REG 95-43123

January 19, 2018

Barnstable, ss.



The discrete issue before the court on this motion for summary judgment is whether the requisite twenty-year period for establishing title by adverse possession, asserted by the respondent, was interrupted by the filing of the petition in the present action. Airline Mobile Home Park Corp. commenced this confirmation action pursuant to G. L. c. 185, § 26A, on May 1, 1995. [Note 1] The respondent, Kent M. Sargent ("Sargent"), the owner of an abutting property and the only remaining objecting party, claims adverse possession of a portion of the land for which the Petitioner seeks to confirm title, based on adverse possession commencing approximately ten years before the commencement of the present action, and continuing to the present.

Sargent filed an answer on February 24, 2006, asserting his adverse possession claim. The court (Lombardi, J.) issued an order denying the Petitioner's motion to strike Sargent's answer on July 6, 2007. Following an unsuccessful attempt to mediate the case in 2008, the case lay fallow for the next eight years. Petitioner has now moved for summary judgment on Sargent's claim of adverse possession, on the grounds that, based on the undisputed facts, Sargent cannot establish the requisite twenty-year period of adverse use.

Based on the undisputed facts in the record, and for the reasons stated below, the court finds and rules that the Petitioner is entitled to summary judgment dismissing Sargent's claim of adverse possession.


The undisputed facts established in the record and pertinent to the Petitioner's Motion for Summary Judgment, including relevant procedural history of this action, are as follows:

1. Original Petitioner Airline Mobile Home Park Corp. commenced this confirmation action pursuant to G. L. c. 185, § 26A, on May 1, 1995.

2. The land for which MHC, as substitute Petitioner, seeks to confirm its title is land in Dennis, with frontage on Old Chatham Road. ("Locus")

3. The court issued a citation for publication of notice of the petition for confirmation on April 24, 1997, and an attested copy of the citation was posted on the Locus on April 30, 1997.

4. Sargent and his then-wife Susan J. Soares ("Soares") purchased land on Old Chatham Road in Dennis, ("Sargent Property") abutting a portion of the Locus, on January 6, 1986, by a deed recorded with the Barnstable Registry of Deeds ("Registry") in Book 4880, Page 003.

5. By a deed dated January 30, 1998, and recorded with the Registry on March 3, 1998 in Book 11281, Page 220, Sargent and Soares conveyed the Sargent Property to Sargent.

6. Following a dispute concerning whether Sargent and Soares had been properly served with notice of the petition, special notice was sent to Sargent and Soares, returnable February 27, 2006.

7. Sargent filed an answer on February 24, 2006, claiming title to a portion of the Locus by reason of adverse possession. The court (Lombardi, J.) issued an order denying the petitioner's motion to strike Sargent's answer on July 6, 2007.

8. Sargent's claim of adverse possession is based on acts of adverse possession commencing no earlier than 1985, after he entered into a purchase and sale agreement for the purchase of the Sargent Property. He does not allege the benefit of any acts of adverse possession by any previous owner of the Sargent Property. His claimed acts of adverse possession commencing in 1985 include staking a perimeter around the property he intended to purchase, but which included a portion of the Locus; planting trees to be sold as Christmas trees; clearing land; posting "No Trespassing" signs; clearing footpaths; cutting firewood; allowing hunters to use the property; allowing use by recreational vehicles; and informing others that the land was his. This activity is claimed to have been continuous to the present since commencement in 1985.


Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Boazova v. Safety Ins. Co., 462 Mass. 346 , 347 (2012); Mass. R. Civ. P. 56 (c). "The party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue, even if he would have no burden on an issue if the case were to go to trial." Pederson v. Time, Inc., 404 Mass. 14 , 17 (1989). The substantive law at issue in the case determines whether a fact is material. See Carey v. New England Organ Bank, 446 Mass. 270 , 278 (2006). Material facts bear on the outcome of the case. See Jupin v. Kask, 447 Mass. 141 , 145-146 (2006). Bare assertions and conclusions regarding a party's understandings, beliefs and assumptions are not sufficient to withstand a well-pleaded motion for summary judgment. See Key Capital Corp. v. M & S Liquidating Corp., 27 Mass. App. Ct. 721 , 728 (1989). Once the moving party establishes the absence of a triable issue, the nonmoving party must respond and offer evidence of specific facts establishing the existence of a genuine issue of material fact in order to defeat the motion. Pederson v. Time, Inc., supra, 404 Mass. at 17.

"[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case. To be successful, a moving party need not submit affirmative evidence to negate one or more elements of the other party's claim." Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 716 (1991). "The motion must be supported by one or more of the materials listed in rule 56 (c) and, although that supporting material need not negate, that is, disprove, an essential element of the claim of the party on whom the burden of proof at trial will rest, it must demonstrate that proof of that element at trial is unlikely to be forthcoming." Id. at 714.


"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), and cases cited. "The burden of proving adverse possession is on the person claiming title thereby and 'extends to all of the necessary elements of such possession.'" Lawrence v. Concord, 439 Mass. 416 , 421 (2003), quoting Mendonca v. Cities Serv. Oil Co. of Pa., 354 Mass. 323 , 326 (1968). The "necessary elements of such possession . . . include[] the obligation to show that it was actual, open, continuous, and under a claim of right or title." Mendonca v. Cities Serv. Oil Co. of Pa., supra, 354 Mass. at 326, quoting Holmes v. Johnson, 324 Mass. 450 , 453 (1949). "If any of the elements remains unproven or left in doubt, the claimant cannot prevail." Sea Pines Condominium III Ass'n v. Steffens, 61 Mass. App. Ct. 838 , 847 (2004). "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).

For the purposes of the present motion, the only element of Sargent's claim of adverse possession that is in dispute is whether his occupation and use of the claimed portion of the Locus was for twenty years. It is not disputed that Sargent's activities on the portion of the Locus claimed, commencing in 1985, were nonpermissive, actual, open, notorious, exclusive and adverse. Also not in dispute is the continuous nature of those adverse activities from the time they were commenced in 1985. However, the effect of the filing of the present action on Sargent's adverse use is in dispute. The present action was filed in 1995, ten years after the commencement of the adverse use, and the action has remained pending for the last twenty-three years. [Note 2]

"In Massachusetts, the filing of a petition to register title to land or a complaint to establish title to land immediately interrupts adverse possession of that land." Pugatch v. Stoloff, 41 Mass. App. Ct. 536 , 542 n.8 (1996). There are two provisos to this rule, which I find are not operative under the present facts. In McMullen v. Porch, the Supreme Judicial Court held in a case of first impression that the purposes of G. L. c. 185 (then called the "Land Court Act") would be "best served by making the decree relate back to the date of the petition," with the result that "the adverse possession of the respondent was interrupted by the filing of the petition for registration of title, and for that reason no title thereby was acquired." 286 Mass. 383 , 388-389 (1934). Elaborating on the McMullen holding, the Appeals Court in Snow v. E. L. Dauphinais, Inc., noted that in registration cases, as with writs of entry, "adverse possession was interrupted as of the date of the writ, provided that the plaintiff ultimately prevailed . . . ." 13 Mass. App. Ct. 330 , 336 (1982). Therefore, adverse possession is interrupted as of the date of the petition, with the stated proviso (as to which, see below) that the petitioner for registration (or confirmation) must ultimately be successful in establishing title sufficient for registration or confirmation.

The second proviso to the rule that adverse possession is interrupted as of the date of the petition, stems from the justification for making the date of filing the operative date instead of the date of notification of the respondent. The Snow court reasoned that the date of the filing of the petition is the crucial date because that is the record owner's signal that he or she is no longer acquiescing in the adverse possession, and is asserting his or her title. It is this action of the record owner that is significant, and not the adverse possessor's knowledge that the record owner is asserting his or her ownership. The "lack of notice to the adverse possessor would be material only to the extent it reflected whether the owner truly intended to assert his rights." Id. at 336-337. Notwithstanding the disputed facts regarding whether Sargent (and Soares) had actual notice of the present action in 1997, or not until 2006, and despite the meandering and inconsistent progress of the present action, the record reflects no such lack of intent on the part of the Petitioner or substitute Petitioner to pursue their claims from the inception of this action through the date in 2006 when Sargent agrees he received actual notice. The docket reflects the steady progress of this case from the filing of the petition in 1995 through 2006, with several other respondents filing appearances and answers, motion practice, settlement negotiations supervised by the court, defaults entered against some respondents, and significant activity taking place in every year (except 2002) from 1995 through 2006. This record discloses no lack of intention on the part of the Petitioner or substitute Petitioner to advance their claims during this period. Accordingly, it is appropriate to utilize the rule providing that any period of adverse possession by Sargent was interrupted as of the date of the filing of the petition in 1995.

The other proviso to the rule requiring interruption of the adverse possession as of the date of the filing of the petition, is that the petitioner must ultimately be successful. Were the petition completely and on its face lacking in merit, the court would be justified in finding, at this juncture, that the period of adverse possession was not interrupted by the filing of the petition, because the petition could be determined to have no likelihood of success. In re Buttrick, 185 Mass. 107 , 111 (1904) (In partition action, adverse possession interrupted by filing of writ, "[b]ut when it appears, as it does upon the proof in this case, that the suit cannot be maintained, and that the tenant must ultimately prevail, no such effect can be given to the bringing of a writ of entry"). The court is unable to make any such assessment of the merit or lack of merit of the Petitioner's case at this stage of the case, and the respondent has not offered any argument or evidence that the petition is so completely lacking in merit as to warrant such a conclusion.

Given the unusual nature of the proviso that might revive his claim if the Petitioner is not successful on the merits, in effect a condition subsequent, Sargent has argued that even if his adverse possession claim is dismissed conditionally, he should be permitted to remain active in the case as a respondent and party in interest. However, the court notes that Sargent's answer to the petition asserts no basis for his objection to confirmation of the Petitioner's title other than his adverse possession claim. That claim having been dismissed because of the failure to adversely possess the disputed property for the requisite twenty years, there is no other basis for him to remain in the case as a party in interest. He no longer has a direct claim against the Petitioner's interest in the Locus, other than the possibility of a revived adverse possession claim if the Petitioner is unsuccessful. That is too indirect a claim, and is one that is not supported by his answer to the petition.


Accordingly, based on the undisputed material facts, the court finds and rules that the period of adverse possession claimed by Sargent was interrupted by the filing of the petition in this action in 1995, which was prior to the running of the required twenty-year period of adverse possession. The substitute Petitioner's motion for summary judgment dismissing the respondent Kent M. Sargent's answer and objection to the petition in this action is ALLOWED, and the respondent's claims are accordingly dismissed, without prejudice to refile such claims if the petition for confirmation of title to that portion of the Locus claimed by respondent is denied.


[Note 1] Airline Mobile Home Park Corp. conveyed the Locus to Old Chatham Road RV Resort, LLC on December 31, 2002; Old Chatham Road RV Resort, LLC conveyed the Locus to MHC Old Chatham, LLC ("MHC") by deed dated August 29, 2005. A motion to substitute MHC as the substitute Petitioner was allowed on October 26, 2006.

[Note 2] A period of more than eight years, from September, 2008, to December, 2016, with no activity, provides a partial explanation for the almost Bleak House-like twenty-three year pendency of this action, the commencement of which pre-dated the implementation of the Land Court's time standards. See, Land Court Standing Order 1-04, Time Standards for Cases Filed in the Land Court Department.