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AM Properties, LLC v. J&W Summit Ave, LLC

Appeals Court of Massachusetts, Suffolk

March 8, 2017


          Heard: May 17, 2016.

         Civil action commenced in the Land Court Department on September 27, 2013.

         The case was heard by Alexander H. Sands, III, J., on motions for summary judgment.

          Joseph L. Bierwirth, Jr. (Ryan P. McManus also present) for the defendant.

          Ann M. Sobolewski for the plaintiff.

          Present: Cypher, Blake, & Henry, JJ.

          HENRY, J.

         The 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.

         As is 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[1] 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.


         The 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 Bazaar.

         The J&W property is north of the AM property and borders on Summit Avenue. Most of the J&W property is occupied by a parking lot.

         1. The strip.

         At 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, [2] 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 Summit Avenue.

         a. The tenancy.

         The 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.

         b. Use of the strip.

         The 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.[3] Beginning in 1995, IVA or AM also installed and began frequently accessing a walk-in cooler on the strip. [4]

         In 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 installation ...

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