NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-32
CARLA MONTEIRO
vs.
SHANTI ACQUISITIONS, LLC. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Shanti Acquisitions, LLC, appeals from a Land
Court judgment quieting title to the property located at 48
Hansborough Street, in the Dorchester neighborhood of Boston
(locus), in plaintiff Carla Monteiro and declaring that she
established title to that property by reason of adverse
possession. The defendant argues on appeal that the plaintiff
did not carry her burden of demonstrating open and notorious use
of the locus or that her use was exclusive and adverse. The
defendant also argues that the plaintiff did not sufficiently
identify the locus boundaries. We affirm.
1 As is our usual practice, we take the parties' names as they appear in the operative complaint. Background. The judge held a two-day virtual trial and
conducted a view of the locus and adjacent properties. We
summarize the facts that the judge could have found.
The locus is an undeveloped lot of approximately 4,000
square feet. The western boundary of the locus abuts two other
lots, 476 and 480 Harvard Street. The Poindexter family, the
plaintiff's predecessor in interest, resided at 480 Harvard
Street beginning in 1968. Sometime after 1971 a fire destroyed
the adjacent home on 476 Harvard Street, after which the
residents vacated the property. The Watts family occupied a
house on the locus until it burned down in 1978. The
Poindexters thereafter took possession of both Harvard Street
lots and the locus. In 1996, the City of Boston granted formal
title of 476 Harvard Street to the Poindexters in exchange for
nominal consideration. That year, the Poindexters also
installed a fence that enclosed both Harvard Street properties
and the locus.
At trial, members of the Poindexter family testified about
their use of the locus before it was sold to the plaintiff in
2010. Margaret Evans was about thirteen when the Poindexters
moved into 480 Harvard Street. Her mother, Nellie Poindexter,
maintained a garden on the locus from 1999 to 2003. Thomas
Poindexter was sixteen when they moved in. He testified that
his parents regularly maintained the locus during his childhood,
2 by cutting the grass, for example, and by hosting occasional
family barbecues there. After college he returned home to live
with his mother from 1990 to 2010, during which time he
maintained the locus by mowing the grass, watering the tree, and
raking leaves.
In 2010, Nellie Poindexter sold 476 Harvard Street (now
comprising both Harvard Street properties) to the plaintiff.
The plaintiff testified that her family also regularly
maintained the locus from 2010 onward by mowing the lawn and
clearing snow. She also described some irregular maintenance
work, such as hiring landscapers to fill in a dip near the
driveway, clearing out debris, and cutting down a tree when its
roots began to damage the driveway. The plaintiff's family, and
sometimes her tenants, used the driveway on the locus for
parking their cars. 2 The plaintiff's son and his friends played
basketball "all year-round" using a basketball hoop located on
the pavement, played soccer on the grassy area, and the son rode
his bicycle around the entire property. They also had parties
on the locus, including putting up "moon bouncers" there. The
plaintiff maintained "keep out" and "no trespassing" signs on
2 To the extent the defendant's repeated references to a "shared driveway" is intended to suggest that the plaintiff shared the driveway with the record owner of 48 Hansborough Street, or with any third party other than her own family members and residents of 476 Harvard Street, the evidence does not support such an inference.
3 the fence, and would close the gate to the driveway at times,
such as when her son was playing basketball; however, the hinge
to the gate broke, and some months to a year before trial the
plaintiff removed the gate and stored it behind the tree on the
locus awaiting repair.
On September 25, 2019, the defendant acquired a quitclaim
deed to the locus from the estate of Gloria Watts. The
defendant then posted a sign on the plaintiff's fence announcing
the defendant's intention to file for a variance to build on the
property. Upon taking notice of the sign, the plaintiff filed a
complaint in the Land Court seeking to establish title to the
locus via adverse possession.
Discussion. The parties agreed to proceed under Rule 14 of
the Rules of the Land Court (2017). Accordingly, they waived
detailed findings of fact and rulings of law and stipulated that
appellate review would be based on the standard of review that
"would apply to a verdict by a jury in a case tried to a jury
and the judgment entered thereon." Rule 14(a), (c) of the Rules
of the Land Court. "We therefore review to determine whether
anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
reasonable inference could be drawn in favor of the [prevailing
party]" (quotation omitted). K & K Dev., Inc. v. Andrews, 103
Mass. App. Ct. 338, 344 (2023) (interpreting similar Rule 20 of
4 the Rules of the Superior Court [2018]). Under this standard of
review, we will not set aside the judgment unless it "has no
rational basis in the evidence." Brewster Wallcovering Co. v.
Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 595
(2007).
Acquiring title to property by adverse possession requires
"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 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).
"Whether, in a particular case, these elements are sufficiently
shown is essentially a question of fact." Brandao v. DoCanto,
80 Mass. App. Ct. 151, 156 (2011), quoting Kershaw v. Zecchini,
342 Mass. 318, 320 (1961).
1. Open and notorious. The defendant argues that the
plaintiff failed to establish open and notorious use of the
locus because the evidence showed only sporadic upkeep and
maintenance. "The extent of openness and notoriety necessary
for the acquirement of title by adverse use varies with the
character of the land." Tinker v. Bessel, 213 Mass.
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-32
CARLA MONTEIRO
vs.
SHANTI ACQUISITIONS, LLC. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Defendant Shanti Acquisitions, LLC, appeals from a Land
Court judgment quieting title to the property located at 48
Hansborough Street, in the Dorchester neighborhood of Boston
(locus), in plaintiff Carla Monteiro and declaring that she
established title to that property by reason of adverse
possession. The defendant argues on appeal that the plaintiff
did not carry her burden of demonstrating open and notorious use
of the locus or that her use was exclusive and adverse. The
defendant also argues that the plaintiff did not sufficiently
identify the locus boundaries. We affirm.
1 As is our usual practice, we take the parties' names as they appear in the operative complaint. Background. The judge held a two-day virtual trial and
conducted a view of the locus and adjacent properties. We
summarize the facts that the judge could have found.
The locus is an undeveloped lot of approximately 4,000
square feet. The western boundary of the locus abuts two other
lots, 476 and 480 Harvard Street. The Poindexter family, the
plaintiff's predecessor in interest, resided at 480 Harvard
Street beginning in 1968. Sometime after 1971 a fire destroyed
the adjacent home on 476 Harvard Street, after which the
residents vacated the property. The Watts family occupied a
house on the locus until it burned down in 1978. The
Poindexters thereafter took possession of both Harvard Street
lots and the locus. In 1996, the City of Boston granted formal
title of 476 Harvard Street to the Poindexters in exchange for
nominal consideration. That year, the Poindexters also
installed a fence that enclosed both Harvard Street properties
and the locus.
At trial, members of the Poindexter family testified about
their use of the locus before it was sold to the plaintiff in
2010. Margaret Evans was about thirteen when the Poindexters
moved into 480 Harvard Street. Her mother, Nellie Poindexter,
maintained a garden on the locus from 1999 to 2003. Thomas
Poindexter was sixteen when they moved in. He testified that
his parents regularly maintained the locus during his childhood,
2 by cutting the grass, for example, and by hosting occasional
family barbecues there. After college he returned home to live
with his mother from 1990 to 2010, during which time he
maintained the locus by mowing the grass, watering the tree, and
raking leaves.
In 2010, Nellie Poindexter sold 476 Harvard Street (now
comprising both Harvard Street properties) to the plaintiff.
The plaintiff testified that her family also regularly
maintained the locus from 2010 onward by mowing the lawn and
clearing snow. She also described some irregular maintenance
work, such as hiring landscapers to fill in a dip near the
driveway, clearing out debris, and cutting down a tree when its
roots began to damage the driveway. The plaintiff's family, and
sometimes her tenants, used the driveway on the locus for
parking their cars. 2 The plaintiff's son and his friends played
basketball "all year-round" using a basketball hoop located on
the pavement, played soccer on the grassy area, and the son rode
his bicycle around the entire property. They also had parties
on the locus, including putting up "moon bouncers" there. The
plaintiff maintained "keep out" and "no trespassing" signs on
2 To the extent the defendant's repeated references to a "shared driveway" is intended to suggest that the plaintiff shared the driveway with the record owner of 48 Hansborough Street, or with any third party other than her own family members and residents of 476 Harvard Street, the evidence does not support such an inference.
3 the fence, and would close the gate to the driveway at times,
such as when her son was playing basketball; however, the hinge
to the gate broke, and some months to a year before trial the
plaintiff removed the gate and stored it behind the tree on the
locus awaiting repair.
On September 25, 2019, the defendant acquired a quitclaim
deed to the locus from the estate of Gloria Watts. The
defendant then posted a sign on the plaintiff's fence announcing
the defendant's intention to file for a variance to build on the
property. Upon taking notice of the sign, the plaintiff filed a
complaint in the Land Court seeking to establish title to the
locus via adverse possession.
Discussion. The parties agreed to proceed under Rule 14 of
the Rules of the Land Court (2017). Accordingly, they waived
detailed findings of fact and rulings of law and stipulated that
appellate review would be based on the standard of review that
"would apply to a verdict by a jury in a case tried to a jury
and the judgment entered thereon." Rule 14(a), (c) of the Rules
of the Land Court. "We therefore review to determine whether
anywhere in the evidence, from whatever source derived, any
combination of circumstances could be found from which a
reasonable inference could be drawn in favor of the [prevailing
party]" (quotation omitted). K & K Dev., Inc. v. Andrews, 103
Mass. App. Ct. 338, 344 (2023) (interpreting similar Rule 20 of
4 the Rules of the Superior Court [2018]). Under this standard of
review, we will not set aside the judgment unless it "has no
rational basis in the evidence." Brewster Wallcovering Co. v.
Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 595
(2007).
Acquiring title to property by adverse possession requires
"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 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).
"Whether, in a particular case, these elements are sufficiently
shown is essentially a question of fact." Brandao v. DoCanto,
80 Mass. App. Ct. 151, 156 (2011), quoting Kershaw v. Zecchini,
342 Mass. 318, 320 (1961).
1. Open and notorious. The defendant argues that the
plaintiff failed to establish open and notorious use of the
locus because the evidence showed only sporadic upkeep and
maintenance. "The extent of openness and notoriety necessary
for the acquirement of title by adverse use varies with the
character of the land." Tinker v. Bessel, 213 Mass. 74, 76
(1912). The general test asks whether a reasonably diligent
5 landowner would discover the use. See Boothroyd v. Bogartz, 68
Mass. App. Ct. 40, 45 (2007). To prevail on an adverse
possession claim, the possessor must use the property "as the
average owner would use it . . . irrespective of the possessor's
actual state of mind or intent." Ottavia v. Savarese, 338 Mass.
330, 333 (1959). 3
The evidence at trial permitted the judge to find that the
plaintiff and the Poindexters before her maintained the locus
regularly since 1978 and enclosed it with a fence in 1996. They
performed regular maintenance, such as mowing, removing snow,
making repairs, cutting down a tree, and planting a garden. The
evidence supported the judge's conclusion that the plaintiff's
usage was in line with that of an average owner. See Miller v.
Abramson, 95 Mass. App. Ct. 828, 833-834 (2019) ("relatively
passive use" consisting of typical suburban lawn care occurring
on continuous basis satisfied requirements of adverse
possession); MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 904
3 When asked whether it was ever his intention to keep the record owner out, Thomas Poindexter answered, "No, sir. We weren't aware of any record owner. But if there was, they could have came to us. But no, we never intended to keep any owner off the property." Whatever the plaintiff's predecessor's intent, it is irrelevant to whether their occupation of the locus put the record owner on notice of the adverse use. See Air Plum Island, Inc. v. Society for the Preservation of New England Antiquities, 70 Mass. App. Ct. 246, 252 (2007) ("The mentalities or intentions of the parties are immaterial to the issue of nonpermissive use. The material fact is the conduct of the possessor" [citation omitted]).
6 (1993) (actual use consisting of "little more than maintenance
of a suburban lawn" sufficient to establish adverse possession).
Moreover, in addition to the evidence of regular
maintenance, the Poindexters erected and the plaintiff
maintained a fence surrounding the locus and incorporating it
into the plaintiff's property, complete with "no trespassing"
and "keep out" signs. The fence put the record owner on notice
that the plaintiff was making adverse use of the locus. See
Kendall v. Selvaggio, 413 Mass. 619, 624-625 (1992) (evidence
that possessors added fence without consent, planted bushes and
trees along fence, and "in other ways acted as if they claimed
the land as their own" put true owner on notice and supported
claim of adverse possession); Poignard v. Smith, 6 Pick. 172,
178 (1828) (fence around land constituted act of notoriety
sufficient for constructive notice); Miller, 95 Mass. App. Ct.
at 831-832 (vegetative boundary which allowed for easy
identification of openly used land provided adequate notice).
The evidence of the fence, together with the plaintiff's use and
maintenance of the locus, amply supported the judge's
determination that the use was open and notorious.
2. Exclusivity. The defendant also contends that the
plaintiff's use was not exclusive because the fence was in
disrepair and accordingly failed to exclude all third persons
from the locus.
7 A claimant's use is exclusive for purposes of establishing
adverse possession "if such use excludes not only the record
owner but 'all third persons to the extent that the owner would
have excluded them.'" Brandao, 80 Mass. App. Ct. at 158,
quoting Peck v. Bigelow, 34 Mass. App. Ct. 551, 557 (1993).
"Acts of enclosure or cultivation are evidence of exclusive
possession." Labounty v. Vickers, 352 Mass. 337, 349 (1967).
The degree of occupation necessary to establish adverse
possession is fact specific and differs with the circumstances
of the surrounding landscape. See Miller, 95 Mass. App. Ct. at
831-832; Paine v. Sexton, 88 Mass. App. Ct. 389, 391-392 (2015).
The defendant argues that exclusive use requires exclusion
of all third parties, and therefore the fence's inability to
prevent neighbors from occasionally crossing through the locus
casts doubt upon the plaintiff's adverse possession claim. We
disagree. Such sporadic and minor trespasses do not preclude
finding exclusive use, especially given the locus's location in
an urban neighborhood. Exclusivity does not require absolute
exclusion, only that the possessor exclude "all third persons to
the extent that the owner would have excluded them." Peck, 34
Mass. App. Ct. at 557. Indeed, the plaintiff posted "keep out"
and "no trespassing" signs to deter such behavior. See Paine,
88 Mass. App. Ct. 391-392 (affirming finding of adverse
possession where plaintiffs improved property, hung "no
8 trespassing" signs, and built fences but did not enclose entire
locus).
3. Adverse. The defendant argues that the Poindexters'
use was not adverse because they maintained their garden with
the record owner's knowledge and permission. However, the
record contains no testimony that compelled the judge to find
that the owner was aware of the garden. As proof of the record
owner's knowledge, the defendant points to Evans's testimony
that while her mother was gardening, "the person who lived
there" would visit with her. As this occurred between 1999 and
2003, after the house at 48 Hansborough Street burned down,
Evans most likely was not referring to the record owner. Her
brother's testimony confirmed that the neighbors in question
were the residents of 44 Hansborough Street, the property
adjacent to the locus. "It is not sufficient to challenge the
judge's findings by reciting other evidence in the record that
[the judge] may not have credited." Millennium Equity Holdings,
LLC v. Mahlowitz, 456 Mass. 627, 637 (2010).
4. Failure to identify boundaries. We need not dwell on
the defendant's argument, apparently raised for the first time
on appeal, that the plaintiff failed to prove the boundaries of
the locus. The plaintiff's complaint described the disputed
property as "48 Hansborough Street, Dorchester," with references
to book and page numbers recorded in the registry of deeds. The
9 special verdict form and judgment, respectively, described the
property as "48 Hansborough Street, as shown on Exhibit 9," and
"48 Hansborough Street in the Dorchester neighborhood of Boston,
with 40 feet of frontage on Hansborough Street and containing
4,000 square feet of land, more or less, as shown on a plan
marked as Exhibit 9 at the trial." As the description of the
locus was clear and unambiguous, further specificity, such as a
metes and bounds description, was unnecessary.
Judgment affirmed.
By the Court (Blake, Massing, & Hand, JJ. 4),
Clerk
Entered: November 1, 2023.
4 The panelists are listed in order of seniority.