MISC 18-000063

May 9, 2018

Middlesex, ss.



On March 19, 2018, defendant Scott Kenworthy moved under Rule 12(b)(6), Mass.R.Civ.P., for dismissal of this lawsuit. The plaintiff who brought the action, Sahin Kaya, claims that he has obtained by adverse possession a fee interest in a portion of Kenworthy's property. Kenworthy has presented several arguments as to why this lawsuit shouldn't go forward. Kaya filed a written opposition to Kenworthy's motion on April 30, 2018, and the Court heard arguments from the parties today.

In light of the claims set forth in Mr. Kaya's Complaint, the parties' memorandums of law, and the arguments of counsel, the Court GRANTS Mr. Kenworthy's motion, but only for two reasons:

1. The elements of a claim for adverse possession include the requirement that the plaintiff prove that he or she used the disputed area exclusively – that is, to the exclusion of the area's rightful owner – for a continuous period in excess of twenty years. See, for example, Ryan v. Stavros, 348 Mass. 251 , 262 (1964). And in order to present a claim for adverse possession (or any other claim, for that matter), one must set forth in one's complaint "factual 'allegations plausibly suggesting (not merely consistent with)' an entitlement to relief. . . ." Iannacchino v. Ford Motor Co., 451 Mass. 626 , 636 (2008), quoting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007). Mr. Kaya's Complaint contains no allegations whatsoever that he or his predecessors in interest used the disputed area in this case to the exclusion of Mr. Kenworthy or anyone else. (The Court mentions Kaya's "predecessors in interest" because he concedes in his Complaint that he has owned his property for less than twenty years, and relies on the conduct of his predecessors in title in order to claim adverse possession.)

2. Kaya claims that the Kenworthy fence is damaging Kaya's property at 117 Penny Road. Kaya's counsel presented a picture at today's hearing that showed the (alleged) Kenworthy fence leaning against Kaya's home, a casualty of winter storms. This Court has jurisdiction over trespass and nuisance actions only if they are ancillary to a dispute over the parties' right, title and interest in land. See Kubic v. Audette, 18 LCR 486 , 487 (2010) (Cutler, J.). At the moment, the Complaint contains no allegations of a dispute with respect to the boundary between the parties' deeded parcels, the Court having dismissed the centerpiece of Kaya's Complaint, his claims of adverse possession. The Court asked Kaya's counsel if there is a dispute concerning the record boundary between the parties' properties; Kaya's counsel didn't know the answer to that question. The Court thus will DISMISS Kaya's trespass claims without prejudice, for lack of subject-matter jurisdiction.

The Court told the parties at today's hearing that it also accepted Mr. Kenworthy's argument that Mr. Kaya's adverse-possession claims were too late, per c. 260, § 28. Upon further review of § 28, the Court has reconsidered its decision and now concludes that § 28 does not apply to this case. Section 28 states:

No person shall be held to have been in possession of land within the meaning of this chapter merely by reason of having made an entry thereon, unless he has continued in open and peaceable possession thereof for one year next after such entry or unless an action has been commenced upon such entry and seisin within one year after he was ousted or dispossessed.

While it's true that, according to Kaya's Complaint, Kenworthy "ousted" Kaya from the disputed area in 2013, the Complaint doesn't allege that Kaya obtained title to the disputed area "merely by reason of having made an entry thereon": Kaya claims title as a result of twenty years of open and notorious use of the disputed area, prior to 2013. Section 28's requirement that an "ousted or dispossessed" owner file suit within one year of an ouster thus doesn't apply to Mr. Kaya.

Judgment to enter accordingly.