AM Properties, LLC v. J&W Summit Ave, LLC
AC 15-P-1343
| Mass. App. Ct. | Mar 8, 2017Background
- AM Properties (AM) operates Bazaar at 1432/1432A Beacon St. since Dec. 1993; predecessor tenant IGF began occupancy in Aug. 1993; IVA later operated the store; Zelfond formed and controlled these entities.
- A narrow rectangular strip of land lies immediately north of AM’s rear boundary on J&W Summit Ave’s property; it is lower than J&W’s parking lot, accessible by stairs, and bounded by retaining walls.
- IGF/IVA/AM used the strip continuously from Aug. 1993 onward for staging, storage, maintenance, compressors, and a walk-in cooler; AM installed a fence and “No trespassing” sign in 2007.
- J&W’s only asserted use was infrequent inspections by its property manager (approx. yearly, 1998–2011) and occasional cleaning hires; no evidence of objection to AM’s use.
- A five-foot deeded passageway (easement) across J&W’s lot provides alternate access from AM to Summit Ave; J&W resurfaced and repainted parking spaces in 1999, which thereafter intruded into the passageway.
- Land Court granted summary judgment to AM on (1) adverse possession of the strip (tacking IGF’s tenancy onto AM’s possession) and (2) denied J&W adverse possession of the passageway; J&W appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AM may tack IGF’s ~6 years of nonpermissive tenant use to AM’s ownership period to meet the 20-year adverse possession requirement | AM: IGF’s use was nonpermissive, open, notorious, exclusive and in privity with AM, so tacking is allowed | J&W: Tacking of tenancy is impermissible unless landlord possessed or claimed title or included the land in the lease | Held for AM: Court applies modern Massachusetts law (Ottavia/Kendall/Totman) focusing on nonpermissive use and notice to owner; privity exists, so tacking permitted |
| Whether IGF/AM’s possession was exclusive (interruption by J&W’s manager) | AM: J&W’s annual/infrequent inspections and occasional policing do not interrupt adverse possession | J&W: Property manager’s inspections and cleaning hires show owner activity interrupting exclusivity | Held for AM: Owner’s sporadic, innocuous inspections and occasional cleaning are insufficient to interrupt adverse possession |
| Whether AM established the remaining elements of adverse possession (actual, open, notorious, hostile for 20 years) | AM: Continuous and visible use since 1993 demonstrates all elements | J&W: Disputes sufficiency of early use and exclusivity | Held for AM: Undisputed facts satisfy elements as a matter of law |
| Whether J&W acquired title by adverse possession to the five‑foot passageway | J&W: Cars parked in lot (pre-1999 per manager) obstructed and adversely possessed the passageway | AM: No reliable evidence of continuous adverse use for 20 years prior to 2015 | Held for AM: J&W failed to prove 20 years of adverse use; adverse possession claim fails |
Key Cases Cited
- Ryan v. Stavros, 348 Mass. 251 (1964) (elements of adverse possession require 20 years of actual, open, notorious, exclusive and adverse use)
- Shoer v. Daffe, 337 Mass. 420 (1958) (tacking requires privity between successive possessors)
- Holmes v. Turner's Falls Co., 150 Mass. 535 (1890) (historical rule limiting tenant tacking when landlord never possessed or claimed the land)
- Holmes v. Johnson, 324 Mass. 450 (1949) (applied Turner's Falls to deny tacking where landlord did not claim or include disputed land)
- Ottavia v. Savarese, 338 Mass. 330 (1959) (shifted focus to nonpermissive use and notice rather than formal claim of title)
- Kendall v. Selvaggio, 413 Mass. 619 (1992) (courts should look to physical facts of possession as evidence of hostile use)
- Totman v. Malloy, 431 Mass. 143 (2000) (elements of adverse possession are aimed at providing notice to owner, not proving intent)