis treated the Slope Area and the Wooded Area as a natural buffer between their two houses, and both families would occasionally rake the Slope Area, and remove brush and fallen branches from the Wooded Area. Permission was neither asked nor given either for the Passanisis to maintain their driveway and lawn on Parcel 35-2, or for them to occasionally maintain the Slope Area and Wooded Area on Parcel 35-2. During the time the Fosters owned Parcel 35-2, they also had a utility pole installed within the Slope Area without asking for permission from the Passanisis.

The neighborly relationship ended in 1998, when the Fosters acquired Parcel 35-1 (the lot which, together with Parcel 35-2, had once comprised Lot 57). After they acquired Parcel 35-1, the Fosters had a survey done of the two lots, during which it was discovered that the Passanisi driveway was encroaching on Parcel 35-2. The survey resulted in a plan, entitled "Plan of Land 7 Oxford Road in Gloucester, MA," prepared by Apple Associates, Inc., and dated August 17, 1998 (the "Apple Plan"). [Note 14] The Apple Plan shows a reconfiguration of Parcel 35-1 and Parcel 35-2 ( i.e., the land which formerly constituted Lot 57) by relocation of the boundary between the two Parcels, and by creation of a new, triangular-shaped parcel divided from the Parcel 35-2 land immediately adjacent to the 9 Oxford Road property. As shown on the Apple Plan, the reconfigured Parcel 35-1 (labeled "Parcel 35B") retains its original frontage but is reduced in area by 2,430 s.f. The reconfigured Parcel 35-2 (labeled "Lot 105B") retains its original frontage on Oxford Road but is increased in size to 18,186 s.f. The new triangular-shaped parcel of land divided from former Parcel 35-2 is labeled on the Apple Plan as "Lot 105A," containing an area 1,358 s.f. Lot 105A has no frontage, although its southernmost angle touches the sideline of Oxford Road.

As depicted on the Apple Plan, the Passanisi driveway encroachment extends across the entire width of Lot 105A and also across a narrow, triangular strip of land at the southwestern corner of Lot 105B, for a length of approximately 60 feet. The entire area of the driveway encroachment shown on the Apple Plan scales to approximately 660± s.f. in area.

Armed with the Apple Plan, Peter Foster approached the Passanisis in late 1998 and offered to sell them the newly-created Lot 105A. The Passanisis summarily rejected Peter Foster's offer, and soon after, proceeded to install some new landscaping in the Slope Area, including a large forsythia bush. The Fosters did nothing to stop them. Also, despite the fact that the Passanisis did not buy Lot 105A, the Gloucester Assessor's property record cards for 9 Oxford Road were inexplicably changed in 1998 by adding 1,358 s.f. to its land area and increasing the 9 Oxford Road land valuation accordingly. The property record cards continued to reflect this increased land area and value until 2011, when the error was noted on the card and the land area was changed back to its original size of 18,920 s.f. [Note 15]

In February of 1999, the Fosters sold Lot 105B and the house thereon (7 Oxford Road) to Jerome and Nora Curreri. [Note 16] After moving away from 7 Oxford Road, the Fosters retained ownership of Lot 105A, although they never returned to tend to the land. The Curreris lived at 7 Oxford Road for approximately eight and a half years. During that time, the Curreris cut back some of the trees in the Wooded Area, but after the Passanisis objected, the Curreris did not do any further maintenance work in the Disputed Area.

In 2006, the Passanisis moved away from 9 Oxford Road to another property in Gloucester, and began renting 9 Oxford Road out to tenants. As landlords for the next three years, the Passanisis stopped by 9 Oxford Road up to once a week, to either maintain the above- ground pool or cut the grass.

The Passanisis also claim to have done some occasional raking and clean up in the Wooded Area and the Slope Area during the period they rented out their home to tenants. But, in September 2007, when Keith Natti and Jessica L. Roberts (now Jessica Natti) acquired Lot 105B (7 Oxford Road) from the Curreris and moved in, the Slope Area and the Wooded Area appeared rough, unkempt and overgrown. [Note 17], [Note 18] As soon as they moved in, the Nattis proceeded to clear a portion of the Wooded Area, pulling out "pricker" bushes, vines and poison ivy to create a space to store and access firewood. Thereafter, the Nattis continued to use the cleared area to store winter firewood and to make an occasional campfire. The Nattis also occasionally tended to the Wooded Area and the Slope Area by clearing branches and debris, raking, pruning, and mowing the grass at the bottom of the slope, apparently without knowledge as to the exact location of their own Lot 105B boundary. [Note 19] Nor were they aware of the existence of Lot 105A as a separate parcel, still owned by the Fosters.

Initially, the Nattis maintained a neighborly relationship with the Passanisis and their tenants. During the winter months, Keith Natti plowed the Passanisi driveway for the tenants and, in return would sometimes receive the tenants' permission to park in the driveway. But, in 2011, after the tenants moved out and the Passanisis began the teardown and reconstruction of the 9 Oxford Road house, the Nattis became increasingly concerned about disruption from the construction activities, and the proximity of the new construction to their own house. Prompted by these concerns, Keith Natti conducted some research which ultimately led him to learn of the existence of Lot 105A. The Nattis then reached out to the Fosters and acquired Lot 105A in November, 2011. [Note 20]

Following their purchase of Lot 105A, and while construction on Lot 56 was still in progress, the Nattis hired a surveyor and had stakes placed to mark the boundaries of Lot 105A. This led to a heated exchange between Keith Natti and Anthony Passanisi, during which Keith Natti threatened to erect a fence along the boundary. Within a day, however, the argument blew over and the Passanisis' resumed their construction activities without physical obstruction by the Nattis. [Note 21] Plaintiff, however, filed this lawsuit.


"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years." Lawrence v. Town of Concord, 439 Mass. 416 , 421 (2003) (internal quotation marks omitted). The burden of proof, carried by the claimant, extends to all elements. Id. If any one element is not proved, the claimant cannot prevail.

To prove actual use, the claimant "must establish changes upon the land that constitute 'such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.'" Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004) (quoting Peck v. Bigelow, 34 Mass. App. Ct. 551 , 556 (1993)). "'[A]cts of possession which are few, intermittent and equivocal [are insufficient to] constitute adverse possession.'" Id. (quoting Kendall v. Selvaggio, 413 Mass. 619 , 624 (1992)) (internal quotation marks omitted). "'The nature and the extent of occupancy required . . . vary with the character of the land, the purposes for which it is adapted, and the uses to which it has been put.'" Id. (quoting LaChance v. First Natl. Bank & Trust Co., 301 Mass. 488 , 490 (1938)).

"The purpose of the requirement of 'open and notorious' use is to place the true owner 'on notice of the hostile activity of the possession so that he, the owner, may have an opportunity to take steps to vindicate his rights by legal action.'" Lawrence, 439 Mass. at 421 (quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959)). "To be 'open,' the use must be without attempted concealment"; to be notorious, "it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 44 (2007).

To be exclusive, the claimant may not share control or be in concurrent possession of the property with the true owner. "[T]he use must encompass a 'disseisin' of the record owner." Peck, 34 Mass. App. Ct. at 557. "[A] use or possession which is not adverse to the owner, or which is concurrent with that of others, or which does not exclude a similar use or possession by others, will not confer a title in fee, however long continued." Eastern R. Co. v. Allen, 135 Mass. 13 , 16 (1883). In "[c]ases involving . . . wild or woodlands, the claimant generally must establish that the land has been enclosed or reduced to cultivation." Sea Pines Condo., 61 Mass. App. Ct. at 848; Labounty v. Vickers, 352 Mass. 337 , 349 (1967) ("Acts of enclosure or cultivation are evidence of exclusive possession.").

To establish adversity, the claimant must show a "lack of consent from the true owner." Totman v. Malloy, 431 Mass. 143 , 145 (2000). "Evidence of express or implied permission rebuts the presumption of adverse use." Rotman v. White, 74 Mass. App. Ct. 586 , 589 (2009). On the other hand, "[i]mplied acquiescence is not necessarily the same as permission . . . . On the contrary, adverse possession may exist where there is possession with the forbearance of the owner who knew of such possession and did not prohibit it but tacitly agreed thereto." Ivons-Nispel, Inc. v. Lowe, 347 Mass. 760 , 763 (1964) (internal citations omitted).

To prevail, the adverse claimant must also prove that each of these above elements continued uninterrupted for a period of twenty years. G.L. c. 260, §§ 21-22; see also Kendall, 413 Mass. at 621. The true landowner may interrupt the adverse possession by actual reentry in order to retake the property. However, the true landowner's retaking must satisfy similar requirements to that of the adverse possession, i.e., it must be sufficiently hostile, open, and notorious so as to put the adverse claimant on notice that the true owner is reasserting his or her ownership. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 541-42 (1996) ("Not every assertion of ownership by the record owner suffices to stop the running of the statute. 'It is well recognized that the running of the statute is interrupted by the owner's entry on the land, if, and only if, this is made openly and under claim of right, with a clearly indicated purpose of taking possession.'" (quoting 4 Tiffany, The Law of Real Property § 1161, at 853 (3d ed. 1975) (internal citation omitted)).

Here, I find that the trial evidence adequately supports Plaintiff's adverse possession claim with respect to the area of Lot 105A and Lot 105B on which a portion of their paved driveway and adjacent lawn are located. Plaintiff sufficiently demonstrated that she and her family (and their tenants) have used the portions of Lot 105A and Lot 105B on which the driveway and adjacent lawn are located – an area of approximately 1625± s.f. – adversely, openly, and exclusively since at least November 2, 1987 when Faye Passanisi conveyed out Parcel 35-2 with the existing driveway and lawn encroachment. For the reasons which will be discussed in more detail below, however, the evidence does not support Plaintiff's claim of adverse possession with respect to the remainder of the Claimed Area.

Plaintiff Has Proven Adverse Possession of the Claimed Portion of the Driveway and Adjacent Strip of Lawn.

I find that the driveway and lawn encroachment on Lot 105A and Lot 105B has been "nonpermissive . . . open, notorious, exclusive and adverse for twenty years." See Lawrence, 439 Mass. at 421. The construction and use of the driveway and the planting and use of the adjacent lawn area produced "changes upon the land that constitute 'such a control and dominion over the premises as to be readily considered acts similar to those which are usually and ordinarily associated with ownership.'" See Sea Pines Condo., 61 Mass. App. Ct. at 847. The driveway and lawn have existed in plain sight, and their regular and continuing use by the Passanisis was obvious to all. The Passanisis did not share control or possession of the driveway and adjacent lawn with the record owners of former Parcel 35-2 (or the record owners of the portion of Parcel 35-2 which is now Lot 105A) at any time after Faye Passanisi conveyed Parcel 35-2 to Foster, Tr.

The Passanisis' adverse use began on November 2, 1987, after Faye Passanisi conveyed Parcel 35-2 with the then-existing driveway and lawn encroachment. The trial evidence established that the driveway and the strip of lawn area at its northern end continued in uninterrupted existence and exclusive use by the Passanisis throughout the following twenty-years, including during the time that the Passanisis rented their home to tenants. See, e.g., Lawrence, 439 Mass. at 416 (and cases cited) ("A person claiming title by adverse possession need not personally occupy the land for twenty years. He may rely on the possession of his tenants, whose possession is his own.").

Contrary to Defendants' contention, none of the record owners ever effectively interrupted the Passanisis' exclusive possession and use of the driveway and lawn. Peter Foster's offer to sell Lot 105A to the Passanisis after showing them the Apple Plan in 1998 was ineffective to repossess this portion of the Disputed Area, because "notice to an adverse possessor of the result of a survey, without more, is insufficient to establish such an exercise of dominion over the disputed area as to interrupt adverse possession." Pugatch, 41 Mass. App. Ct. at 542; see also Van Allen v. Sweet, 239 Mass. 571 , 574-75 (1921). Even after his unsuccessful encounter with the Passanisis, Peter Foster did not enter upon the driveway or lawn area "with a clearly indicated purpose of taking possession," or do anything else to claim his land back or interrupt the Passanisis' possession. Pugatch, 41 Mass. App. Ct. at 543 quoting from 4 Tiffany, The Law of Real Property § 1161, at 853 (3d ed. 1975). And, indeed, Peter Foster testified that the Passanisis planted new shrubs and plants in the Slope Area just after he offered to sell them Lot 105A. See Restatement (Third) of Property (Servitudes) § 2.17, Comment j (2000) ("In the absence of a statute [so providing], notice is not effective to interrupt the prescriptive use unless it actually brings about cessation of the use.").

As for Defendants' 2011 actions in obtaining a new survey and having new boundary line stakes set for Lot 105A, these actions came too late since the Passanisis' adverse possession had already ripened by the end of November 2007, well before the Nattis acquired Lot 105A from the Fosters. See Pugatch, 41 Mass. App. Ct. at 543-44 & n.10 (acts of contractor in digging out part of a wall, privet hedge, and part of a lawn, did not effectively interrupt adverse possession because they did not occur within the prescriptive period).

Moreover, Defendants could not effectively refute Plaintiff's evidence that the dimensions of the driveway and adjacent lawn area remained the same throughout the entire statutory period. Plaintiff testified credibly that the driveway has always been in the same location and of the same width, accommodating up to three cars. [Note 22] Her uncontroverted testimony is consistent with her husband's testimony, and is also consistent with the Apple Plan which shows the driveway to be more than 26 feet wide at its widest point. The witness testimony is also consistent with the admitted photographs. For example, Exhibit 35, which depicts three cars parked side-by-side in the Passanisis' driveway, was estimated by Peter Foster as having been taken in the 1991-1992 timeframe. Photographs taken at various times after 1990 show the same driveway, in the same location, ending at a lawn area at the side of the 9 Oxford Road house. At the view, I observed that the driveway was substantially as described by Plaintiff and her husband, and as appears in the photographic evidence. I also observed that the driveway pavement is worn and is breaking up in places, from which I infer that it was paved a number of years ago.

On the basis of the foregoing, I find and rule that Plaintiff has acquired title by adverse possession to so much of the Claimed Area on Lot 105A and Lot 105B that comprises part of the Passanisis' driveway and the strip of lawn extending north from the end of the driveway at the side of 9 Oxford Road. The land acquired by adverse possession, depicted roughly on the attached Decision Sketch #3, follows the line of the Passanisis' driveway northerly to the lawn area (excepting therefrom the small triangle of the driveway at the frontage of Lot 105B, which was not part of the Claimed Area). Said lawn area consists of the relatively flat portion of the land along the side of the Passanisis' house, as bounded on the east by the rough plantings within the Slope Area and by the undergrowth, trees, and brush of the Wooded Area along the northeast, all as generally depicted on Decision Sketch #3. Because the precise dimensions of this area acquired by adverse possession are unknown, Plaintiff will be required to obtain a survey showing its precise dimensions in accordance with the rulings of this decision, before a judgment can enter on this case.

Plaintiff Has Failed to Prove Adverse Possession of Any Other Portion of Defendants' Property.

Plaintiff failed to meet her burden to prove twenty years of actual, continuous, exclusive, adverse use of any other portion of the Claimed Area. [Note 23] In particular, the evidence was insufficient to establish the Passanissis' continuous and exclusive use of the Slope Area and the Wooded Area.

The Slope Area

The first evidence of the Passanisis having taken any actions to improve or use the Slope Area is their planting of five small (approx. 2 ft. high) pine trees in the Slope Area after Peter Foster spoke to Mr. Passanisi of his desire to "improve" the slope. [Note 24] The uncontroverted testimony was that, with the help of Emidio Silva, the Passanisis planted the pine trees at the bottom of the slope sometime after the conversation about the slope in 1991. [Note 25] The clearest and earliest evidence of the actual location of these trees, however, is Exhibit 9, an aerial photograph dated July 19, 1996, which shows a narrow area with small pine trees running parallel to the split-rail fence the Passanisis had previously installed at the northeastern edge of the driveway. [Note 26] Other than planting some forsythia bushes and small shrubs in 1998 (as acknowledged by Peter Foster and shown in Exhibit 16), the Passanisis did nothing else to landscape or plant in this area. Finally, there is no evidence to suggest that the Passanisis used the Slope Area as part of their yard. Instead, the testimony revealed that the Passanisis and the record owners of the Claimed Area, from time to time, both performed minimal and intermittent landscape maintenance in the Slope Area (e.g., by raking, clearing branches and brush, pruning and trimming, etc.) with little or no knowledge as to the actual location of the property boundaries in relation to the Slope Area.

On all the evidence and testimony presented at trial, I find that the Passanisis' limited activities within the Slope Area – planting five small trees in 1991-1992, planting a forsythia bush and small shrubs in 1998, and occasionally pruning, raking and clearing the brush – were "'few, intermittent and equivocal.'" See Sea Pines Condo., 61 Mass. App. Ct. at 847 (quoting Kendall, 413 Mass. at 624). The Passanisis did not routinely use or maintain the Slope Area as if it were part of their suburban side yard. Compare, e.g., Hurlbert v. Kidd, 73 Mass. App. Ct. 1104 , 2008 WL 4820662, at *2 (2008) (Unpublished Memorandum and Order Pursuant to Rule 1:28). They did not plant a vegetable garden or flower bed, mow grass, host family cookouts, park vehicles, or store personal items in that area. See id. Finally, the Passanisis' minimal and intermittent acts of landscaping and maintenance in the Slope Area were not exclusive of the true owners' similar and concurring maintenance and landscaping acts, and thus did not amount to a disseisin. See Peck, 34 Mass. App. Ct. at 557; Eastern R. Co., 135 Mass. at 16. Accordingly, I find that Plaintiff has not has not proven adverse possession of any part of the Slope Area.

The Wooded Area

Plaintiff also failed to prove that she used the Wooded Area openly, notoriously, exclusively and continuously for over twenty years. Plaintiff testified that she and Emidio Silva planted some grapevines and lilac bushes in a portion of the Wooded Area, not long after Silva planted the five pine trees. Her husband testified to such planting in the Wooded Area, but was unable to give a timeframe other than "years ago." Their accounts of where the grapevines and lilac bushes were planted, however, were contradicted by Plaintiff's own witness, Emidio Silva. Silva described putting those plants in an area closer to, and behind, the Passanisis' house (i.e., in an area west of Lot 105A.) There were no photographs admitted at trial to corroborate the Passanisis' testimony over Silva's. But, in any event, a one-time planting of some bushes and vines, without more, would not be enough to establish exclusive possession. There was no other evidence to suggest that the Passanisis had tried to cultivate the Wooded Area. Nor was there any evidence that they enclosed or otherwise exclusively used the Wooded Area as part of their own yard for the requisite twenty-year period. [Note 27]

Finally, although the Passanisis both testified that they occasionally maintained the Wooded Area by raking, breaking up brush and "pricker bushes," and clearing branches, both the Fosters who lived at 7 Oxford Road between 1991 and 1998, and the Nattis, who moved to 7 Oxford Road in September of 2007, also testified to occasionally performing similar maintenance in the Wooded Area. The limited amount of maintenance the Passanisis performed in the Wooded Area after the Fosters moved out in 1998 is borne out by the Nattis' testimony that when they moved into 7 Oxford Road in 2007, the Wooded Area was untended, unmaintained, and overgrown with "pricker bushes" and poison ivy. The Nattis testified that, as soon as they moved in, they cleared part of the Wooded Area, and started to use it to store firewood. My view of the subject properties confirmed that the Nattis are still using this portion of the Wooded Area as part of their own backyard, and that the rest of the Wooded Area remains in a natural, minimally-maintained state.

Without clear evidence of twenty years of actual, exclusive, and continuous use, Plaintiff cannot prevail in her adverse possession claim to the Wooded Area. I find that the maintenance activities the Passanisis performed in the Wooded Area were "'few, intermittent and equivocal.'" See Sea Pines Condo., 61 Mass. App. Ct. at 847 (quoting Kendall, 413 Mass. at 624). Moreover, where the evidence shows that the record owners of the claimed Wooded Area and others similarly performed occasional maintenance in the Wooded Area, I find that the Passanisis' use of the Wooded Area was neither continuous nor exclusive for the statutory period required for adverse possession. See Eastern R. Co., 135 Mass. at 16 ("[U]se or possession. . . which does not exclude a similar use or possession by others, will not confer a title in fee, however long continued."). Therefore, Plaintiff has not proven adverse possession of any part of the Wooded Area.


Based upon the facts I have found, and for the reasons discussed, I find that Plaintiff has acquired title by adverse possession to the portion of the Claimed Area on Lot 105A and Lot 105B where Plaintiff's driveway and adjacent strip of lawn are located, as shown roughly on the attached Decision Sketch #3. However, I find that Plaintiff has failed to prove adverse possession of any other part of Defendants' land. Within ninety (90) days of this Decision, Plaintiff shall submit to this court, and serve upon the Defendants, a survey plan depicting the accurate boundaries of the adversely possessed parcel of land described in this Decision, suitable for recording with the judgment to be entered in this case. Once filed and served, any objections that the survey plan is inconsistent with this Decision must be filed within thirty (30) days.


Decision Sketch 1

exhibit 2

Decision Sketch 2

exhibit 3

Decision Sketch 3


[Note 1] I deem this claim waived because it was not raised or preserved by Plaintiff as a matter for trial in the parties' Joint Pre-Trial Memorandum. The court's Notice of Pre-Trial Conference, ¶ 6, makes clear that "[a]ny claim or defense by a party that is not explicitly listed in the Pre-Trial Memorandum . . . may be deemed waived." As I ultimately conclude that Plaintiff has failed to establish adverse possession of any portion of the wooded area on Defendants' properties where the trees were allegedly cut down, Plaintiff would not have prevailed on the Count II trespass claim in any event.

[Note 2] Although Plaintiff sought a short order of notice on the restraining order request at the outset of this case, that request was denied by the court with instructions to mark the matter for hearing in the usual course. Plaintiff, however, never further marked the matter for hearing and has not pressed this issue during the course of litigation. I also deem this claim to have been waived.

[Note 3] Trial Exhibit 1 is the Parties' statement of nine agreed facts, most of which relate to the record ownership history of the subject lots. Exhibit 2 consists of the eight deeds in the title history set forth in Exhibit 1; they are identified as Exhibits 2A-2H.

[Note 4] Despite the court's instructions at the close of trial evidence, Plaintiff's Proposed Findings of Fact and Rulings of Law, filed on December 14, 2016, contains no citations to the trial evidence, testimony, or exhibits.

[Note 5] The Starknought Heights Plan, recorded with the Essex South Registry of Deeds (the "Registry") as Plan 17 in Plan Book 21, shows a large subdivision of approximately 120 lots. Although the Parties did not admit the Starknought Heights Plan into evidence at trial, said Plan is referenced in the Plaintiff's deed. Thus, the court takes judicial notice of the official Registry record. See Abate v. Fremont Inv. & Loan, 470 Mass. 821 , 831 & n.21 (2015) (citing Mass. R. Evid. 201(b)(2)) (trial or appellate court may take judicial notice of a recorded deed in accordance with Rule of Evidence 201 where neither party contests the facts underlying the instrument).

[Note 6] See Deed from Pinecrest Homes, Inc. to Anthony J. and Faye M. Passanisi, husband and wife, dated January 4, 1985, and recorded on January 7, 1985 with the Registry at Book 7627, Page 38.

[Note 7] See Deed dated August 10, 2009, and recorded on August 28, 2009 in the Registry at Book 28892, Page 207.

[Note 8] See Deed conveying Lot 57 from Jose R. Nunes, formerly known as Jose N. Roberto, to Jose R. Nunes and Regina M. Nunes as joint tenants, dated August 4, 1977, and recorded with the Registry at Book 6379, Page 339, of which the court takes judicial notice.

[Note 9] See Deed conveying Parcel 35-2, being a portion of Lot 57, from Jose R. Nunes and Regina M. Nunes to Faye M. Passanisi, dated August 17, 1987, recorded with the Registry on September 1, 1987 at Book 9163, Page 322.

[Note 10] The Hautala Plan was endorsed by the Gloucester Planning Board as "Approval under Subdivision Control Law Not Required" ("ANR") on July 6, 1987, and recorded with the Registry as Plan 4 in Plan Book 230. The court takes judicial notice of the Hautala Plan recorded with the Registry.

[Note 11] See Deed dated November 2, 1987, and recorded with the Registry on November 3, 1987 at Book 9265, Page 190.

[Note 12] See Decision Sketch #2, showing the outline of the area claimed by Plaintiff (the "Claimed Area"), based upon Plaintiff's Chalk A and testimony by Plaintiff. Although a small triangular piece of the southeastern end of the driveway (approx. 6 s.f.) encroaches on the Lot 105B frontage, that piece of land is not included as part of the area claimed by Plaintiff.

[Note 13] See Deed dated March 16, 1994, and recorded with the Registry on March 28, 1994 at Book 12496, Page 192.

[Note 14] The Apple Plan was endorsed by the Gloucester Planning Board as ANR on September 14, 1998, and was recorded with the Registry on February 22, 1999 as Plan 36 in Plan Book 332.

[Note 15] Although Plaintiff contends that she paid real estate taxes on the additional land area, no evidence of the payments was offered to supplement her testimony.

[Note 16] See Deed from Peter J. Foster, Trustee of SS Realty Trust, and Peter Foster and Diana L. Foster, individually, to Jerome Curreri and Nora Curreri, dated February 19, 1999, and recorded in the Registry on February 22, 1999 at Book 15484, Page 392. Peter J. Foster as Trustee of the SS Realty Trust was named as one of the grantors in this instrument because, as reconfigured, Lot 105B contained a portion of former Parcel 35-1, which had been held by the SS Realty Trust.

[Note 17] See Deed from Jerome Curreri and Nora Curreri to Jessica L. Roberts and Keith E. Natti, joint tenants with rights of survivorship, dated September 20, 2007, and recorded with the Registry at Book 27211, Page 240.

[Note 18] The Fosters continued to hold Lot 105A, but did not do anything with respect to that land.

[Note 19] Neither party directly acknowledges the other's uses or maintenance of the Claimed Area. However, Jessica Natti testified that she told Anthony Passanisi to stop pruning trees in the back wooded area when she saw him doing so (although no time frame is given for this encounter) and Mr. Passanisi's testimony corroborated this confrontation. Additionally, at some point, the Nattis had an arborist remove one or two trees from the Wooded Area nearest to their house. But no specific time frame or other details were given. The Natti's tree removal forms the basis of Plaintiff's Count II claim for trespass, and thus is acknowledged by Plaintiff, however, I have deemed the claim waived for failure to preserve the issue for trial. I credit each witnesses' testimony as to their own minimal and occasional maintenance activities, whether or not witnessed by others.

[Note 20] See Deed dated November 28, 2011, and recorded with the Registry on December 2, 2011 in Book 30885, Page 139.

[Note 21] The Nattis succeeded in requiring the Passanisis' to remove or relocate a storage container that had been placed during construction, which was encroaching on Lot 105A.

[Note 22] Although Defendants sought to impeach Plaintiff and her witnesses on their recollection of when the driveway had been paved with "hot top" (by showing pictures where the driveway appeared to be a lighter gray color), the age of the paving is not of particular relevance. Even if the driveway remained dirt or crushed stone for longer than the witnesses claimed, the evidence at trial sufficiently demonstrated that it has existed in substantially the same location and comprised the same dimensions for at least the requisite twenty years.

[Note 23] Plaintiff argues that her payment of taxes on the land area of Lot 105A from approximately 1998 to 2011 supports her claim with respect to adverse possession of all of Lot 105A. Here, Plaintiff did not submit evidence that she actually paid the taxes; she submitted only the Assessor's property record cards for Lot 56, indicating that an additional area of land was added to the Lot 56 lot size and the valuation was accordingly increased starting in 1998 and ending in 2011, a period of time which falls far short of the statutory twenty years required for adverse possession. But, more importantly payment of taxes is only one consideration. Although "[p]ayment of taxes evidences a claim of ownership," Lawrence, 439 Mass. at 418 (internal quotation omitted), "payment of taxes is not, in and of itself, evidence of adverse possession." Whitman v. Shaw, 166 Mass. 451 , 453 (Mass. 1896). The court must look instead to Plaintiff's actual possessory activities in the Claimed Area.

[Note 24] The parties' account of this event differs markedly. I credit Mr. Foster's testimony that he did not ask the Passanisis to do anything with the slope, but was only observing that something needed to be done.

[Note 25] I do not view Peter Foster's failure to interfere with the Passanisis' planting of trees in the Slope Area to be akin to the true owner giving permission to use the area. Rather, his acquiescence appears to be consistent with the shared, but mistaken, belief among these neighbors that the slope fell on the Passanisis' side of the property boundary. See Kendall, 413 Mass. at 622-23 ("It is well established in Massachusetts that permissive use based on a mutual mistake as to the location of a boundary line will not defeat a claim of adverse possession.").

[Note 26] Although Plaintiff testified that Exhibit 10, a photograph she claims was taken in 1990, depicts the trees as planted in the late 1980's, the testimony from other witnesses and other photographic evidence admitted at trial contradicts her testimony. Emidio Silva testified that he helped the Passanisis plant the trees in 1991 or 1992. Silva's testimony aligns with Peter Foster's testimony that he spoke with Mr. Passanisi concerning his desire to improve the slope when he was constructing his home in 1991. In fact, Exhibit 10 relied upon by Plaintiff shows the Fosters' completed home in the background, so the photograph could not have been taken in 1990. In addition, from the context of other pictures, the vantage point in Exhibit 10 appears to be much farther back on the Passanisi lot, and closer to the Fosters' home, than the actual location of the planted trees as shown in other photographs and even on Plaintiff's Chalk A. Compare Exhibit 9 (aerial photgraph) and Exhibit 15 (showing location of the green chairs and steps leading to the Fosters' home).

[Note 27] Although apparently not objected to by the then-record owners, the makeshift treehouse the Passanisis built for their son in the Wooded Area in 1986 lasted only a few years before collapsing.