Home ZARINA BRAXTON, as Trustee of the 27 Walnut Street Realty Trust v. CITY OF BOSTON.

MISC 17-000320

March 8, 2018

Suffolk, ss.



Zarina Braxton, the trustee of the 27 Walnut Street Realty Trust, filed this action against the City of Boston in June 2017. She claimed to be the owner of an industrial property at 27 Walnut Street, in the Hyde Park section of Boston. 27 Walnut Street abuts a property owned by the City of Boston that's also on Walnut Street. The City seized that property in 2006 after its former owner stopped paying property taxes.

Trustee Braxton's lawsuit asked this Court to declare that the prior owners of 27 Walnut Street had obtained by prescription the right to cross a corner of the City's parcel in a manner that accommodated "the ingress, loading and egress of flat-bed trailers" associated with industrial activities at 27 Walnut Street. Prescriptive easement cases are standard fare at the Land Court, and Trustee Braxton's complaint presented nothing extraordinary. But at the Court's first conference with both of the parties in this case, the City raised an objection seldom heard in prescriptive-easement disputes: that Trustee Braxton didn't own 27 Walnut Street (or, to put it in lawyers' parlance, she "lacked standing" to assert any property rights that might be associated with 27 Walnut Street).

The City subsequently moved to dismiss Trustee Braxton's claims for lack of standing. The City pointed out that Trustee Braxton traced her title to 27 Walnut Street from a deed given by Eric N. Berkowitz to Robert Belcher, dated December 21, 2016 (the "Belcher Deed"). That deed is recorded at the Suffolk County Registry of Deeds in Book 57311, Page 247. The City provided, however, an affidavit from the same Eric N. Berkowitz. (As several Berkowitzes have roles in this action, this Decision will refer to Eric and his relatives by their first names.) In his affidavit, Eric denied signing the Belcher Deed.

In response, Trustee Braxton argued that the Belcher Deed was notarized and had been properly recorded. That created a presumption that Eric had signed the Belcher Deed; Keville v. McKeever, 42 Mass. App. Ct. 140 , 158 n. 23 (1997), suggests that there must be clear and convincing proof that an apparently notarized document wasn't notarized before anyone can question the document's legitimacy. Trustee Braxton also argued that she had taken title to 27 Walnut Street from Mr. Belcher (whom Trustee Braxton disclosed was her husband) without notice of any problems in the Belcher Deed, and therefore she claimed to have obtained title to 27 Walnut Street as a "bona-fide purchaser."

The notarized Belcher Deed plus a later deed from Mr. Belcher to Trustee Braxton was enough, at the earliest stages of this case, for the Trustee to pass the test for when a person has standing to file a lawsuit asserting property rights. Owing to disputed facts surrounding both the Trustee's alleged good faith in purchasing 27 Walnut Street, as well as her prescriptive-easement claims, the Court ordered the parties to trial on February 22, 2018. Based on the parties' admissions, the admissible evidence, and the arguments of counsel, the Court makes the following findings:

1. 27 Walnut Street sits on the north side of Walnut Street. The City's Parcel abuts 27 Walnut Street to the west.

2. The first owner of 27 Walnut Street who figures in this case is Carl Berkowitz, Eric's father. Carl bought 27 Walnut Street in September 1972. Carl ran a metal fabrication business from a single building on the property.

3. Prior to the 1990s, the 27 Walnut Street building had three entrances. Two of them, an overhead door and a standard door, faced south and opened directly onto Walnut Street. The third entrance, also an overhead door (the "Original West Door"), faced west towards the City's Parcel.

4. At least as far back as 1991, flat-bed trucks laden with iron, steel and other metals sometimes entered or backed through the Original West Door by crossing a triangle of land (the "Triangle") at the southeast corner of the City's Parcel. The Triangle is a right triangle. Its southern side is 35-feet long and runs along Walnut Street. Its eastern side (abutting 27 Walnut Street) is 31-feet long. At the time of trial, a concrete retaining wall ran along the entirety of the Triangle's hypotenuse.

5. Trustee Braxton offered no evidence as to who owned the City's Parcel between 1991 and March 1994. Trustee Braxton also offered no evidence that Carl used the Triangle during that time without the permission of the owner of the City's Parcel, whoever the owner was.

6. Between 1991 and 1994, Carl constructed an addition to the west side of the 27 Walnut Street building. Eventually, the addition allowed Carl to relocate the Original West Door (the "New West Door") to within inches of the property line between 27 Walnut Street and the City's Parcel. Flat-bed trucks continued to use the Triangle to enter, leave, or back through the New West Door. Trucks used the Triangle more frequently after construction of the New West Door than they had when the Original West Door existed.

7. In March 1994, March Iron, Inc. purchased Carl's metal-fabrication business. Carl nevertheless kept 27 Walnut Street, and leased the entire site to March Iron.

8. March Iron did substantially more business at 27 Walnut Street than Carl did. March Iron nevertheless moved its operations out of 27 Walnut Street, and ceased doing business there, in the spring of 2012.

9. March Iron didn't get permission from the owners of the City's Parcel to use the Triangle for ingress and egress by flat-bed trucks using the New West Door. Via a deposition transcript admitted into evidence without objection, March Iron's president, William S. DiNardo, Sr., testified that he tried to find out who owned the City's Parcel, but he couldn't locate the owner, and thus never asked that owner for permission to continue using the Triangle.

10. Carl died in October 2000. At the time of his death, Carl was married to Laura Berkowitz. She died in May 2006. Laura was survived by her three sons, who are named Eric, Fred Berkowitz, and Mark Berkowitz.

11. After Laura's death, Eric and his brothers determined that she didn't leave a will. They believed that her estate retained title to 27 Walnut Street, and that the only way that the estate or they could sell 27 Walnut Street lawfully was to have Laura's estate probated. Eric and his brothers thought that probating Laura's estate would require probate filings in both Florida and Massachusetts. They thought that those efforts wouldn't be worth the time or expense.

12. In 2012, after March Iron ceased operating from 27 Walnut Street, Eric began receiving offers to buy 27 Walnut Street. The offers came from Robert Belcher and Donald Brown. Messrs. Belcher and/or Brown tried to present those offers through various means. Someone once contacted Eric's house; someone twice spoke to Carl and Laura's attorney (who relayed the offers to Eric); and Brown called Eric's sister-in-law. Eric talked with an attorney and with his brothers about the offers. The Berkowitz brothers decided not to market 27 Walnut Street, still believing that it wasn't worth the cost of probating their mother Laura's estate.

13. Mr. Brown contacted Eric again in December 2012 about 27 Walnut Street. Brown claimed to be working on behalf of Mr. Belcher. Eric declined Belcher's offer. In January 2013, Brown and Belcher appeared unannounced at Eric's home in Amherst, Massachusetts. Belcher offered again to buy 27 Walnut Street or, alternatively, lease the property with an option to buy it. Eric declined both proposals, largely because he didn't want to incur probate costs. Belcher made similar offers to Eric in February and March 2013, but the Berkowitz brothers refused those offers again.

14. In February 2013, the City of Boston filed an action in this Court under G.L. c. 60 to foreclose all rights of redemption in 27 Walnut Street (the "Tax Lien Case"). The City alleged that Carl (the only owner of record for 27 Walnut Street) had not paid real-estate taxes on the property for 2009. The City thus held a tax lien on the property, and the Tax Lien Case (docketed by this Court as Case No. 13 TL 145975) was a step toward giving the City title to 27 Walnut Street.

15. In October 2013, Mr. Belcher sued Eric in Suffolk Superior Court. Belcher claimed that Eric had breached an alleged contract to sell 27 Walnut Street. Eric denied Belcher's claims. Belcher voluntarily dismissed the Superior Court suit in April 2015. Eric testified truthfully at trial in this case that he didn't know why Belcher dismissed the Superior Court case. Eric also testified truthfully that he hadn't entered into any settlement with Belcher over the Superior Court case, and never entered into any agreement with Belcher to sell 27 Walnut Street or any interest Eric might have in the property.

16. In early 2015, Eric learned that the Massachusetts State Treasurer was holding approximately $200,000 owned by his mother Laura. Eric was told that it order to recover that money, he and his brothers would have to file a petition for formal probate of Laura's estate. Eric did so in Middlesex Probate and Family Court, in April 2015. That court docketed the proceeding as Case No. MI15P2142EA. Eric testified without objection that Case No. MI15P2142EA concerned only the disposition of the $200,000 held by the State Treasurer, and not who owned 27 Walnut Street or who had the right to sell that property.

17. In May 2015, attorney Donald Kupperstein contacted Eric about 27 Walnut Street. Attorney Kupperstein said he was interested in buying 27 Walnut Street as a gift for his grandson. Eric rejected attorney Kupperstein's offer.

18. In June 2015, the Middlesex Probate and Family Court issued Eric "Letters of Authority for Personal Representative." No party offered evidence at the trial in this proceeding as to the contents of those letters.

19. On November 21, 2016, attorney Kupperstein appeared as attorney for Mr. Belcher in the Tax Lien Case. Attorney Kupperstein also submitted to this Court a "Notice of Redemption." Attorney Kupperstein attached to the Notice a copy of a letter that he purportedly had delivered three days before to the City's Chief Financial Officer and Treasurer. The letter purported to memorialize an agreement between Belcher and the City, one that would allow Belcher to pay 27 Walnut Street's back taxes and redeem the property for Belcher.

20. On November 29, 2016, the City moved in the Tax Lien Case to strike Mr. Belcher's notice of redemption, on the grounds that Belcher had no legal interest in 27 Walnut Street.

21. On December 9, 2016, attorney Kupperstein filed in the Tax Lien Case on Mr. Belcher's behalf an opposition to the City's motion to strike Belcher's notice of redemption. In the opposition, attorney Kupperstein represented that Belcher had dismissed the Suffolk Superior Court action (see ¶ 15 above) "upon defendant Berkowitz's promise that Belcher could redeem the property."

22. On December 15, 2016, the City and attorney Kupperstein appeared for a hearing in the Tax Lien Case on the City's motion to strike Mr. Belcher's notice of redemption. After hearing the parties, the Court allowed the City's motion.

23. Trustee Braxton filed in this action an Affidavit of Robert Belcher (the "Belcher Affidavit"). Mr. Belcher states in the Affidavit that on December 21, 2016, he went to the Suffolk Registry of Deeds with the Belcher Deed, described on page 2 of this Decision, in hand.

24. In the top left-hand corner of the first page the Belcher Deed reads:

Return to:

Donald C. Kupperstein, Esq

704 Foundry Street

South Easton, MA 02375

25. The Belcher Deed then recites:

I, Eric N. Berkowitz, of Amherst, Massachusetts, for no or nominal consideration, GRANT to Robert Belcher . . . all of my right, title and interest, if any, in and to the land with the building thereon known as and located at 27 Walnut Street. . . . The purpose of this deed is to allow said Grantee to redeem said property.

The Deed later says: "See also Middlesex Probate Court MI15P2142EA re Estate of Laura Berkowitz. Letters of Authority for Personal Representative issued to Eric N. Berkowitz on June 19, 2015." And at the bottom of the Deed's first page, it says: "Witness my hand and seal this ____ day of December, 2016." Below that line is the purported signature of Eric N. Berkowitz.

26. A notary's acknowledgment appears on the second page of the Belcher Deed. It begins "COMMONWEALTH OF MASSACHUSETTS." The next line of the acknowledgment refers to a county, in this form: "HAMPSHIRE, SS" (both "S" letters capitalized). On the same line, this appears: "December , 2016". Below that line the acknowledgment reads: "On this ____ day of December, 2016, before me, the undersigned notary public, personally appeared Eric N. Berkowitz who proved to me through satisfactory evidence to be the person whose name is signed on the preceding or attached document, and acknowledged to me that he signed it voluntarily for the stated purpose." Below that is the purported signature of notary Amy E. Fyden, who also purportedly hand-wrote her name and the date that her notarial commission expires. To the left of her purported signature is her purported notarial seal.

27. The Belcher Affidavit states that when Mr. Belcher presented the Belcher Deed to the "registry counter clerk," the clerk told Belcher that the deed "could not be for no cash value." The Belcher Affidavit states that the clerk told Belcher "to write in that it was for a dollar." Belcher thus scratched out the word "no" on the deed (where it appears in the phrase "no or nominal consideration") and wrote above that word "1 Dollar &".

28. The Belcher Affidavit also states: "I could see that the deed didn't say what day it was signed and notarized, and so I filled in the 21st." Belcher then recorded the Belcher Deed.

29. The next day, December 22, 2016, attorney Kupperstein filed in the Tax Lien Case, on behalf of Mr. Belcher, a Tax Lien Answer. The answer stated: "Defendant Robert Belcher answers and says that he is the owner of an interest (See Attached Deed) of the premises described in the complaint and claims the right to redeem." Attorney Kupperstein attached to the answer an as-recorded copy of the Belcher Deed.

30. In January 2017, an attorney for the City of Boston reached Eric and sent him a copy of the Belcher Deed. Berkowitz testified truthfully at the trial in this proceeding that he had never seen the Belcher Deed prior to that January day, that he had never signed the Belcher Deed, and that he had never authorized anyone to sign the Belcher Deed. The signature on the deed, however, "appeared" to be Eric's. Eric provided the foregoing or similar information to the City's attorney in January 2017.

31. On January 13, 2017, the City moved in the Tax Lien Case to withdraw its complaint to foreclose on Carl's rights of redemption. The Court granted the City's motion on February 8, 2017.

32. In February 2017, Eric's attorney, Stephen M. LaRose, contacted Ms. Fyden, the purported notary on the Belcher Deed. Fyden worked at that time for the UMass Five College Federal Credit Union, and she still works there. Fyden has been a notary public since 1999, and has worked for the Credit Union since 2015. Since joining the Credit Union, she has provided notary services only to the Credit Union's customers.

33. Attorney LaRose told Ms. Fyden that Eric questioned the Belcher Deed. Attorney LaRose sent Fyden the deed. Fyden did not remember the document. But long before 2016, Fyden had decided to record all of her notarization transactions, in chronological order, in a notarial log book. Fyden checked two log books in which she had tracked her notarizations during December 2016 (one for the period February 24, 2016 through December 22, 2016, and the other for the period from December 30, 2016 to the present). Her logs showed two transactions on December 19, 2016, followed by one transaction on December 22, 2016. None of those transactions involved Eric.

34. The Credit Union maintains a separate electronic log of the services it provides to customers at the Credit Union's offices. That log tracks the date and time of service; the customer's name; the service provided to the customer (including notarial services); the amount of time the customer waited; the amount of time it took to help the customer, the name of the Credit Union employee who provided the service; and whether the Credit Union had completed the requested service. Eric does not appear on the Credit Union's service log for December 21, 2016. While Ms. Fyden's name appears on the log for that date, it does not show that she provided notarial services that day.

35. Ms. Fyden checked her two log books to see if she had notarized Eric's signature at any time after February 24, 2016. Her log showed that in October 2016, she had notarized Eric's signature on a revolving credit mortgage. That mortgage was recorded at the Hampshire County Registry of Deeds on October 19, 2016 in Book 12441, page 155. The document recorded in Book 12441 at page 164 contains Eric's signature, Fyden's signature, her handwritten printed name, her handwritten date as to when her commission expires, and her notarial stamp.

36. Ms. Fyden brought to trial the two log books described in ¶ 33 above. The only entry pertaining to Eric's signature is for the transaction described in ¶ 35 above.

37. Ms. Fyden testified at trial that the signature on the Belcher Deed appeared to be hers, but she never would have left blank the date on which she had notarized a document. (Recall that Mr. Belcher claimed in his Affidavit that the notary had left the date on the Belcher Deed blank.)

38. On January 14, 2017 (or, according to Trustee Braxton, "possibly before that"), Mr. Belcher conveyed to Trustee Braxton, by deed, Belcher's interest in 27 Walnut Street. Trustee Braxton recorded that deed with the Suffolk County Registry of Deeds in Book 57450, Page 216 (the "Braxton Deed").

39. The Braxton Deed has the identical "Return to:" information as the Belcher Deed. It is in the same font as the Belcher Deed. It contains an acknowledgment that, like the Belcher Deed, identifies the county (in the Braxton Deed, the county is Suffolk) followed by "SS". Like the Belcher Deed, in the same line as "SUFFOLK, SS" (both letters "S" capitalized), there appears "January , 2017," although someone later filled in the blank with a handwritten "14th". The language of the acknowledgment in the Braxton Deed is similar to that in the Belcher Deed.

40. The Braxton Deed states that the Trustee's consideration for 27 Walnut Street was $10.00. Trustee Braxton testified at trial, however, that the actual consideration was $30,000. She further testified that she became trustee of the Twenty Seven Walnut Street Realty Trust at the request of a fellow congregant at her church, Eric Mencey. Trustee Braxton testified that Mr. Mencey paid $30,000 for 27 Walnut Street. Trustee Braxton claimed that she and Mr. Belcher did not receive that money, however. Trustee Braxton claimed not to know who did.

41. Ms. Braxton signed an undated Declaration of Trust, which is Trial Exhibit 20. Her signature twice appears in the Declaration as "settlor" of the Trust, once in the Declaration and a second time on a Schedule of Beneficial Interest. In the Schedule, Ms. Braxton declared that the "Twenty Seven Walnut Street Business Trust" held 100% of the beneficial interests in the Twenty Seven Walnut Street Realty Trust.

42. The Declaration contains a notary's acknowledgment. The first line of the acknowledgment reads "COMMONWEALTH OF MASSACHUSETTS." Below that the acknowledgment refers to a county in this form: "SUFFOLK, SS" (both "S" letters capitalized). On the same line as the county, the acknowledgment reads "January , 2017". The acknowledgment then says: "On this …… day of January, 2017, before me, the undersigned notary public, personally appeared Zarina Braxton, who proved to me through satisfactory evidence, which was her driver's license, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that she signed it voluntarily for the stated purpose." The person who notarized Trustee Braxton's signature on the Declaration is attorney Kupperstein, as evidenced by his embossed notary stamp on the original Declaration.

* * *

Based on the facts found after trial, the Court holds that Trustee Braxton doesn't own 27 Walnut Street. Even if she did, she has failed to prove that the prior owners of 27 Walnut Street acquired an easement by prescription across the City's Parcel.

Trustee Braxton's title to 27 Walnut Street depends on the Belcher Deed. That Deed is a forgery. Eric N. Berkowitz never signed the Deed, and he didn't authorize anyone else to sign the Deed. Eric had no intention to sell 27 Walnut Street (or whatever interest he had in 27 Walnut Street) to Robert Belcher in December 2016, or at any other time. Amy Fyden never notarized Eric's signature (or anyone else's signature) on the Belcher Deed. Eric and Ms. Fyden's testimony provides clear and convincing proof that the Deed was forged, and that testimony overcomes the presumption of validity that the law associates with (purportedly) notarized documents. See Keville, 42 Mass. App. Ct. at 157-58 & n. 23.

There are few reported Massachusetts cases that discuss forged deeds. The City directs the Court's attention to Whittenberger v. Commercial Credit Corp., 37 Mass. App. Ct. 303 (1994), where someone forged a deed purportedly conveying a property from Dr. and Ms. Whittenberger to their son Peter, who then mortgaged the premises to Commercial Credit Corporation. Commercial Credit made its loan knowing nothing of the forgery. Dr. Whittenberger (his wife now deceased) sued to quiet title and get his property back. This Court (Sullivan, J.) declared that the forged deed granted Peter nothing, and thus Commercial Credit's mortgage encumbered nothing. The Appeals Court affirmed this Court's decision.

While the result in Whittenberger favors the City's position – that the Belcher Deed gave nothing to Mr. Belcher, and thus Belcher's deed to Trustee Braxton gave her nothing – Whittenberger involved registered land, and not recorded land. (27 Walnut Place is recorded land.) Whittenberger turns on G.L. c. 185, § 62, a statute that dictates what happens when someone "procure[s] by presentation . . . of a forged deed" a subsequent certificate of title for registered land that reflects the dubious transaction: the "subsequent registration . . . shall be null and void." The Appeals Court's Whittenberger decision doesn't discuss Massachusetts common law as it pertains to forged deeds, or whether they pass any interest in the (recorded) land that's the subject of the deed.

But there's another Whittenberger decision, that of Judge Sullivan. See Whittenberger v. Commercial Credit Corp., 1 LCR 38 (1993). Judge Sullivan took the opportunity to review the state of the common law as it pertained to forged deeds, although she too, recognizing that the Whittenberger parcel was registered land, held that c. 185, § 62 controlled the outcome:

Historically, real estate, the title to which had not been registered and confirmed in the Land Court, was subject to the general rule that a forged deed was void and passed no title. Interestingly enough it is difficult to find a Massachusetts case that so states unequivocally, but statements to this effect can be found in Breed v. Gardner, 187 Mass. 300 (1905); Freitas v. Freitas, 349 Mass. 276 (1965); and Strother v. Shain, 322 Mass. 435 (1948).

Whittenberger, 1 LCR at 38. This Court reiterated the general rule in Hobson v. Hobson, 16 LCR 104 , 108 (2008) (Trombley, J.), but in the end the Court's observations about forgeries was dicta, as the disputed Hobson deed wasn't a forgery. Citing Judge Sullivan's decision in Whittenberger, this Court (Piper, J.) held in Countrywide Home Loans, Inc. v. Bruce, 19 LCR 207 (2011), that a forged discharge of a mortgage was void, but it appears that this Court hasn't yet rejected someone's claim to title on the grounds that it stemmed from a forged deed.

Trustee Braxton argues that a forged deed isn't "void," conveying nothing; instead, she claims that a forged deed is only "voidable." She contends that her Trust bought 27 Walnut Street for valuable consideration ($30,000, she now claims) and without knowledge that her husband had received title to 27 Walnut Street via a forged deed. Trustee Braxton claims that she thus owns 27 Walnut Street as a bona-fide purchaser for value. She also points to several cases which, she contends, are contrary to Judge Sullivan's description of the common-law rule.

None of Trustee Braxton's cases contradicts Judge Sullivan. In the Trustee's first case, Somes v. Brewer, 19 Mass. (2 Pick.) 184 (1824), the underlying problem wasn't a forged deed: instead, plaintiff John Somes admitted that he had signed two deeds, but he claimed that his grantee, Somes's guardian William S. Skinner, had tricked him into doing so. Before Somes discovered the fraud, Skinner had recorded both deeds and later sold the two lots to an unsuspecting third party. The Somes Court held that the third party lawfully could rely on Somes's authentic signatures on Skinner's two recorded deeds and keep the two lots. See id. at 202-03. Somes distinguished its case from "[t]he case of a forged deed set up as the basis of title, or the deed of an unlettered person to whom it was not read or was read wrong by fraud," cases that the court acknowledged

may be different in principle from the case we have been considering. . . . But the man who voluntarily signs and seals a deed, knowing its contents, though cheated into the act, may choose nevertheless to let the deed stand; and if he does until an honest purchaser, confiding in his act, and who is never apprized by him of any defect, pays his price and enters into possession, all the principles of justice forbid him from avoiding the title.

Id. at 203 (footnote omitted). To the same effect are three other cases Trustee Braxton cites, Dodd v. Cook, 77 Mass. (11 Gray) 495 (1858); Richardson v. Lee Realty Corporation, 364 Mass. 632 (1974); and Giuffre v. Deutsche Bank Nat. Trust Co., 759 F.3d 134 (2014) (1st Cir. 2014), all of which involved documents actually signed by people who had actual authority to sign them. Trustee Braxton also points to Bevilacqua v. Rodriguez, 460 Mass. 762 , 777 n. 11 (2011), but there the Court merely observes that bona-fide purchasers may acquire a grantor's "voidable" title. Bevilacqua states elsewhere that if a grantor purports to hold title as a result of a "void" transaction, "it is a nullity," one that means "that title never left possession of the original owner. . . ." Id. at 778.

At bottom, Trustee Braxton's position is that bona-fide purchasers should be able to gain good title from any transaction recorded at a registry of deeds. It's true that property-recording systems and bona-fide-purchaser rules serve the public interest in making property more freely marketable, and thereby "facilitate the transfer of resources from less to more valuable uses. . . ." Richard A. Posner, Economic Analysis of Law 67 (3d ed. 1986). But a property "acquired" through forgery is the same as a stolen good, and there's no public policy that favors "an efficient market in stolen goods." Id. at 71 (footnote omitted). This Court thus will apply here what previously had been only a longstanding assumption in Massachusetts common law, and hold that a transaction involving a forged deed is void from the start, and passes nothing to the deed's grantee.

Since Robert Belcher acquired nothing through the Belcher Deed, Trustee Braxton got nothing via the Braxton Deed. But even if Belcher's title were merely "voidable," instead of "void," this Court would still hold that Trustee Braxton got nothing. That's because when a court is determining whether someone should benefit from the bona-fide-purchaser rule, the law imputes the knowledge of a purchaser's agent (if the purchaser has one) to the purchaser herself. See Flynn v. Wallace, 359 Mass. 711 , 717-18 (1971). Attorney Kupperstein was Trustee Braxton's agent at the time she took "title" from her husband Robert Belcher. Attorney Kupperstein knew at the time of that transaction that the Belcher Deed was a forgery. The Court reaches this conclusion based on:

* attorney Kupperstein's efforts in 2015 to purchase 27 Walnut Street (an effort that included false or misleading representations to Eric that attorney Kupperstein was acting on his grandson's behalf);

* attorney Kupperstein's knowledge that, as of May 2015, Eric wasn't interested in selling the property;

* attorney Kupperstein's representation of Robert Belcher in the Tax Lien Case in the months immediately preceding the recording of the Belcher Deed;

* attorney Kupperstein's drafting of the letter, sent to the City Treasurer, claiming falsely that Belcher and the City had reached agreement on the payment of back taxes for 27 Walnut Street;

* attorney Kupperstein's knowledge six days before the recording of the Belcher Deed that the letter to the Treasurer hadn't worked, and that Belcher wouldn't be able to join the Tax Lien Case as a legitimate party in interest, and resolve the case to his satisfaction, without proof that he owned an interest in 27 Walnut Street;

* attorney Kupperstein's apparent drafting of the Belcher Deed (suggested by the "Return to:" address on the Deed, and the similarities between the acknowledgment on the Belcher Deed and the acknowledgments on Trustee Braxton's Declaration of Trust (which attorney Kupperstein notarized) and the Braxton Deed);

* attorney Kupperstein's filing of the Belcher Deed, in the Tax Lien Case, the day after Belcher managed to get it recorded;

* the failure to put into evidence in this proceeding the original Belcher Deed (which either Belcher kept after his visit to the Registry, or which the Registry or Belcher "returned to" attorney Kupperstein following recording); and

* attorney Kupperstein's simultaneous representation of Belcher and Trustee Braxton at the time Trustee Braxton took "title" from Belcher.

So judgment must enter in favor of the City on Trustee Braxton's complaint, on account of her lack of standing. Even if she had standing to assert a prescriptive-easement claim as owner of 27 Walnut Street, the Court holds that her claims in this case fail, for two reasons. First, Trustee Braxton has proven open, notorious, continuous and adverse use of the City's Parcel for only the eighteen-year period during which March Iron operated from 27 Walnut Street. Eighteen years is two years short of the minimum needed to show acquisition of an easement by prescription. See G.L. c. 187, § 2; Denardo v. Stanton, 74 Mass. App. Ct. 358 , 363 (2009). Trustee Braxton provided no evidence concerning the frequency of use of the City's Parcel prior to March Iron's lease of the site, except for testimony that March Iron operated on a larger scale than Carl had. The implication of this testimony is that Carl used the City's Parcel less frequently for access than March Iron did, and since Trustee Braxton is relying on Carl's use of the City's Parcel to get her across the twenty-year goal line, she needs to establish the extent of Carl's use by "clear proof." Boothroyd v. Bogartz, 68 Mass. App. Ct. 40 , 43-44 (2007). That she did not do.

Trustee Braxton has a second failure of proof with respect to the period of Carl's use of the City's Parcel: she offered no evidence that Carl's use was adverse. She proved that March Iron used the City's Parcel without permission (William DiNardo having tried, but failed, to contact the parcel's owners, and using the parcel anyway), but she offered no proof that Carl used the City's Parcel without the permission of its pre-1994 owner. If any of the elements of adverse possession "is left in doubt, the claimant cannot prevail." Mendonca v. Cities Serv. Oil Co., 354 Mass. 323 , 326 (1968); see also Boothroyd, 68 Mass. App. Ct at 43-44.

Judge Sullivan noted in Whittenberger that the execution of a forged deed is a criminal offense under G.L. c. 267, §§ 1 and 5. That's still the case, and as Judge Sullivan did in Whittenberger, the Court will notify the district attorney of this decision. The Court also will notify the Board of Bar Overseers. That leaves the forged Belcher Deed and the Braxton Deed. Both deeds are on record; they are misleading to anyone who doesn't know about this proceeding. The Court will thus direct the Recorder to send to the Registrar of the Suffolk County Registry of Deeds a certified copy of the judgment in this case, so that it may be recorded and marginally referenced on the Belcher and Braxton Deeds.

Judgment shall enter accordingly.