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
24-P-1079
JOYCE MICHAELIDIS, trustee,1
vs.
HHC ONE ARNOLD, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Joyce Michaelidis, as trustee of 3 Dana Avenue Realty
Trust, and HHC One Arnold, LLC, own adjacent properties in the
Hyde Park neighborhood of Boston (Michaelidis property and HHC
property, respectively). In 2022, Michaelidis filed suit
against HHC in the Land Court seeking declaratory judgment for
adverse possession of a strip of land on the HHC property that
abuts the Michaelidis property (disputed area).2 A Land Court
judge conducted a jury-waived trial that included a view of the
Michaelidis and HHC properties. Michaelidis, her daughter, and
1 Of the 3 Dana Avenue Realty Trust.
2Pamela Van Cott, cotrustee of 3 Dana Ave Realty Trust, joined the initial suit in the Land Court. an HHC property manager testified. At the conclusion of the
trial, the judge found that Michaelidis did not sufficiently
identify the disputed property or satisfy the elements of
adverse possession with respect to any part of the disputed area
within the HHC property and entered judgment in favor of HHC.3
We affirm.
Discussion. The parties agreed to proceed at trial under
Rule 14 of the Rules of the Land Court (2017).4 Accordingly,
they waived detailed findings of fact and rulings of law and
agreed 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]" (quotations and citation omitted). K & K
Dev., Inc. v. Andrews, 103 Mass. App. Ct. 338, 344 (2023)
(interpreting similar Rule 20 of the Rules of the Superior Court
3 The parties stipulated that the elements of adverse possession were met with respect to a garage extending partially onto HHC's property. That issue is not before us.
4 There is no dispute that this was a Rule 14 trial, though the parties did not file a written stipulation as required by Rule 14 (c) of the Rules of the Land Court.
2 [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).5
"Title by adverse possession can be acquired only by proof
of nonpermissive use which is actual, open, notorious, exclusive
and adverse for twenty years." Kendall v. Selvaggio, 413 Mass.
619, 621-622 (1992), quoting 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).
5 At the conclusion of the trial, the judge provided "an abbreviated version" of his reasoning to help the parties understand his verdict. See Commonwealth v. Roberson, 103 Mass. App. Ct. 772, 777 (2024) (judge's brief remarks following jury- waived trial not comprehensive statement of facts found or legal rulings). Even if our review of the findings included in the judge's summary was for clear error, see H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1, 13 (2022), a standard more favorable to Michaelidis than the one we apply to cases tried under Rule 14, our conclusion would be the same.
3 Here, the judge determined that, even assuming Michaelidis
had defined the disputed area sufficiently,6 she did not
demonstrate that her use of the area was actual, open,
notorious, exclusive, or continuous for a period of at least
twenty years. Michaelidis contends that each element of adverse
possession of the disputed area was satisfied from 1984 to 2004
by evidence of (1) the placement of a hammock, swing set, and
bird feeder; (2) landscaping activities; (3) her children
playing; and (4) annual Greek Easter celebrations for which
tables and chairs were placed in the disputed area.
1. Actual, open, and notorious use. Each of the uses
Michaelidis described encroached minimally, if at all, onto the
disputed area. The hammock, swing set, and bird feeder were
located over the grass of the Michaelidis property.7 During the
annual Greek Easter celebrations or family parties, guests
congregated on the side yard of the Michaelides property, not in
the disputed area. To the extent a folding table was placed at
6 The judge found that, as a preliminary matter, Michaelidis could not succeed with her claim because she failed to describe the disputed area with sufficient clarity. See McHale v. Treworgy, 325 Mass. 381, 385 (1950) (valid conveyance of land requires particular description of subject of conveyance). We need not decide this issue based on our review of the judge's finding that Michaelidis failed to meet her burden to prove each of the elements of adverse possession.
7 It appears that one end of the hammock was attached to a tree that may have been in the disputed area.
4 the edge of the yard, no more than a third of it entered the
disputed area. On this evidence, the judge had a rational basis
to find that Michaelidis's activities in the disputed area were
physically limited and thus fell short of actual, open, and
notorious use. See Sea Pines Condominium III Ass'n v. Steffens,
61 Mass. App. Ct. 838, 847 (2004) (actual use requires changes
upon land constituting control and dominion over premises like
those associated with ownership); Lawrence, 439 Mass. at 421
(open and notorious use requires activity placing true owner on
notice of hostile possession sufficient for opportunity to
vindicate rights by legal action).
2. Exclusivity. Michaelidis contends that unrefuted
evidence showed her exclusive use of the disputed area between
1984 and 2004. She asserts that her family maintained and
cultivated the land by mowing it. However, in the 1980s and
1990s, the disputed area consisted of trees, bushes, and brush
that was separated from the Michaelidis property by a strip of
dirt. The judge did not credit testimony that the "area under
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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
24-P-1079
JOYCE MICHAELIDIS, trustee,1
vs.
HHC ONE ARNOLD, LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Joyce Michaelidis, as trustee of 3 Dana Avenue Realty
Trust, and HHC One Arnold, LLC, own adjacent properties in the
Hyde Park neighborhood of Boston (Michaelidis property and HHC
property, respectively). In 2022, Michaelidis filed suit
against HHC in the Land Court seeking declaratory judgment for
adverse possession of a strip of land on the HHC property that
abuts the Michaelidis property (disputed area).2 A Land Court
judge conducted a jury-waived trial that included a view of the
Michaelidis and HHC properties. Michaelidis, her daughter, and
1 Of the 3 Dana Avenue Realty Trust.
2Pamela Van Cott, cotrustee of 3 Dana Ave Realty Trust, joined the initial suit in the Land Court. an HHC property manager testified. At the conclusion of the
trial, the judge found that Michaelidis did not sufficiently
identify the disputed property or satisfy the elements of
adverse possession with respect to any part of the disputed area
within the HHC property and entered judgment in favor of HHC.3
We affirm.
Discussion. The parties agreed to proceed at trial under
Rule 14 of the Rules of the Land Court (2017).4 Accordingly,
they waived detailed findings of fact and rulings of law and
agreed 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]" (quotations and citation omitted). K & K
Dev., Inc. v. Andrews, 103 Mass. App. Ct. 338, 344 (2023)
(interpreting similar Rule 20 of the Rules of the Superior Court
3 The parties stipulated that the elements of adverse possession were met with respect to a garage extending partially onto HHC's property. That issue is not before us.
4 There is no dispute that this was a Rule 14 trial, though the parties did not file a written stipulation as required by Rule 14 (c) of the Rules of the Land Court.
2 [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).5
"Title by adverse possession can be acquired only by proof
of nonpermissive use which is actual, open, notorious, exclusive
and adverse for twenty years." Kendall v. Selvaggio, 413 Mass.
619, 621-622 (1992), quoting 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).
5 At the conclusion of the trial, the judge provided "an abbreviated version" of his reasoning to help the parties understand his verdict. See Commonwealth v. Roberson, 103 Mass. App. Ct. 772, 777 (2024) (judge's brief remarks following jury- waived trial not comprehensive statement of facts found or legal rulings). Even if our review of the findings included in the judge's summary was for clear error, see H1 Lincoln, Inc. v. South Washington St., LLC, 489 Mass. 1, 13 (2022), a standard more favorable to Michaelidis than the one we apply to cases tried under Rule 14, our conclusion would be the same.
3 Here, the judge determined that, even assuming Michaelidis
had defined the disputed area sufficiently,6 she did not
demonstrate that her use of the area was actual, open,
notorious, exclusive, or continuous for a period of at least
twenty years. Michaelidis contends that each element of adverse
possession of the disputed area was satisfied from 1984 to 2004
by evidence of (1) the placement of a hammock, swing set, and
bird feeder; (2) landscaping activities; (3) her children
playing; and (4) annual Greek Easter celebrations for which
tables and chairs were placed in the disputed area.
1. Actual, open, and notorious use. Each of the uses
Michaelidis described encroached minimally, if at all, onto the
disputed area. The hammock, swing set, and bird feeder were
located over the grass of the Michaelidis property.7 During the
annual Greek Easter celebrations or family parties, guests
congregated on the side yard of the Michaelides property, not in
the disputed area. To the extent a folding table was placed at
6 The judge found that, as a preliminary matter, Michaelidis could not succeed with her claim because she failed to describe the disputed area with sufficient clarity. See McHale v. Treworgy, 325 Mass. 381, 385 (1950) (valid conveyance of land requires particular description of subject of conveyance). We need not decide this issue based on our review of the judge's finding that Michaelidis failed to meet her burden to prove each of the elements of adverse possession.
7 It appears that one end of the hammock was attached to a tree that may have been in the disputed area.
4 the edge of the yard, no more than a third of it entered the
disputed area. On this evidence, the judge had a rational basis
to find that Michaelidis's activities in the disputed area were
physically limited and thus fell short of actual, open, and
notorious use. See Sea Pines Condominium III Ass'n v. Steffens,
61 Mass. App. Ct. 838, 847 (2004) (actual use requires changes
upon land constituting control and dominion over premises like
those associated with ownership); Lawrence, 439 Mass. at 421
(open and notorious use requires activity placing true owner on
notice of hostile possession sufficient for opportunity to
vindicate rights by legal action).
2. Exclusivity. Michaelidis contends that unrefuted
evidence showed her exclusive use of the disputed area between
1984 and 2004. She asserts that her family maintained and
cultivated the land by mowing it. However, in the 1980s and
1990s, the disputed area consisted of trees, bushes, and brush
that was separated from the Michaelidis property by a strip of
dirt. The judge did not credit testimony that the "area under
the trees" was mowed on a regular basis. Therefore, any mowing
activity would not have supported a finding of adverse
possession. Michaelidis acknowledges that she never installed
fencing or other physical structures in the disputed area. When
she purchased her property in 1984, a chain-link fence ran the
length of the disputed area. The fence created a barrier
5 between the properties and was sturdy enough to stop soccer
balls from escaping the Michaelidis property. There was
evidence that between 1994 and 1995, someone other than
Michaelidis removed the fence. This was sufficient for the
judge to conclude Michaelidis did not have exclusive possession
of the disputed area. See Brandao, 80 Mass. App. Ct. at 157
(adverse possession requires use excluding not only record owner
but all third persons to extent owner would have excluded them).
3. Continuity. Michaelidis's own use of the disputed area
lacked evidence of continuity. The bird feeder hung over the
disputed property for an unspecified period; the hammock was
removable and there was no evidence how long or consistently it
was in place; and any yard work done by Michaelidis or her
family varied in frequency and intensity. The Greek Easter
celebrations were annual and thus constituted a sporadic rather
than continuous use. See McLaughlin v. Marblehead, 68 Mass.
App. Ct. 490, 501-502 (2007). In sum, there was ample evidence
from which the judge could rationally conclude that Michaelidis
6 failed to prove continuous use of the disputed area for a period
of twenty years.8
Judgment affirmed.
By the Court (Henry, Hand & Brennan, JJ.9),
Clerk
Entered: October 14, 2025.
8 HHC requests attorney's fees incurred in defending this appeal. That request is denied. While Michaelidis has not prevailed on the main issue of adverse possession, her appeal was not frivolous.
9 The panelists are listed in order of seniority.