CELIA KIRWAN and DOMINIC BURDICK v. DAVID A. SELDIN and CATHRYN A. STEIN.

On prominent display in this case are the advantages afforded to a landowner, and the additional hurdles offered to an adverse claimant, by the strict protections for landowners inherent in our land registration system administered by the Land Court pursuant to G. L. c. 185.

The prior owners of a condominium unit at 17 Segel Street in the Jamaica Plain neighborhood of Boston, Jarvis and Jennifer Lambert (the "Lamberts"), entered into an easement agreement allowing them to park two vehicles on a portion of their next-door neighbors' registered land at 21 Segel Street. The easement agreement was not accepted for filing with the Land Court because it was not properly and fully executed. For unknown reasons, but probably through inadvertence, a corrected, fully-executed document was never registered. On July 12, 2001, the plaintiffs, Dominic Burdick and Celia Kirwan, purchased the Lamberts' unit at 17 Segel Street with the understanding that they were acquiring, along with the condominium unit, an easement for the two parking spaces on the registered land next door at 21 Segel Street, and began parking their vehicles in these two spaces. More than fourteen years later, the defendants, David Seldin and Cathryn Stein, purchased 21 Segel Street, and although they were aware, prior to the closing on their purchase, that Mr. Burdick and Ms. Kirwin were parking on the two spaces, the issue in this case is whether they acquired their property at 21 Segel Street with actual knowledge that Mr. Burdick and Ms. Kirwin had an easement for the parking spaces prior to the closing.

For the reasons that follow, I find and rule that while Mr. Seldin and Ms. Stein became aware of the plaintiffs' use of these two parking spaces prior to closing on the purchase of 21 Segel Street, they made reasonable inquiry regarding that use, and despite that inquiry, they did not have actual knowledge of an executed easement agreement at any time prior to the closing on their purchase of 21 Segel Street, nor were they presented with evidence of a signed easement agreement sufficient to prove that their lack of actual knowledge was due to any willful ignorance on their part.

The plaintiffs filed the present action on August 25, 2017, seeking to amend the certificates of title of both the defendants' and plaintiffs' parcels of land pursuant to G. L. c. 185, § 114, to reflect a parking easement benefitting the plaintiffs' property and burdening the defendants' property and to enjoin the defendants from interfering with the plaintiffs' parking easement. A trial was held before me on November 6, 7, and 13, 2018, at which nine witnesses testified and thirty-six 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 March 11, 2019.

FACTS

Based on the facts stipulated by the parties, the documentary and testimonial evidence admitted at trial, 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:

1. Jeffrey and Clare Turner (the "Turners") purchased the property at 21 Segel Street, in the Jamaica Plain neighborhood of Boston on December 27, 1999. Because the property included both registered and unregistered land, the purchase was accomplished by virtue of two deeds. The first deed was recorded with the Suffolk County Registry of Deeds ("Registry") in Book 24551, Page 301. [Note 1] The second deed was registered with the Suffolk County Registry District of the Land Court on the same day in Book 572, Page 103, as Document No. 593944, and was noted on Certificate of Title No. 115303. [Note 2]

2. The Turners had agreed that their purchase of 21 Segel Street would be subject to an easement for parking on the registered land portion of their property for the benefit of the abutting property at 17 Segel Street. Although the Turners signed an easement agreement, it was not registered at that time. [Note 3]

3. The easement agreement signed by the Turners provided that the owner of the benefitted parcel would have "the exclusive and perpetual right and easement in, over and across that portion of the Burdened Premises shown on the plan annexed hereto as Exhibit 'A' and made a part hereof as '2 Car Parking Easement' for the parking of not more than two (2) passenger motor vehicles (the 'Parking Easement')." [Note 4]

4. The deed registered with the Registry District of the Land Court conveying 21 Segel Street to the Turners provides, in relevant part, that "[t]he premises are conveyed subject to an Agreement and Grant of Easement of even date and filed with the Suffolk Registry District of the Land Court immediately prior hereto as Document No.________." (blank space in original). [Note 5] The deed recorded on the "unregistered" or recorded side of the Registry contains no reference to an easement agreement.

5. The easement agreement prepared in conjunction with the Turners' closing was not signed by all of the necessary parties. As a result, it was rejected for registration by the Land Court. [Note 6] Accordingly, the reference in the registered deed to "an Agreement and Grant of Easement of even date and field with the Suffolk Registry District of the Land Court immediately prior hereto" was a reference to a documents that did not exist as a matter of record, and the reference to a "Document No.________" was also to a document that did not exist as a matter of record.

6. The Turners signed a corrected easement agreement on May 30, 2000 and gave the signed document to the Lamberts, the then-owners of 17 Segel Street, who in turn signed it on October 27, 2000. [Note 7]

7. The corrected, executed easement agreement was, inexplicably, never recorded with the Registry or registered with the Land Court. [Note 8]

8. Like the Turners' property at 21 Segel Street, 17 Segel Street also lies on a parcel that is partly registered land and partly unregistered land. The plaintiffs, Celia Kirwan and Dominic Burdick, purchased 17 Segel Street from the Lamberts by virtue of two quitclaim deeds. The first deed was recorded with the Registry on July 12, 2001 in Book 26663, Page 318. The second deed was registered with the Suffolk County Registry District for the Land Court on the same day in Book 306, Page 2, Document No. 617584, and noted on Certificate of Title No. C306-3. The plaintiffs' property is part of a two-unit condominium established pursuant to G. L. c. 183A, by master deed dated April 6, 1998, recorded with the Registry in Book 22370, Page 139, and registered with the Suffolk County Registry District of the Land Court as Document No. 565248. [Note 9]

9. For approximately the next fourteen years, Mr. Burdick and Ms. Kirwin used the two parking spaces on the Turners' property at 21 Segel Street, although the corrected, fully executed easement agreement necessary to convey the easement was never registered with the Land Court. The signed easement agreement, although unregistered, was of course valid as against the Turners, who had granted it and therefore had actual notice of its existence.

10. In 2015, the Turners put their property at 21 Segel Street up for sale. Mr. Seldin and Ms. Stein attended two open houses at 21 Segel Street on September 12, and 13, 2015. Ms. Kirwan and Mr. Burdick also attended the September 12, 2015 open house where they briefly met Mr. Seldin and Ms. Stein. [Note 10]

11. Mr. Burdick testified that he told the defendants at the September 12, 2015 open house that he and Ms. Kirwan "had an easement," while pointing to the two parking spaces on the corner of 21 Segel Street nearest to 17 Segel Street. Ms. Stein testified to a different recollection of this meeting, stating that Mr. Burdick did not reference an easement, but instead told the defendants, "[w]e park there." I do not credit Mr. Burdick's testimony that he used the term "easement" while referencing the two parking spaces. Instead, I credit Ms. Stein's testimony that Mr. Burdick told them "[w]e park there." [Note 11]

12. On September 15, 2015, the Turners accepted an offer from Mr. Seldin and Ms. Stein to purchase 21 Segel Street and the Turners and Mr. Seldin and Ms. Stein executed a Purchase and Sale Agreement on October 2, 2015. [Note 12]

13. Paragraph 61 of the Purchase and Sale Agreement contains representations concerning parking spaces at 21 Segel Street. Paragraph 61 provides:

"All provisions in this Agreement pertaining to title and possession, specifically, but without implied limitation, those provisions in Paragraphs 4, 9, 45, and 52, shall be deemed to include matters pertaining to the parking of vehicles on the Premises by anyone other than the current record owners of the Premises and their family members. Any other persons parking vehicles on the Premises, unless permitted by an easement filed with the Registry District and recorded with the Registry of Deeds prior to the date of this Agreement, shall be deemed to be within the scope of the term "occupants" as used in Paragraph 9, and the Seller shall have the obligation to deliver the Premises free of such occupants (pursuant to Paragraph 9) and their possessions and automobiles (pursuant to Paragraph 52), unless the Buyer expressly permits such occupants and their automobiles and possessions to remain." [Note 13]

14. As of October 1, 2015, the Turners were aware that a question had arisen with respect to whether a recorded or registered easement existed burdening 21 Segel Street. On that same day, Clare Turner sent an e-mail message to Marc Canner, the attorney representing the Turners in the transaction, attaching an unexecuted copy of the Agreement and Grant of Easement dated January, 2000, along with copies of the Turners' deeds to 21 Segel Street dated December 27, 1999, which omit any document number referencing the easement. [Note 14]

15. Notably, there is no disclosure by Ms. Turner in this e-mail message to her attorney that an executed version of the easement agreement exists, nor did either of the Turners ever make such a disclosure to anyone involved in the sale of their home to Mr. Seldin and Ms. Stein.

16. On October 15, 2015, while Ms. Stein waited for a contractor at 21 Segel Street, she met with Stephen Lussier, the Turners' realtor. I credit Ms. Stein's testimony that Mr. Lussier told her with respect to her question about whether there was any easement for parking burdening the property, "he knew our [the defendants] title search had been completed and that they had nothing further beyond the deed, that there were no papers or information beyond the deed." [Note 15] "… [H]e said everything is in the deed." [Note 16]

17. I find that Paragraph 61 of the Purchase and Sale Agreement is consistent with representations made to the defendants that no easements existed burdening 21 Segel Street other than what "is in the deed."

18. Ms. Turner testified that she recalled there being an issue with parking, but that she believed this issue had to do with cars parked in the Segel Street extension. I do not credit the Turners' testimony that they understood Paragraph 61 to reference parking spaces not on their property, but rather parking spaces in the fifteen-foot passageway adjacent to their property. They are both educated, intelligent, and claim to be careful about the documents they sign, with Mr. Turner testifying that, although blind, he has been using software that helps him review documents since the 1980s. [Note 17] Paragraph 61 explicitly refers to parking "on the Premises" and the fifteen-foot Segel Street extension was not part of the Premises. I do not credit any suggestion by either of the Turners that they thought otherwise.

19. Ms. Turner testified that she gave an executed copy of the easement agreement to Mr. Lussier the morning of the closing to deliver to Attorney Canner. She testified that she found this document in "the file of when we purchased the house" in 1999. I find this testimony to be inconsistent with her prior testimony that she sent Attorney Canner the unexecuted copy of the easement on October 1, 2015, without an explanation as to where she found that document if it was not in the same closing file as the executed easement agreement. [Note 18] Also left unexplained is how she was in possession of a fully executed copy of the easement agreement in her file from the 1999 closing, when she and her husband had executed the document on May 30, 2000, and given it to the Lamberts so that they could sign it as well. There was no testimony that the Lamberts had ever given a fully signed copy back to the Turners, and I find it unlikely that they would have done so given the fact that they apparently did not even take care to have it properly registered. Therefore, I do not credit Ms. Turner's testimony that she found the executed copy of the easement agreement on November 5, 2015.

20. Mr. Lussier inconsistently testified as to the contents of the easement agreement given to him on the morning of the closing. [Note 19] When Mr. Lussier was asked about the easement agreement he reviewed on the morning of the closing, he stated: "I believe it was fully executed, now that I think about it, the second page." Mr. Lussier later retracted this testimony and instead testified that he was not entirely sure of the contents of the easement agreement. He testified that the only page of the easement agreement he read on the morning of the closing was the front page and that he did not recall whether the easement agreement had signatures on it. I do not credit his testimony as to the contents, signatures, or number of pages of the document he picked up from Ms. Turner on the morning of the closing. [Note 20]

21. Attorney Canner similarly offered no credible illumination as to the contents or extent of the documents delivered to him on the morning of the closing. He claimed that because the easement agreement was "an important document" he photographed it with the camera in his cell phone, and "likely" put it in his clients' file. Attorney Canner testified that it is likely that he gave this file to his associate, Joseph O'Sullivan, who attended the closing. However, the only documents Attorney Canner photographed were a cover letter from Peter Samek to Kenneth Hoffman, two attorneys involved in the sale of 21 Segel Street to the Turners back in 1999, and what appears to be the first page of the easement agreement. The cover letter, dated January 4, 2000, informs Mr. Samek, the Turners' attorney, that the easement agreement was not accepted for registration, and will have to be re-executed with the Turners as the grantors. Mr. Hoffman states in the letter, and I so find, that the enclosure was an unexecuted copy that the Turners would have to execute.

22. It is impossible to know whether the remaining pages of the easement agreement were in fact included in the documents delivered to Attorney Canner. [Note 21] Photographing only the unexecuted pages of an "important document" with a cell phone camera, rather than making a proper photocopy of the entire document is hardly the way an attorney in his office treats an "important document." Accordingly, I do not draw the inference from Mr. Canner's testimony that the plaintiffs intend; that is, I do not credit the suggestion that the document he photographed and placed in the file was complete or fully executed, or even that it included a copy of the execution page of the document.

23. Attorney O'Sullivan, Mr. Canner's associate, testified that he has no specific recollection of attending the closing on 21 Segel Street. He testified "[w]ith 100 percent certainty, I cannot say that [he attended the closing], but I think I was there that day;" nor does Attorney O'Sullivan recall seeing the easement agreement prior to the closing date. [Note 22]

24. Attorney O'Sullivan testified that the e-mail message containing Attorney Canner's photographs of the cover page and first page of the easement agreement looked "vaguely familiar," but he did not recall whether he saw this e-mail message in advance of the closing. [Note 23]

25. Attorney O'Sullivan signed a standard title affidavit under a power of attorney for the Turners, representing that there were no outstanding easements other than those of record. This affidavit provides, in relevant part, that,

"2. The Seller(s)/Owner(s) during the time of ownership of the premises above described has/have conveyed no portion of the premises nor done any act or allowed any act to be done which has changed or could change the boundaries of the premises. The Seller(s)/Owner(s) has/have allowed no encroachments on the premises above described by any adjoining land owners nor has/have the undersigned encroached upon any property of adjoining land owners. The Seller(s)/Owner(s) has/have allowed no easements, rights of way, continuous driveway usage, drain sewer, water, gas or oil pipeline or other rights of passage to others over the premises above described and has/have no knowledge of such adverse rights…." [Note 24]

26. Attorney O'Sullivan testified that he did not have any "independent actual knowledge of whether there was an encroachment on 21 Segel" Street prior to signing the standard title affidavit, [Note 25] but that he was able to sign this document "under Marc's [Canner] authority." [Note 26] Attorney Canner testified that he had not reviewed the standard title affidavit with the Turners prior to the closing. [Note 27]

27. The affidavit was signed by Attorney O'Sullivan at the closing in the presence of Mr. Seldin, Ms. Stein, and their attorney. I find that Mr. Seldin, Ms. Stein, and their attorney were entitled to rely on the representations made by Attorney O'Sullivan in the title affidavit, notwithstanding that it was made for the benefit of the their lender's title insurance company. It was a representation of fact made in their presence as to an issue in dispute in this case.

28. I find that the execution of the title affidavit constituted a negligent misrepresentation and the representations made by Mr. Lussier to Ms. Stein in the presence of Mr. Turner constituted either negligent or intentional misrepresentations, and justified the defendants' reasonable determination that they were taking the property free and clear of any parking easements.

29. I find that the document delivered to Attorney Canner consisted only of the two pages he photographed, because if Attorney Canner truly believed the easement agreement was "an important document," he would not have photographed less than the entire document in his possession, and he certainly would not have failed to photograph the execution page.

30. I find that the document produced to Mr. Lussier on the morning of the closing was an incomplete copy of the easement agreement, providing no opportunity for actual notice to the defendants. I further find that whatever the defendants or their attorney were handed on the morning of the closing was insufficient to put them on actual notice of the existence of the executed easement agreement.

31. I find that, contrary to the attempted implication of the testimony of Mr. Lussier and Attorney Canner, there is no credible evidence that the defendants were ever given a complete copy, executed or unexecuted, of the easement agreement at any time prior to or at the closing.

32. To the extent either defendant was put on notice of the possible existence of the easement and had a duty to inquire, I find that they performed a reasonable inquiry by checking the official records, having an attorney do a title search to determine whether an easement existed on the property, and speaking with the plaintiffs, the Turners, their listing agent, and closing attorneys, but were met with negligent or intentional misrepresentations to the effect that there was no easement other than what existed as a matter of record.

33. To the extent the defendants might have been on notice of the possible existence of an unrecorded, but executed and delivered easement agreement, they were effectively disabused of that notion by the failure of the plaintiffs, the Turners, their listing agent, and the Turners' closing attorneys to deliver a complete copy or provide any legitimate documentation of the easement agreement at any time prior to the closing. I note that the Turners did not claim in their testimony ever to have disclosed even verbally the existence of a fully executed easement agreement burdening their property. I further note in connection with this finding that it was in the Turners' interest to obfuscate rather than clarify the status of the easement agreement, because full disclosure of the executed easement agreement, if they had it in their possession, would have risked the completion of the sale of their home or the price Mr. Seldin and Mr. Stein had agreed to pay.

34. The defendants, Catheryn Stein and David Seldin, completed their purchase of 21 Segel Street, Jamaica Plain from the Turners by virtue of two quitclaim deeds. The first deed was recorded with the Suffolk County Registry of Deeds ("Registry") on November 5, 2015 in Book 55283, Page 54. [Note 28] The second deed was registered with the Suffolk County Registry District of the Land Court on that same day in Book 657, Page 163, Document No. 849937, and Certificate of Title No. 132363. The registered deed contains a 7,003 square foot parcel of land depicted on the Land Court Plan attached as Exhibit 1 to Trial Exhibit 32. [Note 29]

35. Neither the Purchase and Sale Agreement for 21 Segel Street, nor the deeds conveying the property from the Turners to Mr. Seldin and Ms. Stein reference the Agreement and Grant of Easement at issue. [Note 30]

DISCUSSION

The parking spaces in dispute in this action are on a portion of 21 Segel Street that is registered land pursuant to G. L. c. 185. It is well-settled that "[e]very plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate." G. L. c. 185, § 46; see Jackson v. Knott, 418 Mass. 704 (1994); Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48 , 51 (2007). The decree of registration "shall set forth the estate of the owner and also, in such manner as to show their relative priority, all particular estates, mortgages, easements, liens, attachments and other encumbrances, including rights of husband or wife, if any, to which the land or the owner's estate is subject…." G. L. c. 185, § 47. "No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land." G. L. c. 185, § 53. The registration provisions of G. L. c. 185 are to be strictly construed, as they "provide a method for making title to land certain, indefeasible, and readily ascertainable." Feinzig v. Ficksman, 42 Mass. App. Ct. 113 , 116 (1997); see also Calci v. Reitano, 66 Mass. App. Ct. 245 , 247 (2006).

Two general exceptions to this rule provide that "[i]f an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: (1) if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser has actual knowledge of a prior unregistered interest." Jackson v. Knott, supra, 418 Mass. at 711; Hickey v. Pathways Ass'n, Inc., 472 Mass. 735 (2015).

It is undisputed between the parties that the first exception in Jackson is inapplicable to the present action. Under this exception, Mr. Seldin and Ms. Stein need only review the certificate of title in order to determine whether a further investigation into the other certificates of title, documents, or plans in the registration system reveal an encumbrance on their property. Jackson v. Knott, supra, 418 Mass. at 711. Here, the easement agreement was never incorporated into the defendants' deed, nor was it registered with the Land Court prior to the closing. [Note 31] Thus, an investigation of the certificate of title registered with the Land Court Registry District would not have provided notice of an easement and as a result, would not have prompted the defendants, as reasonable purchasers "to investigate further other certificates of title, documents, or plans in the registration system." Jackson v. Knott, supra, 418 Mass. at 711; see also Hickey v. Pathways Ass'n, Inc., supra, 472 Mass. 735 ; Commonwealth Elec. Co. v. MacCardell, supra, 66 Mass. App. Ct. 646 ; Killam v. March, 316 Mass. 646 , 651-652 (1944). Even if the unfilled-in blank for "Document No._______" of the easement agreement on the registered deed to the Turners could be construed to place a buyer on notice, nothing in the registration system would have revealed the existence of an easement, and the defendants would have come to the correct conclusion that there was nothing in the registration system constituting such an easement.

The plaintiffs rely instead on the second exception set out in Jackson v. Knott, arguing that the defendants had actual knowledge of the easement agreement reserving two parking spaces on the defendants' property for the plaintiffs, even though the instrument was not registered with the Land Court. "This good faith requirement has been interpreted to mean that a title holder will not be protected by the land registration system if he has 'actual knowledge of a prior unregistered interest.'" Calci v. Reitano, supra, 66 Mass. App. Ct. at 247, quoting Jackson v. Knott, supra, 418 Mass. at 711; see also Feldman v. Souza, 27 Mass. App. Ct. 1142 , 1143 (1989) ("It has been the rule for forty-five years ... that if the purchaser of registered land has notice of the existence of a way over his estate, that person takes the land subject to such an easement, even if it is not mentioned as an encumbrance in the grantor's certificate of title[.]").

The plaintiffs assert that the defendants had actual knowledge of the easement because they were given a copy of the easement agreement on the morning of the closing. The plaintiffs also allege that the Mr. Burdick told the defendants that the plaintiffs had an "easement" over the two parking spaces in dispute at the September 12, 2015 open house (an assertion I have found not to be credible), and the defendants saw the parking spaces being used by the plaintiffs.

Conversely, the defendants argue that none of the recognized exceptions to the foundational principle enunciated in Jackson v. Knott apply under the present facts. In arguing that their property is free of any encumbrances, the defendants assert that they did not have actual knowledge of the easement agreement because they were never given a complete, executed copy of the easement agreement prior to closing and that representations were made to them by interested parties with knowledge of the unregistered easement that nothing further existed in the chain of title beyond what was "in the deed."

In order "to fulfil the actual notice exception to a recorded easement, it is not enough that the holder of registered title know that the land has been used in a certain way that might indicate an easement, because this could be merely a permissive or perhaps adverse use, which specifically does not give right to an easement under G.L. c. 185, § 53 … Rather there must be actual knowledge of prior documents, registered or unregistered, that create an easement over the disputed parcel." Calci v. Reitano, supra, 66 Mass. App. Ct. at 247-250. An unrecorded easement may be upheld in instances where "legitimate documentation… of the easement and the grantee's knowledge of that documentation" are supported by evidence in the record. Id. at 250; Tetrault v. Bruscoe, 398 Mass. 454 , 462 (1986) (mere knowledge and use of an existing roadway without a further legitimate claim would not be enough to affect the plaintiff's registered land). Contrast, Killam v. March, in which the buyers of registered land took subject to a lease of their driveway and garage where they had actual notice of the lease because it was disclosed in their purchase and sale agreement. 316 Mass. 646 , 651-652; Emmons v. White, 58 Mass. App. Ct. 54 (2003) (landowners had actual notice of a settlement agreement referencing an easement where they had intelligible verbal and written information as to its existence); One–O–Six Realty, Inc. v. Quinn, 66 Mass. App. Ct. 149 , 154 (2006) (finding that the defendant landowner had actual knowledge of an unregistered easement over his land after he was advised by his attorney prior to the purchase of the existence of a deed in the chain of title creating the unregistered interest). Moreover, the burden of proving that the defendants had actual knowledge, by a preponderance of the evidence, of a prior unregistered easement (or other interest), is on the party asserting such a claim, in this case the plaintiffs. Commonwealth Elec. Co. v. MacCardell, supra, 66 Mass. App. Ct. 649 ; see Sandwich v. Panciocco, 48 Mass. App. Ct. 556 , 561 (2000).

The court does not agree with the plaintiffs that the defendants had actual knowledge of the unregistered easement agreement between the Lamberts and Turners prior to the closing. First, the plaintiffs failed to establish that a complete and executed copy of the easement agreement was delivered or shown to the defendants or their attorney prior to or at the closing. [Note 32] Mr. Burdick testified that neither he nor his wife gave a copy of the easement agreement to the defendants prior to the closing. [Note 33] While Ms. Turner testified that she gave an executed and complete copy of the easement agreement to Mr. Lussier on the morning of the closing, I have found, that in fact the document she delivered was not a complete or executed copy of the easement. Despite testifying that the document she found on the morning of the closing was executed, Ms. Turner also testified that the document she found was only a two-page document in a file from when she and Mr. Turner closed on this property in 1999. She gave no explanation as to how this document, if it was in fact executed, was in her 1999 closing file, when the easement agreement was not fully executed until October 27, 2000 when it was in the possession of the Lamberts. Mr. Lussier, to whom Ms. Turner claimed to have given the document on the morning of the closing, testified inconsistently, to say the least, with respect to the document's contents and length, including inconsistencies with respect to the number of pages and whether the document contained a signature page. [Note 34] On that same day, this document was transferred to Attorney Canner who initially testified that he had no recollection as to whether he received the fully executed easement agreement from the Turners on the morning of the closing as he did not review the document, [Note 35] but later recalled that he never received the fully executed easement agreement from Mr. Burdick until May 4, 2016, well after the closing. [Note 36] He testified that he took a photograph of the first two pages of the documents given to him with his cell phone camera, and that he "likely" put the document in the closing file. [Note 37] He further testified that he "likely" gave it to Attorney O'Sullivan to bring to the closing, but was unsure. [Note 38] Likewise, Attorney O'Sullivan testified that he did not review the document given to him on the morning of the closing. [Note 39] In fact, he does not recall whether he even attended the closing for 21 Segel Street. [Note 40]

I have found that the above-referenced testimony with respect to the completeness of the document presented to the defendants at the closing on November 5, 2015 was unreliable, incomplete, and not credible. The plaintiffs failed to establish that the defendants received or had actual knowledge of a complete and executed copy of the easement agreement prior to the closing. This is notably different from, for instance, Killam v. March, supra, 316 Mass. 640 , in which the buyers took subject to a lease because there was an acknowledgment of its existence in the purchase and sale agreement. Here, by contrast, I have found that the Turners never forthrightly acknowledged the existence of the easement, and in fact obfuscated when asked about it. Moreover, paragraph 61 of the purchase and sale agreement between the defendants and the Turners essentially contains the Turners' misrepresentation to the defendants that there is no easement burdening the property. This distinguishes the present case from Killam. The present case is also distinguishable from Feldman v. Souza, supra, relied on by the plaintiffs. In Feldman, unlike the present case, the easement in dispute, although not noted on the grantor's certificate of title, was clearly granted in the grantor's registered deed, which is not the case here. Furthermore, the driveway right of way in dispute in Feldman was shown on a registered plan. By contrast, there is nothing in the documents filed in the land registration system disclosing the existence of the easement in the present case.

Second, the defendants inquired into whether an easement existed on 21 Segel Street prior to the closing, and instead of being told that such an easement did in fact exist, they were actively led to believe that nothing further existed in the property's chain of title beyond the deed. [Note 41] For example, after attending the two open houses on September 12 and 13, 2015, Mr. Seldin and Ms. Stein conducted an online search of the Registry, finding only the recorded deed to 21 Segel Street. [Note 42] Attorney Fitzsimmons—who was hired to represent the defendants and their mortgage lender in the purchase of 21 Segel Street—arranged for a title search of the property to determine whether it was encumbered by an easement. [Note 43] Attorney Fitzimmons further inserted paragraph 61 into the Purchase and Sale Agreement, which contained representations that the property would not conform to title requirements if parking spaces were occupied by occupants who did not possess an easement of record. On October 15, 2015, Ms. Stein advised Mr. Lussier and Mr. Turner that the results of Attorney Fitzsimmons' title search conducted on 21 Segel Street did not show that an easement existed on the property. During that same meeting, Mr. Turner remained silent as Mr. Lussier reassured Ms. Stein that "everything's in the deed." [Note 44] Despite Ms. Stein's active inquiry into whether there was any easement burdening the property, neither the plaintiffs nor the Turners showed or provided the defendants with a complete, executed copy of the easement agreement, nor were the defendants given any legitimate documentation of the easement agreement prior to the closing—even though the plaintiffs were well aware of the defendants' questions regarding the two parking spaces. [Note 45] Therefore, to the extent the defendants might have been put on notice of the possible existence of an unregistered but executed and delivered easement agreement, they were effectively disabused of that notion by the failure of the plaintiffs, Mr. Lussier, the Turners or their attorneys to deliver an executed copy or provide any legitimate documentation of the easement agreement at any time prior to the closing, and further by the negligent or intentional misrepresentations by Mr. Lussier, and Mr. Turner's acquiescence in those misrepresentations by his silence, that "everything's in the deed." See Tramontozzi v. D'Amicis, 344 Mass. 514 (1962) ("[k]nowledge of facts which would ordinarily put a party upon inquiry is not enough to establish actual notice[.]").

I have found that the document produced to Mr. Lussier on the morning of the closing was an incomplete copy of the easement agreement, providing no opportunity for actual notice to the defendants or their attorney. I have further found that there was no credible evidence at trial that Mr. Seldin and Ms. Stein or their attorney were ever given a complete copy of the easement, executed or unexecuted, on the day of the closing or prior thereto, nor were they given any legitimate documentation referencing the easement agreement prior to the closing. For all of the aforementioned reasons, the plaintiffs failed to establish that the defendants had actual knowledge of the easement agreement reserving two parking spaces on the defendants' property for the benefit of the plaintiffs.

Finally, I do not credit Mr. Burdick's testimony that he told the defendants, "we had an easement" over the two disputed parking spaces. [Note 46] Instead, I credit the testimony of Ms. Stein that Mr. Burdick gestured towards the two disputed parking spaces and told them, "we park there." [Note 47] This statement by Mr. Burdick is insufficient to confer actual notice upon the defendants as it merely advises the defendants that the plaintiffs use a portion of land to park their vehicles. This statement, even if joined by evidence that the defendants viewed the plaintiffs' vehicles parked in the two parking spots, falls short of putting the defendants on notice that the plaintiffs' possess an interest in that portion of registered land because the plaintiffs' use of these parking spots could have been a permissive use or an adverse use. Calci v. Reitano, supra, 66 Mass. App. Ct. at 245 (in order to fulfill the actual notice exception to the requirement of a registered easement, "it is not enough that the holder of registered title know that the land has been used in a certain way that might indicate an easement, because this could be merely a permissive or perhaps adverse use, which specifically does not give right to an easement under G.L. c. 185, § 53[.]")."To meet the actual notice exception it is insufficient merely to claim that the holder of registered title knew that the land was being used in a way that might indicate an easement." Commonwealth Electric Co. v. MacCardell, supra, 450 Mass. 48 , 53 (2007).

CONCLUSION

For the reasons stated above, the plaintiffs have not met their burden of proving that the defendants had actual knowledge of the prior unregistered easement agreement.

Judgment will enter accordingly.