AM Properties, LLC v. J&W Summit Ave, LLC

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15-P-1343 Appeals Court

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

No. 15-P-1343.

Suffolk. May 17, 2016. - March 8, 2017.

Present: Cypher, Blake, & Henry, JJ.

Adverse Possession and Prescription. Real Property, Adverse
possession.

Civil action commenced in the Land Court Department on
September 27, 2013.

The case was heard by Alexander H. Sands, III, J., on
motions for summary judgment.

Joseph L. Bierwirth, Jr. (Ryan P. McManus also present) for
the defendant.
Ann M. Sobolewski for the plaintiff.

HENRY, J. The plaintiff, AM Properties, LLC (AM), brought

an action in the Land Court seeking to (1) 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

(2) permanently enjoin J&W from interfering with rights in an
2

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 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 (2007); Albahari v. Zoning

Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 n.4

(2010). To that end, we conclude that there is no genuine

dispute 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.

1
In many instances where J&W has "disputed" facts, it
disputes the legal significance of those facts, not the facts
themselves.
3

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
4

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.

2
The record does not provide an exact measurement of the
difference in elevation or height of the railroad tie retaining
wall.
5

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 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

3
In addition to the evidence that compressors were
installed on the strip prior to the December, 1993, opening of
Bazaar, compressors were observed on the strip in, at the very
least, 1998 and 2001, and were still located on the strip at the
time of the summary judgment proceedings in 2015.
6

installed and began frequently accessing a walk-in cooler on the

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

4
This cooler was removed in 1999. It was replaced in 2007,
and remained in place on the strip through the time of the
summary judgment proceedings.
5
The property manager also hired a cleaning company to
occasionally "police" the J&W property, including the strip, for
trash.
7

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 cars 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, cars

parked in those spaces extended into the passageway and

obstructed travel along the easement. There is no evidence in

6
Zelfond and certain employees and contractors connected
with the AM property never observed anyone connected with the
J&W property on the strip.
7
The deed to AM describes the easement rights: "Together
with the right to use the five foot passageway on the North and
Northwesterly side of said lot A-2 leading out to Summit Avenue
in common with others entitled thereto." Slightly more than
half way across the J&W property the five-foot-wide easement
joins a ten-foot-wide easement before it empties onto Summit
Avenue. The ten-foot-wide easement does not otherwise appear to
be at issue in this case.
8

the record that there were painted parking lines on the surface

of the parking lot prior to 1999.8

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 (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 (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 (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

8
J&W's former property manager recalled that, even before
the lines were painted in 1999, cars would park within the
bounds of the passageway. His involvement with the J&W
property, however, dated back only to 1998.
9

landlord during IGF's period of tenancy had possession of the

disputed property, or claimed title to it, and included it in

the lease to IGF. In support of this proposition, J&W cites to

Holmes v. Turner's Falls Co., 150 Mass. 535 (1890) (Turner's

Falls), and Holmes v. Johnson, 324 Mass. 450 (1949) (Johnson).

The rule enunciated in those two cases, however, has been

implicitly overruled. See Ottavia v. Savarese, 338 Mass. 330

(1959); Kendall v. Selvaggio, 413 Mass. 619 (1992); Totman v.

Malloy, 431 Mass. 143 (2000). The argument, therefore, cannot

be sustained.

In Turner's Falls, the Supreme Judicial Court first

addressed the tacking of a period of tenancy for purposes of

adverse possession and held:

"If one person disseises another of land, and while in
possession leases the land to a tenant who continues to
occupy it under his lease, the adverse possession of the
tenant may be tacked to that of the landlord, and the
possession of the tenant may be said to be that of the
landlord; but if the landlord never had possession of the
land, nor claimed title to it, and did not include it in
the lease, the possession of the tenant beyond the
boundaries of the land contained in the lease is not the
possession of the landlord, even although the tenant
believes that he is occupying only the land demised."

150 Mass. at 547.

Almost sixty years later, the issue came to the fore again

in Johnson. There, the plaintiff's mother had owned their

property, and the plaintiff and her family had openly used the

adjacent, disputed strip of land as though it were their own,
10

for a period of thirteen to fifteen years. 324 Mass. at 451-

452. Subsequently, after the bank holding her mother's mortgage

foreclosed, the plaintiff continued both to occupy the property

as a tenant of the bank and use and possess the disputed strip

as her own. Ibid. Then, after approximately four years as a

tenant, the plaintiff purchased the property back from the bank

and continued to live there, using the disputed strip, for some

seven years more, at which point the adjoining landowner, the

defendant Johnson, entered the strip and asserted ownership.

Ibid.

According to the Supreme Judicial Court, the "question for

decision [in Johnson was] whether the plaintiff has shown that

the possession of her family and herself was under a continuous

claim of right or title for twenty years." Id. at 453. The

court answered that question in the negative and held:

"[W]hen title to [the leased property] was in the bank and
the plaintiff was its tenant, [the tenant's] possession of
the disputed area was under a claim of right to hold it not
in fee but only as a tenant of the bank. As the bank never
had possession of the disputed area, nor claimed title to
it, and did not include it in its letting to the tenant,
the possession of the tenant beyond the boundaries of [the
lessor's premises] cannot be considered to be the
possession of the [lessor]. Holmes v. Turner's Falls Co.,
150 Mass. [at] 547; Elwell v. Barbrick, 279 Mass. 272, 277
[1932]. As the continuity of possession under a claim of
right to the title was interrupted, the conclusion of the
master that the plaintiff has not acquired title by adverse
possession was correct."

Id. at 454-455.
11

Ten years later, however, the Supreme Judicial Court

decided Ottavia, wherein it acknowledged that the rule in

Johnson had been "severely criticized" and that "there seems to

be no justification for requiring a claim of right or title as

essential to an adverse possession." Ottavia, 338 Mass. at 333

(quotation omitted). Instead, the court shifted the focus to

nonpermissive use, stating:

"'The great majority of the cases establish convincingly
that the alleged requirements of claim of title and of
hostility of possession mean only that the possessor must
use and enjoy the property continuously for the required
period as the average owner would use it, without the
consent of the true owner and therefore in actual hostility
to him irrespective of the possessor's actual state of mind
or intent.' Am. Law of Property, § 15.4, pp. 776-777.
From the standpoint of the true owner, the purpose of the
various requirements of adverse possession . . . is to put
him on notice of the hostile activity of the possession so
that he, the owner, may have an opportunity to take steps
to vindicate his rights by legal action. Where a claim of
right is made or where an intention to oust exists and is
communicated or is open and notorious, the purpose of
notice is satisfied, for it is likely that the encroachment
and the fact of its hostility will come to the attention of
the true owner. The nonexistence of a claim of right or
intent to oust does not, however, necessarily preclude
notice. Where the user has acted, without license or
permission of the true owner, in a manner inconsistent with
the true owner's rights, the acts alone (without any
explicit claim of right or intent to dispossess) may be
sufficient to put the true owner on notice of the
nonpermissive use."

Id. at 333-334.

The court subsequently elaborated upon this shift. First,

in Kendall, the court cited Ottavia and stated that, "[i]nstead

of focusing on what the parties said twenty or more years ago,
12

we have held repeatedly that courts must look to the physical

facts of entry and possession as evidence of an intent to occupy

and to hold property as of right. . . . The justification for

this position is that, if inconsistent with the true owner's

rights, the possessor's actions and not his intent provide

notice of nonpermissive use to the true owner." Kendall, 413

Mass. at 624. Then, in Totman, the court cited Ottavia and

Kendall and declared that "[t]he guiding principle behind the

elements of adverse possession is not to ascertain the intent or

state of mind of the adverse claimant, but rather to provide

notice to the true owner, allowing for the legal vindication of

property rights." Totman, 431 Mass. at 145.

Whereas Turner's Falls and Johnson focused on whether the

landlords in those cases had asserted a technical claim to title

and their intent as to the disputed area,9 Ottavia shifted the

focus to the nature and extent of the actual possessor's use of

the disputed property and whether that use is sufficient to put

a reasonable owner on notice of the hostile activity and thus

9
The motion judge concluded that AM satisfied the rule of
Turner's Falls and Johnson because, based upon the topography of
the strip, located significantly below the grade of the balance
of the J&W property and on nearly the same grade as the AM
property, as well as a clause in the lease that required IGF to
keep the leased premises in a clean and sanitary manner, it
could be implied that the landlord had claimed title to the
strip and intended it to be included under the lease. Given our
ruling, that issue is moot.
13

afford the owner an opportunity to act to vindicate his or her

rights. Ottavia, 338 Mass. at 333-334.

Here, therefore, the focus is not on whether the landlord

had possession of the strip, claimed title to it, or included it

in the lease to IGF. Rather, the focus is properly on the

nature and extent to which IGF used the strip and whether that

was sufficient to put a reasonable owner of the J&W property on

notice. The undisputed facts in the record establish that,

irrespective of IGF's landlord's actual state of mind or intent,

IGF used the strip "as the average owner would use it," Kendall,

413 Mass. at 624, throughout the tenancy, without the consent of

J&W, the true owner. IGF's use was such that it should have

come to the attention of the owner of the J&W property.

Of course, the tacking analysis does not end there, because

privity between AM and IGF, as well as between AM and IVA is

also required. See Shoer, 337 Mass. at 424. "To produce the

necessary privity [for tacking of successive periods of adverse

use] there must be some relation between the successive users of

such a nature that the use by the earlier user can fairly be

said to be made for the later user, or there must be such a

relation between them that the later user can be fairly regarded

as the successor to the earlier one. Am. Law of Property,

§ 8.59." Ryan, 348 Mass. at 264. As an initial matter, we note

that J&W has not challenged whether privity exists between AM
14

and the other two entities. Nor could it. AM, IGF, and IVA

were all formed by Zelfond and were connected, as either

landlord or tenant, with the operation, or preparation to

operate Bazaar on the AM property for more than twenty years.

As matter of law, therefore, privity exists.

b. Exclusivity of possession of the strip. J&W also

argues that there is a genuine dispute as to whether AM and its

predecessor, IGF, maintained exclusive possession of the strip

throughout the required twenty-year period. J&W makes two

claims. First, J&W claims that IGF's earliest uses of the

property were not sufficient to support a claim of adverse

possession. We disagree. The summary judgment record amply

supports IGF's use of the property commencing in August, 1993.

Second, J&W argues that exclusive possession of the strip

was interrupted by activities of J&W's property manager from

1998 to 2011. However, "[n]ot every act by the owner on the

land interrupts actual adverse possession." Rothery v.

MacDonald, 329 Mass. 238, 241 (1952). "To stop the running of

the [prescriptive period], the owner's entry, with few

exceptions [not applicable here], must be done openly on the

land, so as to give notice of the interruption." Pugatch v.

Stoloff, 41 Mass. App. Ct. 536, 541-542 (1996). Even accepting

that the J&W property manager actually stepped onto the strip
15

when he conducted his inspections,10 these inspections were so

infrequent and innocuous that they cannot be deemed to have put

AM or its predecessor on notice that the owner of the J&W

property was purporting to exercise dominion and control over

that disputed piece of property.11 In fact, the evidence shows

that no one connected with the AM property ever saw the J&W

property manager conduct these inspections. J&W's claim of

error, therefore, cannot be sustained.

In sum, as detailed above, beginning in August, 1993, and

continuing for more than twenty years thereafter,12 AM and its

predecessor engaged in significant and continual activity on the

strip. The activity was both inconsistent with the rights of

the owners of the J&W property and consistent with a claim of

dominion and control over the strip by AM and its predecessor.

The activity was open and notorious and sufficient to put all of

the world, including the owners of the J&W property, on notice

10
During his inspections, the J&W property manager usually
did not venture much further than the set of stairs that lead
down to the strip.
11
With respect to the cleaning company the J&W property
manager hired to occasionally "police" the strip for trash, even
if we infer that the cleaning company employees actually went on
the strip, despite the lack of direct evidence to that effect,
such activity was so infrequent as to be immaterial. See note
6, supra.
12
It is immaterial whether one instead uses September 27,
2013, the date of the filing of AM's complaint, as the trigger
date for calculating the twenty-year period.
16

of the nonpermissive use. Based upon the undisputed facts,

therefore, AM established the necessary elements for adverse

possession of the strip.

2. J&W's adverse possession of the passageway. J&W argues

that the judge erroneously granted summary judgment in AM's

favor on J&W's claim of adverse possession of the passageway.

Specifically, J&W contends that the judge erroneously concluded

that J&W had "offered no evidence suggesting any adverse use of

the [p]assageway . . . prior to 1999." J&W relies on the

testimony of its property manager to the effect that cars were

parked within the bounds of the passageway both before and after

the parking space lines were painted on the parking lot in 1999.

As noted previously, the property manager's tenure spanned 1998

to 2011 only. As a result, he could not provide testimony as to

what transpired at the J&W property and parking lot prior to

that time. J&W further notes that the parking lot has been

licensed for sixteen parking spaces since at least June, 1993.

That does not establish, however, that the spaces were

configured in a manner that caused cars to block the passageway

prior to 1999. Absent such evidence, J&W is unable to establish

adverse use of the passageway for the requisite twenty-year

period. The claim for adverse possession of the passageway,

therefore, fails as a matter of law.

Judgment affirmed.