Sea Pines Condominium III Ass'n v. Mostyn

21 Mass. L. Rptr. 156
CourtMassachusetts Superior Court
DecidedMarch 28, 2006
DocketNo. 199900428
StatusPublished

This text of 21 Mass. L. Rptr. 156 (Sea Pines Condominium III Ass'n v. Mostyn) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sea Pines Condominium III Ass'n v. Mostyn, 21 Mass. L. Rptr. 156 (Mass. Ct. App. 2006).

Opinion

Quinlan, Regina L., J.

This is a civil action in which the plaintiff Sea Pines Condominium III Association (“Sea Pines”) is seeking title by adverse possession to a portion of the land now owned by the defendant John Mostyn (“Mostyn”) as he is Trustee of the Lot 106-2 Dune Road Realty Trust.1 (Count I.) Alternatively the plaintiff is seeking a prescriptive easement to that portion of the land in dispute. (Count II.) The disputed property is located to the west of the property line dividing the property owned by the plaintiff from property owned by the defendant Mostyn, as Trustee, who disputes the plaintiffs claims to any portion of his property.

After a trial, without a jury, and based upon all of the credible evidence, the court makes the following findings of fact and rulings of law.

FINDINGS OF FACT

The Sea Pines Condominium III (the condominium) is located on land formerly owned by the Sea Pines School in Brewster. Sea Pines Condominium III is one of four condominiums developed from the Sea Pines School property. That property, consisting of 35.64 acres, was divided into four parcels of which approximately 14.629 was submitted to the provisions of G.L.c. 183A for Sea Pines Condominium III. The Sea Pines Condominium III was established by Master Deed pursuant to G.L.c. 183A, §8 dated June 17, 1977 and recorded in the Barnstable County Registry of Deeds Book 2531, Page 167.

The site of the condominium is located off Route 6A as shown in the plan of H.W. Moore Associates, Inc. dated February 7, 1977 appended to the Master Deed. The Sea Pines Condominium III Association is the organization of unit owners for the Sea Pines Condominium III. The four Sea Pines condominiums consolidated their management and maintenance functions into the Facilities Management Board (the FMB) in 1981. The FMB has been responsible for grounds maintenance and landscaping for all of the Sea Pines condominiums since that date. Prior to that, during the period from 1974 or 1975 to 1981, there was a grounds maintenance committee for the four Sea Pines Condominiums. Prior to 1974 or 1975, the grounds maintenance was handled by the developer.

In 1978, the land to the west of the condominium property was owned by Esther L. Steffens (the Steffens’ property). The Steffens’ property is shown on the Moore Associates Plan. From 1978 though 1999, the Steffens’ property was undeveloped. That property was sold in 1999 to Mostyn, as he is Trustee of the Lot 106-2 Dunn Road Realty Trust. Following the purchase by Mostyn, the Steffens’ property was developed. Mostyn built a road and large residence near the easterly boundary adjacent to the Sea Pines property and near the bluff overlooking Cape Cod Bay and the beach. The bluff is approximately twenty-five feet above the beach.

The Sea Pines Condominiums were developed by Corcoran, Mullens, and Jennison. The Sea Pines Condominium III consists of twelve units located in six separate buildings, each building having two units. Units DIO and D92 are located in the building closest to the bluff overlooking the beach and Cape Cod Bay. Units D8 and D7 are located in the building nearest to the west boundary and to the rear of DIO and D9. [157]*157Units D6 and D5 are located in the building on the westerly side of the property furthest from the bluff and to the rear of units D8 and D7. The three buildings in which these units are located are in a row which is roughly parallel to the western property line. Units D9, D7, and D5 are located on the side further from the boundary line between the condominium property and the Steffens’ property. See the Moore Associates plan.3

Development of the property on which the condominium was to be located began at some point prior to 1978. In 1978, the development began in earnest. At this time, the building with units D9 and DIO had been built. Railroad ties had been installed on the bluff to stabilize it until plants could take root. The buildings for units D7 and D8 had not yet been built. There was a triangular shaped lawn area with grass adjacent to D9/D10 ending in front of the place where D7/D8 building would be built. See Exhibits 9 and 10.4 The building for units D5 and D6 had been built by July of 1978. Unit D5 was ready for occupancy and was conveyed to Mr. and Mrs. Paul Villiere on July 13, 1978. At that time, the building for units D7 and D8 was still under construction.

By 1979, the units had been completed, the construction debris had been removed, and the lawn area had been completed. See Exhibit 11. The lawn extended from the front of the building with D5 and D6 to the bluff area. There was an area of low growing vegetation near to the west of the cleared bluff area which can be seen on Exhibit 32 in the area marked as the “trimmed area.” Once construction was completed, the low growing vegetation grew taller and stronger. It appears that the area was not trimmed in 1978 or 1979.

Residents of units D5 and D6, as well as other unit owners from the Sea Pines Condominium III, could walk over the lawn area to the bluff. In 1978 and 1979, the owners of units D5 and D6 had a view of Cape Cod Bay from the decks which were located on the first and second floors. Because unit D5 was furthest from the property line, the scope of the view from that unit was limited and diminished the further one walked eastward on the decks.

At the bluff area, there was low growing vegetation. The area on the westerly side is the disputed area for the purposes of this case. In 1978, the vegetation was low. However, over the years it grew. From some point in time, the disputed area was kept trimmed to approximately four feet until 1999. See Exhibit 32. In 1999, the construction of a home on the Steffens’ property precipitated this dispute. In August of 1999 this action was brought after the landscaper hired by the FMB was directed to stop pruning and trimming in the disputed area.

It is unclear when the trimming of the disputed area began. In 1978, the disputed area had been cleared to the sand for construction purposes. In 1979, following construction, the natural vegetation began to reassert itself. The area had oak brush. How long it took to grow more than three feet is not clear. However, the witness Villiere estimated that it took three to four years to grow to a height of at least three feet. Pruning and trimming was done by the FMB. Individual unit owners were prohibited from pruning or trimming trees, shrubs, or other vegetation. The first mention of pruning and trimming in the bluff and dunes area in the condominium budget is in late 1985, in reference to the budget and funding for 1986.

In 1998 when Frank Fiorentino purchased unit D5 from the Villieres, the disputed area was trimmed and kept low. A scrub pine tree with Cape Cod Bay in the background was visible from the decks of unit D5. In 1999, after construction began on the Steffens’ property and pruning was prohibited in the disputed area, Frank and Mary Fiorentino and Richard Parad and Judith Estroff, the owners of unit D8, brought this suit. Steffens was named as the sole defendant, and in October of 1999, Mostyn moved to intervene as the defendant. The motion was allowed. Joseph F. Corcoran, of Corcoran, Mullins, Jennison, Inc., has the beneficial interest in the trust to which Mostyn is trustee. His son, Joseph J. Corcoran, testified at trial as to his memories of the area.

Joseph J. Corcoran worked as a laborer at Sea Pines in 1977-78.

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21 Mass. L. Rptr. 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sea-pines-condominium-iii-assn-v-mostyn-masssuperct-2006.