Heard: May 17, 2016.
action commenced in the Land Court Department on
September 27, 2013.
case was heard by Alexander H. Sands, III, J., on motions for
L. Bierwirth, Jr. (Ryan P. McManus also present) for the
Sobolewski for the plaintiff.
Present: Cypher, Blake, & Henry, JJ.
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 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.
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, 7 6 Mass.App.Ct. 245,
248 n.4 (2010). To that end, we conclude that there is no
genuine dispute of material fact 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.
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
J&W property is north of the AM property and borders on
Summit Avenue. Most of the J&W property is occupied by a
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 property,  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
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.
Use of the strip.
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. Beginning in 1995, IVA or AM also
installed and began frequently accessing a walk-in cooler on
the strip. 
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