TRUSTEES OF THE 3-5 HARVARD ROAD CONDOMINIUM v. ALAN TAM.

A residence and a commercial condominium occupied in part by a day-care facility share a poorly delineated boundary in a densely populated neighborhood between Coolidge Corner and Brookline Village in the town of Brookline. This condition is a recipe for dispute, and it is unsurprising that one has arisen. The plaintiff Trustees of the 3-5 Harvard Avenue Condominium [Note 1] (the "Trustees") claim title by adverse possession to a narrow, pie-shaped strip of land running adjacent to their rear yard on land in the record ownership of the defendant Alan Tam. The court is now asked to determine whether the Trustees used the area sought to be adversely possessed in an actual, open, notorious, continuous, exclusive and adverse manner for a period of 20 years.

The Trustees filed the present action on November 2, 2016, alleging one count for declaratory relief and one count for adverse possession. Following the completion of a survey confirming the record boundary line between the two properties, the plaintiffs waived their claim for declaratory judgment, and now press only their claim of adverse possession.

On May 31, 2018, I conducted a view of the plaintiffs' and defendant's properties. A trial was held before me on May 31 and June 1, 2018, at which time five witnesses testified and twenty-five exhibits were admitted into evidence. Following the submission of post-trial briefs, proposed findings of fact and rulings of law, and closing arguments, I took this matter under advisement on September 5, 2018.

For the reasons stated below, I find and rule that the plaintiffs have not acquired by adverse possession the entire disputed area. However, I find and rule that the plaintiffs acquired by adverse possession the portion of land within the disputed area formerly occupied by the shed depicted in Exhibit 23; and have acquired an easement by prescription in order to access the former location of the shed regardless whether the plaintiffs choose to construct a new shed in this location.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, my view of the subject properties, and my assessment as the trier of fact of the credibility, weight and inferences reasonably to be drawn from the evidence admitted at trial, I make factual findings as follows:

The Parties and the Properties

1. The "3-5 Harvard Avenue Condominium" was created by master deed dated February 4, 1981 and recorded with the Norfolk County Registry of Deeds ("Registry") in Book 5387, Page 205. The condominium site plan was recorded as Plan No. 93 of 1981. The Condominium is located at 3-5 Harvard Avenue, at the corner of Harvard Avenue and Harvard Street, in Brookline (the "Condominium property"). The building on the Condominium property is occupied as a four-unit commercial condominium, with no residential use.

2. Trustees of the Condominium include Haleh Azar and her husband Ali Shajii.

3. In July 1994, Ms. Azar purchased Brookline Family Dental, a dental practice operated out of unit 2 at the Condominium property.

4. In 1998, Ms. Azar purchased unit 2, where she operates Brookline Family Dental.

5. Ms. Azar presently owns units 2, 3, and 4 at the Condominium property.

6. In 1994, Ina Brother began operating Little Corner Schoolhouse, a children's day-care center, out of unit 1 at the Condominium property. Unit 1 is located on the first and basement floors of the Condominium property.

7. The Little Corner Schoolhouse provides day-care services to approximately 55 children each day.

8. Ms. Brother rented unit 1 at the Condominium property from Frederick S. Lebow from 1994 until 1998, before purchasing unit 1 by virtue of a deed recorded at the Registry on August 6, 1998, at Book 12719, Page 309. [Note 2]

9. At the time Ms. Brother purchased unit 1, the property already had an emergency egress leading out to a bulkhead located on the Condominium property near the boundary of the Tam property at 7 Harvard Avenue. [Note 3]

10. Next door to the Condominium property, sharing a boundary running from north to south along the westerly boundary of the Condominium property, is the property at 7 Harvard Avenue, (the "Tam property") owned by defendant Alan Tam. The Tam property is improved by a single-family dwelling, with a driveway on its easterly side near the boundary with the Condominium property.

11. In 1976, Kam Chan Tam and Ng Kan So Tam purchased the Tam property, where they resided with their two sons—including Alan Tam—and two daughters.

12. Alan Tam acquired the Tam property on May 29, 2012 from his parents, Kam Chan Tam and Ng Kan So Tam, by a deed recorded in the Registry in Book 30012, Page 3. [Note 4]

13. Alan Tam began living at the Tam property with his parents in 1976 when his parents purchased the property. He resided at the Tam property at all material times except from 1994 to 1996 when he resided in Arizona and Vermont and from 2005 to 2008 when he resided in Framingham. Thereafter, he moved back to the Tam property where he continues to reside. [Note 5]

14. At all times while Mr. Tam resided in Massachusetts, he maintained the premises at 7 Harvard Avenue, including the disputed area, by raking the leaves, shoveling snow and repairing the wall near the boundary of the Condominium property.

15. I credit Mr. Tam's testimony that when he lived in Framingham, he continued to maintain the Tam property, where his parents resided, including the disputed area, by raking the leaves and shoveling snow. [Note 6]

16. Mr. Tam presently resides at the Tam property with his wife, two children and his parents.

17. Mr. Tam has worked out of his home at the Tam property since 2012.

18. Mr. Tam's home office is located in the top right corner of his home, providing him with a view of the disputed area from his home office.

The Disputed Area

19. The disputed area claimed by the Trustees is a narrow, triangle-shaped incursion into the Tam property at the rear of the two properties. The disputed area is bounded 94.45 feet by the eastern record boundary of the Tam property with the Condominium property, 2.4 feet along the northern boundary of the Tam property, and then runs south for about 84 feet at an angle so as to run back into the eastern boundary of the Tam property. The disputed area comprises about 191 square feet. The disputed area is depicted on Exhibit 23.

20. The physical characteristics of the disputed area that gave rise to the misunderstandings forming the basis for the present dispute have to do with the cinder block or concrete block wall and stacked railroad ties erected by Mr. Tam's father on the Tam property to delineate the higher grade of his driveway, resulting in the appearance of a boundary fence and wall that actually ranged a couple of feet onto the record property of the Tam property.

21. The cinder block wall and railroad ties were erected in 1976 by Mr. Tam's father in order to prevent vehicles from "falling off" of his driveway, which was at a higher grade than the land on the eastern edge of the Tam property. The wall and stacked railroad ties extended from the rear of the two properties, about two-thirds of the distance from the rear of the properties toward Harvard Avenue. [Note 7]

22. The cinder block wall extended approximately 12 feet in length from the rear of the two properties and was approximately 3-4 feet in height on the Condominium property side, and was lower on the Tam property side, where the driveway was at an elevated grade. [Note 8]

23. Extending from the end of the cinder block wall was a low "wall" consisting of railroad ties, stacked two-high. The railroad ties, resting on the ground without any footings or other support, were about 6 or 7 inches wide, and so the height of the stacked ties was no more than about 12 to 14 inches. [Note 9] The stacked ties had the appearance of a "little retaining wall." [Note 10] I do not credit testimony of witnesses who estimated the height of the stacked railroad ties to be as much as two feet; this is inconsistent with the testimony as to the width of the railroad ties, the undisputed testimony that they were stacked only two-high, and is further inconsistent with the appearance of the several railroad ties that were still at the property at the time of my view.

24. There may have been a chain link fence attached to the railroad ties at one time, but by 2000, there were only some rusted metal posts attached to the railroad ties, with any chain link fencing that may have been attached to the posts no longer present. [Note 11]

Use of the Disputed Area by the Tams

25. From the time the block wall was built in 1976, Mr. Tam routinely used the disputed area except from 1994 to 1996 when he lived in Vermont and Arizona. [Note 12]

26. As a young child, Mr. Tam and his siblings played on the block wall and stacked railroad ties. [Note 13]

27. As he grew older, he and his brother were tasked with raking leaves and shoveling snow off their driveway and the disputed area. [Note 14]

28. Mr. Tam cleared out leaves in a gap under the railroad ties, along the wall adjacent to the shed, and in front of the shed area. [Note 15]

29. Up until 2010, Mr. Tam's brother helped maintain the premises of the house including the disputed area. [Note 16]

30. Sometime in 2000, Mr. Tam's brother was tasked with repairing the cinder block wall. [Note 17]

31. Mr. Tam testified that equipment and extra materials including bricks, cinder blocks, and wood used to repair the wall were stored between the cinder block wall and the shed used by the plaintiffs, within the disputed area. [Note 18] I credit this testimony.

Use of the Disputed Area by the Condominium

32. Ms. Azar testified that vendors were hired to landscape and clean up the Condominium property, including the disputed area, once a week, sometimes twice a week. There was no "landscaping" done in the rear area of the Condominium property other than seasonal blowing and removal of leaves, weeding and snow removal. [Note 19] I credit this testimony, and find that it is not inconsistent with the activities claimed by Alan Tam, but that no snow removal took place in the disputed area.

33. Ms. Azar testified that her staff would use the disputed area in order to access the trash storage area behind the Condominium property at least once a day, but she acknowledged that access to the disputed area was not required to access the trash storage area. [Note 20] I do not credit her testimony that the disputed area was used on any more than a sporadic basis for access from the front of the building to the rear where the trash barrels were stored.

34. Ms. Brother testified that during snow storms, landscapers would clear snow from the Condominium property, including the disputed area, in order to allow Ms. Azar's staff access to the trash barrels stored behind the condominium property. [Note 21] I do not credit that snow was cleared from the disputed area in order to access the trash barrels, as there was room on the Condominium property on the side of the building to reach the rear, and the trash barrels were stored elsewhere on the property, and because her testimony is inconsistent with that of the landscaper with respect to snow removal.

35. The Condominium's landscaper since 2000, Nicholas Lemus, testified that he was responsible for snow removal on the Condominium property, and that he did not remove snow from the disputed area between the shed and the block wall. [Note 22] I find that the Condominium did not remove snow from the disputed area, except perhaps on a sporadic basis.

36. I do not credit Ms. Brothers' testimony that she had a drain installed in the disputed area. The alleged drain is not evident in any of the photographic evidence and no drain was visible on my view.

37. I credit Alan Tam's testimony that the block wall and railroad ties were not erected to prevent access to the disputed area, and that they did not function to prevent such access, as the block wall was at most a few feet high and the railroad ties were only 12 to 14 inches high. [Note 23]

38. I do not credit Ms. Brother's testimony that the disputed area was used as a regular play space to display artwork and build "fairy" houses, considering the number of children enrolled at Little Corner Schoolhouse, the size of the disputed area, the small size of the rear common area of the Condominium, and considering the school's access to a park across the street. [Note 24] Furthermore, Ms. Brothers' testimony as to the use of the rear area of the Condominium property by her school was imprecise and general with respect to any particular use of the disputed area, and I do not find that there was any regular, non-sporadic use of the area by the children attending her school. The testimony as to hanging of artwork on the "fence" or wall did not indicate that this occurred on more than a few occasions, and thus this use was too sporadic to constitute an adverse use.

39. I credit Alan Tam's testimony that he told employees of Little Corner Schoolhouse on more than one occasion to remove wet clothing placed on the wall to dry. [Note 25]

40. I do not credit the plaintiffs' testimony that bikes, strollers, or other pre-school equipment were stored in the disputed area other than inside the shed. [Note 26]

The Shed

41. At the time Ms. Brother began renting unit 1, a shed (the "old shed") existed primarily on the Condominium property with the western edge of the shed lying partially within the disputed area. [Note 27]

42. The old shed was used by Ms. Brother to store strollers, tables, outdoor toys, and carts used by the pre-school. [Note 28]

43. Sometime after 1994 and before 2018, the old shed was replaced with a new shed. [Note 29]

44. The new shed was used by Ms. Brother in substantially the same manner as the old shed. [Note 30]

45. I credit the testimony of Ms. Brother that the new shed was built using the same footings on the same footprint and with the same dimensions as the old shed. [Note 31]

46. I also find that the new shed was built more or less contemporaneously with the removal of the old shed, and in any case, in a short enough time so as to negate any inference that any adverse use of the land under the shed was interrupted or abandoned.

47. The new shed was removed by H&M Landscapers in 2018.

DISCUSSION

The plaintiffs argue that they acquired title by adverse possession of the disputed area, including the land under the former location of the shed, which was partially located within the disputed area. The plaintiffs assert that the 20-year period to establish adverse possession began in 1994, when the present owners of units in the Condominium began operating their respective businesses, hired vendors and landscapers to maintain the outside common area of the Condominium property, and claim they used the disputed area in conjunction with their businesses.

The defendant maintains that the plaintiffs failed to make sufficient use of the disputed area so as to prove adverse possession, and further maintains his own use of the disputed area over this period of time was open and visible and consisted of storing building materials, landscaping and maintaining the disputed area, removing leaves, and performing repairs to the fence. The defendant contends that he used the disputed area to store bricks, pieces of wood, cinder blocks and other supplies for at least a ten-year period beginning in 2000, thus interrupting any adverse use and making any adverse use non-exclusive. In addition, the defendant asserts that the plaintiffs are unable to sustain an adverse possession claim for the shed because they did not present evidence showing that the new shed was built contemporaneously with the removal of the old shed.

"Title by adverse possession can be acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive, and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251 , 262 (1964). "One claiming a title by adverse possession ... [o]nly has to prove his case by a fair preponderance of the evidence." Inhabitants of Cohasset v. Moors, 204 Mass. 173 , 178–79 (1910). The burden of proof in any adverse possession case rests on the claimant and extends to all of the necessary elements of such possession. Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Id. "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." Id., quoting Cook v. Babcock, 65 Mass. 206 , 210 (1853). To prevail in a claim of adverse possession, the plaintiff must prove that each of these elements continued uninterrupted for a period of twenty years. See Kendall v. Selvaggio, supra, 413 Mass. at 621; G. L. c. 260, §§ 21-22.

"An adverse possession claim requires that possession be 'actual' in nature, meaning that the possessor must be actually utilizing the land that he or she is claiming." Chew v. Kwiatkowski, 19 LCR 88 , 91 (Mass. Land Ct. 2011) (Trombly, J.). To prove actual use, the plaintiff "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 Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847, quoting Peck v. Bigelow, 34 Mass. App. Ct. 551 (1993). As the sufficiency of these acts will vary depending on the particular features of the land in question, the court must consider the conjunction of "the nature of the occupancy in relation to the character of the land." See id., quoting Kendall v. Selvaggio, 413 Mass. 619 , 623–624 (1992). Put another way, "the nature of the occupancy and the use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right; (for instance) in the circumstances of wild and unimproved land, a more pronounced occupation is needed to achieve that purpose." Sea Pines Condominium III Ass'n v. Steffens, supra, at 848. "Evidence insufficient to establish exclusive possession of a tract of vacant land in the country might be adequate proof of such possession of a lot in the center of a large city." LaChance v. First Nat'l Bank & Trust Co., supra, 301 Mass. at 490. Erecting permanent improvements or undertaking major landscaping alterations are often the type of significant changes that indicate actual use and possession. See Peck v. Bigelow, supra, 34 Mass. App. Ct. at 557. In contrast, "[a]cts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession." Kendall v. Selvaggio, supra, 413 Mass. at 624, quoting Parker v. Parker, 83 Mass. 245 , 247 (1861). "[T]he determination whether a set of activities is sufficient to support a claim of adverse possession is inherently fact-specific." Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847.

An open use is one undertaken 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). Therefore, "[t]he nature of the occupancy and the use must be such as to place the lawful owner on notice that another person is in occupancy of the land, under an apparent claim of right." Sea Pines Condo. III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 848. Acts under a claim of right are those undertaken "with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of everyone else." Lawrence v. Town of Concord, supra, 439 Mass. at 421. "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 v. Town of Concord, 439 Mass. 416 , 421 (2003), quoting Ottavia v. Savarese, 338 Mass. 330 , 333 (1959). "[I]t is immaterial whether the true owner actually learns of that use or not." Id. "The extent of openness and notoriety necessary for the acquirement of title by adverse use varies with the character of the land." Tinker v. Bessel, 213 Mass. 74 , 76 (1912).

The plaintiffs must also demonstrate their use of the property was adverse. This requires showing of a "lack of consent from the true owner." Totman v. Malloy, 431 Mass. 143 , 145 (2000). "[P]ermissive use is inconsistent with adverse use." Ryan v. Stavros, supra, 348 Mass. at 263. "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).

Finally, the plaintiffs' use of the area must be exclusive. For a showing of exclusivity, "the use must encompass a 'disseisin' of the record owner." Peck v. Bigelow, supra, 34 Mass. App. Ct. at 557. "That is to say 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). "Acts of enclosure or cultivation are evidence of exclusive possession." Labounty v. Vickers, 352 Mass. 337 , 349 (1967). Enclosure of land by a fence is ordinarily the gold standard of proof of adverse possession: it provides direct and often incontrovertible evidence of possession that is open and notorious, that excludes the record owner, and it provides the adverse possessor with demonstrably exclusive use of the land. See, e.g., Brandao v. DoCanto, 80 Mass. App. Ct. 151 , 157-158 (where "fence stood in same location for twenty-four years, [it] 'was, of course, open and obvious to all for as long as it stood.'"); Kendall v. Salvaggio, supra (fence encroaching 8 or 9 feet on landowner's property served as proper basis for finding of adverse possession even though fence was constructed without regard to or knowledge of location of property boundary); Wood v. Quintin, 328 Mass. 118 , 119, 102 N.E. 2d 495 (1951) (title by adverse possession acquired despite parties' mistaken belief that fence was located on property boundary). However, a fence that does not serve to enclose the land sought to be acquired, and does not serve to exclude the record owners, will not serve as sufficient evidence of exclusive use. Lutz v. Bauman¸ 25 LCR 614 (2017) (Speicher, J.)

The requirement that the use be under a claim of right simply means that the occupancy be "with an intention to appropriate and hold the same as owner, and to the exclusion, rightfully or wrongfully, of everyone else." Lawrence v. Town of Concord, supra, at 421, fn. 5, quoting Bond v. O'Gara, 177 Mass. 139 , 144 (1900). "[C]ourts must look to the physical facts of entry and possession as evidence of an intent to occupy and to hold property as of right." Kendall v. Salvaggio, 413 Mass. 619 , 624 (1992).

1. The plaintiffs' use of the disputed area was not sufficiently adverse or notorious so as to put the defendant or his predecessors in title on notice of an adverse claim.

Although a fence is "ordinarily the gold standard" for demonstrating an adverse enclosure of another's land, in the present case the low block wall and two-high stacked railroad ties served no such purpose. The block section of the wall was less than twenty feet in length and was less than four feet high on the Tam property side, and did not block access to the disputed area in any effective way, with Mr. Tam testifying (and I credit his testimony) that he regularly went over this wall to access construction materials that he stored in the disputed area or to rake leaves. The railroad tie section was low enough to step over and could reasonably be construed as nothing more than a landscaping feature, not an enclosure or a fence blocking physical access to either property.

The uses of the disputed area fare no better, as they were insufficient to give notice to the owner of the property that these activities were intended to demonstrate exclusive dominion over the disputed area or that they had the effect of excluding the record owner from the disputed area. The activities claimed by the plaintiffs were for the most part activities of the children in the day-care center at the Condominium playing in the back yard of the Condominium, with their activities straying into the disputed area. There is nothing about children running over a property line while playing that would legitimately put the record owner on notice that the custodian of the children intends by that activity to be depriving the record owner of his title. The hanging of wet clothing or artwork on the block wall is similarly insufficiently adverse in nature or notorious to put the record owner on notice of the adverse intentions of the plaintiffs. Ms. Brother testified that the disputed area was used in conjunction with her pre-school business. She stated: "[w]e took the curriculum and we brought the indoor curriculum to outdoor curriculum, all the time, through all seasons. Not so much in the wintertime but in the summer and spring and fall." [Note 32] Ms. Brother noted that they would tie-dye tee shirts, display artwork, and build "fairy" houses using the disputed area. In addition, Ms. Azar testified that "[she] had observed the staff from the day-care center [] go there routinely to store their bikes or the strollers for the children. They would sometimes display artwork for the children in that area." [Note 33] However, Ms. Brother later testified that the strollers and bikes were stored in the shed. [Note 34] I do not find the testimony by either plaintiff—that the disputed area was continuously used as a play space—to be credible considering the number of children enrolled at Little Corner Schoolhouse, the small size of the back yard of the Condominium and of the disputed area, and the proximity of the pre-school to the park across the street, which Ms. Brother testified the children used. [Note 35] Moreover, Ms. Brother failed to establish by clear proof that any such activities were performed on a regular basis in the disputed area. Sea Pines Condo. III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004); Cook v. Babcock, 65 Mass. 206 , 210 (1853).

To the extent that such actions are sufficiently adverse, which I find they were not, Alan Tam's request that the clothing be removed from the wall, and the staff's compliance with this request, interrupted the adverse acts so as to defeat this aspect of the plaintiffs' proof of adverse use of the disputed area. Pugatch v. Stoloff, 41 Mass. App. Ct. 536 (1996).

The plaintiffs' other evidence of activities in the disputed area, such as raking of leaves, snow removal, and sporadically walking over the disputed area to access the rear where the trash barrels were stored, is also insufficient to support the plaintiffs' claims. When Ms. Azar was asked about her recollection of the disputed area as it stood in 1994, she stated that "[t]here was some, you know, reminiscence of some grass, leaves, trees were there. Basically not very much different, minus the gravel, of what it looks like today." [Note 36] Ms. Azar stated that the only improvement made to the disputed area consisted of the laying of gravel over the disputed area at least once since 1994 to prevent flooding. She further noted that "[i]t [the gravel] may have been replenished, over the years… [however] I don't have an exact recollection of that." [Note 37] Likewise, Ms. Brother was asked if any new construction or new modifications were made to the property while she operated her business at 3-5 Harvard Avenue. She stated, "other than the indoor construction, on the outdoor[,] not that I recall." [Note 38] Thereafter, Ms. Brother recalled having gravel placed around the property at some point after she purchased unit 1 in 1998, noting that the gravel was "replenished, [and] refilled a few times," but failed to recall when the gravel was first placed on the property or when it was replenished. [Note 39] The Condominium's landscaping contractor, Mr. Lemus, testified that while he was hired by the plaintiffs to place the gravel at the rear of the Condominium property, he only "put [the gravel] on one time." [Note 40] He further testified that he placed the gravel "[r]ight in the corner in front of the shed. . . to [towards] the windows…" [Note 41] I find that the gravel was not placed in the disputed area, and regardless whether any of the gravel spilled over into the disputed area, the plaintiffs failed to prove that such an improvement to the land was performed on a routine or regular basis. In Kendall v. Selvaggio, the Court found that a use so random and infrequent, is insufficient to substantiate the plaintiffs' actual possession of the disputed area. 413 Mass. at 624, quoting Parker v. Parker, 83 Mass. 245 , 247 (1861) ("Acts of possession which are 'few, intermittent and equivocal' do not constitute adverse possession.").

Lastly, while Ms. Azar testified that her staff would use the disputed area to access the trash storage area behind the property at least once a day, she acknowledged that such access was not required in order to access the area behind the Condominium where the trash was stored. [Note 42] None of these activities rise to the level of "changes upon the land that constitute 'such a control and dominion" over the disputed area "as to be readily considered acts similar to those which are usually and ordinarily associated with ownership." Sea Pines Condominium III Ass'n v. Steffens, supra, 61 Mass. App. Ct. at 847.

"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 v. Town of Concord, 439 Mass. 416 , 421 (2003). As I find and rule that the plaintiffs' claimed activities in the disputed area were insufficiently adverse and notorious to put the Tams on notice of the hostile nature of the activities, the claim for adverse possession of the disputed area, except as provided below, fails.

2. The plaintiffs' use of the disputed area was not exclusive.

The plaintiffs' claim also fails because they failed to exclude others, specifically the Tams, from accessing and using the disputed area. Alan Tam testified, and I credit his testimony, that the block wall and rail ties constructed by his father in 1976, did not prevent the Tams from accessing the disputed area. "[The wall] was only 2 feet. We'd just hop right over it. I had 2 by 4s on top, so I mean you can step right on top of it and over." [Note 43] As a young child, he and his siblings played on the wall, attempting to balance on the railroad ties. [Note 44] As he grew older, he and his brother were tasked with leaf raking and leaf blowing duties as well as shoveling snow off of the disputed area and their remaining driveway. [Note 45] In order to perform these duties, he accessed the disputed area on a routine basis. [Note 46] Sometime in 2000, Alan Tam's brother was tasked with repairing the cinder block portion of the wall. [Note 47] Alan Tam testified that equipment and extra materials, including bricks, cinder blocks and wood, used to repair the wall were stored between the cinder block wall and the shed used by the plaintiffs. He further testified that after 2000, he stored extra cinder blocks and pressure treated wood in the disputed area for "probably over ten years." [Note 48]

For all of the aforementioned reasons, the plaintiffs failed to establish that they continuously used the disputed area to the exclusion of others.

3. The plaintiffs have established title by adverse possession to the shed location.

While the plaintiffs have failed to establish their claim for adverse possession of the disputed area generally, the small portion of the disputed area occupied by two successive sheds on the same footprint presents different facts and hence a different result. The most recent shed, removed earlier in 2018, and its predecessor, were placed along the back fence of the Condominium property, and intruded over the record boundary line of the Tam property into the disputed area by about a foot to a foot and a half. [Note 49] The shed was present when Ms. Brother began using it in connection with her day-care business in 1994, and remained until she had it replaced at some time prior to the commencement of the present action, with a new shed on the same footprint. Ms. Brother used the two successive sheds to store strollers, tables, swimming pools, and other equipment and toys used by her day-care business. There was no suggestion at trial that the replacement of the first shed with the second shed was anything other than contemporaneous, and I so find, that the encroachment by part of the shed was continuous for a period of twenty years, was open, notorious, adverse, exclusive, and was without the permission of the Tams, either explicit or implicit. The removal of the second successive shed earlier this year does not interrupt the plaintiffs' adverse possession of the portion of the footprint of the shed that encroached on the Tam property, because plaintiffs had already acquired this portion of disputed area upon which the shed stood by adverse possession immediately upon meeting the 20-year time period. Owens v. Buccheri, 89 Mass. App. Ct. 1115 (2016).

For the reasons stated above, the plaintiffs have also established a prescriptive easement for the minimum area in front of the shed necessary to access the area formerly occupied by the shed.

4. Defendant's trespass and nuisance counterclaims.

Defendant Tam asserted counterclaims sounding in trespass and nuisance and sought damages for each count. As tort claims for damages, these claims are beyond the subject matter jurisdiction of the court, and the court declines to accept ancillary jurisdiction. Ritter v. Bergmann, 72 Mass. App. Ct. 296 , 299-300 (2008). In any event, the defendant offered no evidence in support of his claims for damages. Accordingly, these counterclaims will be dismissed.

CONCLUSION

For the reasons stated above, judgment will enter declaring that the plaintiffs have established their title by adverse possession to the footprint, insofar as it encroaches on the property owned as a matter of record by the defendant Alan Tam, formerly occupied by the second shed, and the plaintiffs have established a prescriptive easement to the minimum area on the Tam property necessary to approach the footprint formerly occupied by the shed. The plaintiffs' claims will otherwise be dismissed, as will the defendant's counterclaims. The plaintiffs are to submit to the court within thirty days of the date of this decision a plan prepared by a registered land surveyor in a form suitable for recording, showing the land acquired by adverse possession and the easement by prescription, as described in this decision. The defendant will have seven days following the submission of the plan to file any objections to the plan, and the court will thereupon decide whether to accept the plan. Upon acceptance of the plan by the court, judgment will enter accordingly.