Am Props., LLC v. J&W Summit Ave, LLC.

• Decision Date: 08 March 2017
• Docket Number: No. 15-P-1343,15-P-1343
• Citation: 91 Mass.App.Ct. 150,73 N.E.3d 304
• Parties: AM PROPERTIES, LLC v. J&W SUMMIT AVE, LLC.
• Court: Appeals Court of Massachusetts

91 Mass.App.Ct. 150
73 N.E.3d 304

AM PROPERTIES, LLC
v.
J&W SUMMIT AVE, LLC.

No. 15-P-1343

Appeals Court of Massachusetts, Suffolk..

Argued May 17, 2016.
Decided March 8, 2017.

Joseph L. Bierwirth, Jr . ( Ryan P. McManus also present), Boston, for the defendant.

Ann M. Sobolewski , Boston, for the plaintiff.

Present: Cypher, Blake, & Henry, JJ.

HENRY, J.

91 Mass.App.Ct. 150

The plaintiff, AM Properties, LLC (AM), brought an action in the Land Court seeking to establish title by adverse possession to a strip of land (the strip) that is part of the property of the defendant, J&W Summit Ave, LLC (J&W), and permanently enjoin J&W from interfering with rights in an easement for passage over J&W's property (the passageway). J&W counterclaimed, denying AM's claim of title to the strip and asserting its own adverse possession claim to extinguish AM's rights to the

91 Mass.App.Ct. 151

passageway. The central issue in the case is whether AM is entitled to include, or "tack" on, an approximate six-year period of nonpermissive use of the strip by a tenant of a prior owner to satisfy the twenty-year requirement for a claim of adverse possession. On cross motions for summary judgment, a Land Court judge answered this question in the affirmative and ruled in AM's favor on all claims. J&W has now appealed from that judgment.

As is well established, a review of a summary judgment ruling is de novo, taking the facts, along with the reasonable inferences that can be drawn therefrom, in a light most favorable to the party against whom judgment is to enter. See Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007) ; Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass.App.Ct. 245, 248 n.4, 921 N.E.2d 121 (2010). To that end, we conclude that there is no genuine dispute

73 N.E.3d 306

of material fact¹ and that AM is entitled as a matter of law to tack on the prior period of tenancy to establish adverse possession. Accordingly, we affirm.

Background. The following undisputed material facts are evident from the record. A specialty food store named Bazaar International Gourmet (Bazaar) has operated on the AM property at 1432 and 1432A Beacon Street in Brookline since December, 1993, initially under a lease that commenced September 1, 1993. At that time, the lessee and operator of Bazaar was a corporation formed by Alexander Zelfond called I.G.F., Inc. (IGF). Subsequently, Zelfond formed AM to purchase the property in 1999. Zelfond then formed a third entity, I.V.A. Foods, Inc. (IVA), in April, 2000, to continue to operate Bazaar.

The J&W property is north of the AM property and borders on Summit Avenue. Most of the J&W property is occupied by a parking lot.

1. The strip. At issue here is a rectangular strip of land on the J&W property located between the rear boundary of the AM property and the southern end of the J&W parking lot. The strip is at a "significantly" lower elevation than the balance of the J&W property, and is bounded on the north by a cement retaining wall rising 5.23 feet in height from the level of the strip to the level of the J&W parking lot. On the southerly edge of the strip, a railroad tie retaining wall runs the length of the boundary between the strip and the AM property, just a few feet from the rear of the building housing Bazaar. The strip is at a higher elevation than the AM

91 Mass.App.Ct. 152

property,² but the elevation difference is significantly less than the difference between the strip and the parking lot on the other side. A set of stairs allows for travel from the AM property and the strip up to the J&W parking lot, and then to the passageway to Summit Avenue.

a. The tenancy. The lease between IGF and the former owner of the AM property (the landlord), executed in August, 1993, designated the leased premises by reference to the street address, "together with the basement thereunder." The lease did not include a description of the square footage, a reference to any plan, or any specific mention of the strip. During Zelfond's negotiation of the lease with the landlord, no distinction was made between the strip and the area behind the building on the AM property. Zelfond and an agent of the landlord walked through the building and onto the strip during negotiations and the agent never suggested that the strip was not part of the leased premises. Subsequently, during the many conversations the two had throughout the term of the tenancy, the landlord's agent never told Zelfond to stop using the strip. Zelfond also never sought or received permission from anyone connected with the J&W property to use the strip.

b. Use of the strip. The Zelfond-related entities (IGF, IVA, and AM) took actions consistent with ownership of the strip. In August, 1993, before the lease term commenced, IGF took possession of the AM property and began to use the strip. During August and September, 1993, IGF levelled the strip and used it as a temporary staging area while it renovated the property. Since the day Bazaar first opened in December, 1993, the store has operated seven days per week, only closing for legal holidays. Throughout that time, Zelfond and employees of Bazaar continuously

73 N.E.3d 307

used the strip to store equipment and supplies related to the operation of the store, repaired the retaining wall along the J&W parking lot, maintained the strip by clearing it of snow and leaves and by pruning trees and bushes, and accessed the strip, sometimes dozens of times per day, for these and other purposes. IVA or AM maintained compressors on the strip, if not continuously throughout the relevant time period, then at least for stretches of time throughout that period.³ Beginning in 1995, IVA or AM also installed and began frequently accessing a walk-in cooler on the

91 Mass.App.Ct. 153

strip.⁴

In 2007, AM hired a contractor to install a metal chain link fence along the top of the concrete retaining wall bounding the parking lot and the strip, which bore a sign facing the parking lot that read, "No trespassing, Private property." There is no evidence in the record that anyone connected with the J&W property objected to the installation of the fence or sign, and both remained in place through the summary judgment proceedings.

The only evidence that anyone connected with the J&W property accessed and used the strip is the testimony of a property manager hired by J&W's predecessor to the effect that, once a year during his tenure from 1998 to 2011, he would inspect the concrete retaining wall.⁵ There is no evidence in the record that the property manager ever encountered, or was observed by, anyone connected with the AM property when he conducted these inspections.⁶

2. The passageway. There is no space between the building on the AM property that houses Bazaar and the buildings on the properties located immediately to the east and west. As such, there are only two means of ingress and egress from the AM property. The first is to and from the sidewalk along Beacon Street in front of the building. The second is via the passageway—a five-foot-wide deeded easement to Summit Avenue that travels over the J&W property.⁷

J&W's parking lot has been licensed for sixteen vehicles since June, 1993. In 1999, the parking lot was resurfaced and lines delineating the parking spaces were painted. Several of these parking lines extended into the passageway. As a result, vehicles parked in those spaces extended into the passageway and obstructed

91 Mass.App.Ct. 154

travel along the easement. There is no evidence in the record that there were painted parking lines on the surface of the parking lot prior to 1999.⁸

73 N.E.3d 308

Discussion. 1. AM's adverse possession of the strip. "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, 203 N.E.2d 85 (1964). "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 Condominium III Assn. v. Steffens, 61 Mass.App.Ct. 838, 847, 814 N.E.2d 752 (2004). To satisfy the twenty-year requirement, a claimant may "tack" onto its own period of use a period during which a predecessor in privity asserted an adverse right to the property. See Shoer v. Daffe, 337 Mass. 420, 424, 149 N.E.2d 625 (1958).

a. Tacking on a period of tenancy. The motion judge concluded that AM could satisfy the twenty-year adverse possession requirement as to the strip by "tacking" together the use of the strip during AM's fourteen years of ownership of the property on which Bazaar was located, and IGF's prior use of the strip for six years while it occupied the property as a tenant. J&W argues that such tacking is not permissible unless the landlord during IGF's period of tenancy had possession of the disputed property, or...