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15-P-1343 Appeals Court

AM PROPERTIES, LLC vs. J&W SUMMIT AVE, LLC.

No. 15-P-1343.

Suffolk. May 17, 2016. - March 8, 2017.

Present: Cypher, Blake, & Henry, JJ.

Adverse Possession and Prescription. Real Property, Adverse 

possession.

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.

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 
2

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, 76 Mass. App. Ct. 245, 248 n.4 

(2010). To that end, we conclude that there is no genuine 

dispute of material fact1 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.

 

1 In many instances where J&W has "disputed" facts, it 

disputes the legal significance of those facts, not the facts 

themselves.
3

Background. 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 
4

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. 

 

2 The record does not provide an exact measurement of the 

difference in elevation or height of the railroad tie retaining 

wall.
5

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 

 

3 In addition to the evidence that compressors were 

installed on the strip prior to the December, 1993, opening of 

Bazaar, compressors were observed on the strip in, at the very 

least, 1998 and 2001, and were still located on the strip at the 

time of the summary judgment proceedings in 2015.
6

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 of the fence or 

sign, and both remained in place through the summary judgment 

proceedings. 

The only evidence that anyone connected with the J&W 

property accessed and used the strip is the testimony of a

property manager hired by J&W's predecessor to the effect that, 

once a year during his tenure from 1998 to 2011, he would 

inspect the concrete retaining wall.5 There is no evidence in 

the record that the property manager ever encountered, or was 

 

4 This cooler was removed in 1999. It was replaced in 2007, 

and remained in place on the strip through the time of the 

summary judgment proceedings.

5 The property manager also hired a cleaning company to 

occasionally "police" the J&W property, including the strip, for 

trash.
7

observed by, anyone connected with the AM property when he 

conducted these inspections.6

2. The passageway. There is no space between the building 

on the AM property that houses Bazaar and the buildings on the 

properties located immediately to the east and west. As such, 

there are only two means of ingress and egress from the AM 

property. The first is to and from the sidewalk along Beacon 

Street in front of the building. The second is via the 

passageway -- a five-foot-wide deeded easement to Summit Avenue 

that travels over the J&W property.7 

J&W's parking lot has been licensed for sixteen cars since 

June, 1993. In 1999, the parking lot was resurfaced and lines 

delineating the parking spaces were painted. Several of these

parking lines extended into the passageway. As a result, cars 

parked in those spaces extended into the passageway and 

obstructed travel along the easement. There is no evidence in 

 

6 Zelfond and certain employees and contractors connected 

with the AM property never observed anyone connected with the 

J&W property on the strip.

7 The deed to AM describes the easement rights: "Together 

with the right to use the five foot passageway on the North and 

Northwesterly side of said lot A-2 leading out to Summit Avenue 

in common with others entitled thereto." Slightly more than 

half way across the J&W property the five-foot-wide easement 

joins a ten-foot-wide easement before it empties onto Summit 

Avenue. The ten-foot-wide easement does not otherwise appear to 

be at issue in this case.
8

the record that there were painted parking lines on the surface 

of the parking lot prior to 1999.8

Discussion. 1. AM's adverse possession of the strip. 

"Title by adverse possession can be acquired only by proof of 

nonpermissive use which is actual, open, notorious, exclusive 

and adverse for twenty years." Ryan v. Stavros, 348 Mass. 251, 

262 (1964). "The burden of proof in any adverse possession case 

rests on the claimant and extends to all of the necessary 

elements of such possession." Sea Pines Condominium III Assn. 

v. Steffens, 61 Mass. App. Ct. 838, 847 (2004). To satisfy the 

twenty-year requirement, a claimant may "tack" onto its own 

period of use a period during which a predecessor in privity 

asserted an adverse right to the property. See Shoer v. Daffe, 

337 Mass. 420, 424 (1958).

a. Tacking on a period of tenancy. The motion judge 

concluded that AM could satisfy the twenty-year adverse 

possession requirement as to the strip by "tacking" together the 

use of the strip during AM's fourteen years of ownership of the

property on which Bazaar was located, and IGF's prior use of the 

strip for six years while it occupied the property as a tenant. 

J&W argues that such tacking is not permissible unless the 

 

8 J&W's former property manager recalled that, even before

the lines were painted in 1999, cars would park within the 

bounds of the passageway. His involvement with the J&W 

property, however, dated back only to 1998.
9

landlord during IGF's period of tenancy had possession of the 

disputed property, or claimed title to it, and included it in 

the lease to IGF. In support of this proposition, J&W cites to

Holmes v. Turner's Falls Co., 150 Mass. 535 (1890) (Turner's 

Falls), and Holmes v. Johnson, 324 Mass. 450 (1949) (Johnson). 

The rule enunciated in those two cases, however, has been 

implicitly overruled. See Ottavia v. Savarese, 338 Mass. 330 

(1959); Kendall v. Selvaggio, 413 Mass. 619 (1992); Totman v. 

Malloy, 431 Mass. 143 (2000). The argument, therefore, cannot 

be sustained.

In Turner's Falls, the Supreme Judicial Court first 

addressed the tacking of a period of tenancy for purposes of 

adverse possession and held:

"If one person disseises another of land, and while in 

possession leases the land to a tenant who continues to 

occupy it under his lease, the adverse possession of the 

tenant may be tacked to that of the landlord, and the 

possession of the tenant may be said to be that of the 

landlord; but if the landlord never had possession of the 

land, nor claimed title to it, and did not include it in 

the lease, the possession of the tenant beyond the 

boundaries of the land contained in the lease is not the 

possession of the landlord, even although the tenant 

believes that he is occupying only the land demised."

150 Mass. at 547.

Almost sixty years later, the issue came to the fore again 

in Johnson. There, the plaintiff's mother had owned their 

property, and the plaintiff and her family had openly used the 

adjacent, disputed strip of land as though it were their own, 
10

for a period of thirteen to fifteen years. 324 Mass. at 451-

452. Subsequently, after the bank holding her mother's mortgage 

foreclosed, the plaintiff continued both to occupy the property 

as a tenant of the bank and use and possess the disputed strip

as her own. Ibid. Then, after approximately four years as a 

tenant, the plaintiff purchased the property back from the bank 

and continued to live there, using the disputed strip, for some 

seven years more, at which point the adjoining landowner, the 

defendant Johnson, entered the strip and asserted ownership. 

Ibid.

According to the Supreme Judicial Court, the "question for 

decision [in Johnson was] whether the plaintiff has shown that 

the possession of her family and herself was under a continuous

claim of right or title for twenty years." Id. at 453. The 

court answered that question in the negative and held:

"[W]hen title to [the leased property] was in the bank and 

the plaintiff was its tenant, [the tenant's] possession of 

the disputed area was under a claim of right to hold it not 

in fee but only as a tenant of the bank. As the bank never 

had possession of the disputed area, nor claimed title to 

it, and did not include it in its letting to the tenant, 

the possession of the tenant beyond the boundaries of [the 

lessor's premises] cannot be considered to be the 

possession of the [lessor]. Holmes v. Turner's Falls Co., 

150 Mass. [at] 547; Elwell v. Barbrick, 279 Mass. 272, 277

[1932]. As the continuity of possession under a claim of 

right to the title was interrupted, the conclusion of the 

master that the plaintiff has not acquired title by adverse 

possession was correct."

Id. at 454-455.
11

Ten years later, however, the Supreme Judicial Court 

decided Ottavia, wherein it acknowledged that the rule in 

Johnson had been "severely criticized" and that "there seems to 

be no justification for requiring a claim of right or title as 

essential to an adverse possession." Ottavia, 338 Mass. at 333 

(quotation omitted). Instead, the court shifted the focus to 

nonpermissive use, stating:

"'The great majority of the cases establish convincingly 

that the alleged requirements of claim of title and of 

hostility of possession mean only that the possessor must 

use and enjoy the property continuously for the required 

period as the average owner would use it, without the 

consent of the true owner and therefore in actual hostility 

to him irrespective of the possessor's actual state of mind 

or intent.' Am. Law of Property, § 15.4, pp. 776-777. 

From the standpoint of the true owner, the purpose of the 

various requirements of adverse possession . . . is to put 

him on notice of the hostile activity of the possession so 

that he, the owner, may have an opportunity to take steps 

to vindicate his rights by legal action. Where a claim of 

right is made or where an intention to oust exists and is 

communicated or is open and notorious, the purpose of 

notice is satisfied, for it is likely that the encroachment 

and the fact of its hostility will come to the attention of 

the true owner. The nonexistence of a claim of right or 

intent to oust does not, however, necessarily preclude 

notice. Where the user has acted, without license or 

permission of the true owner, in a manner inconsistent with 

the true owner's rights, the acts alone (without any 

explicit claim of right or intent to dispossess) may be 

sufficient to put the true owner on notice of the 

nonpermissive use."

Id. at 333-334.

The court subsequently elaborated upon this shift. First, 

in Kendall, the court cited Ottavia and stated that, "[i]nstead 

of focusing on what the parties said twenty or more years ago, 
12

we have held repeatedly that courts must look to the physical 

facts of entry and possession as evidence of an intent to occupy 

and to hold property as of right. . . . The justification for 

this position is that, if inconsistent with the true owner's 

rights, the possessor's actions and not his intent provide 

notice of nonpermissive use to the true owner." Kendall, 413 

Mass. at 624. Then, in Totman, the court cited Ottavia and 

Kendall and declared that "[t]he guiding principle behind the 

elements of adverse possession is not to ascertain the intent or 

state of mind of the adverse claimant, but rather to provide 

notice to the true owner, allowing for the legal vindication of 

property rights." Totman, 431 Mass. at 145.

Whereas Turner's Falls and Johnson focused on whether the 

landlords in those cases had asserted a technical claim to title 

and their intent as to the disputed area,

9 Ottavia shifted the 

focus to the nature and extent of the actual possessor's use of 

the disputed property and whether that use is sufficient to put 

a reasonable owner on notice of the hostile activity and thus 

 

9 The motion judge concluded that AM satisfied the rule of

Turner's Falls and Johnson because, based upon the topography of 

the strip, located significantly below the grade of the balance 

of the J&W property and on nearly the same grade as the AM 

property, as well as a clause in the lease that required IGF to 

keep the leased premises in a clean and sanitary manner, it 

could be implied that the landlord had claimed title to the 

strip and intended it to be included under the lease. Given our 

ruling, that issue is moot.
13

afford the owner an opportunity to act to vindicate his or her 

rights. Ottavia, 338 Mass. at 333-334.

Here, therefore, the focus is not on whether the landlord 

had possession of the strip, claimed title to it, or included it 

in the lease to IGF. Rather, the focus is properly on the 

nature and extent to which IGF used the strip and whether that 

was sufficient to put a reasonable owner of the J&W property on 

notice. The undisputed facts in the record establish that, 

irrespective of IGF's landlord's actual state of mind or intent, 

IGF used the strip "as the average owner would use it," Kendall, 

413 Mass. at 624, throughout the tenancy, without the consent of

J&W, the true owner. IGF's use was such that it should have 

come to the attention of the owner of the J&W property.

Of course, the tacking analysis does not end there, because 

privity between AM and IGF, as well as between AM and IVA is 

also required. See Shoer, 337 Mass. at 424. "To produce the 

necessary privity [for tacking of successive periods of adverse 

use] there must be some relation between the successive users of 

such a nature that the use by the earlier user can fairly be 

said to be made for the later user, or there must be such a 

relation between them that the later user can be fairly regarded 

as the successor to the earlier one. Am. Law of Property, 

§ 8.59." Ryan, 348 Mass. at 264. As an initial matter, we note 

that J&W has not challenged whether privity exists between AM 
14

and the other two entities. Nor could it. AM, IGF, and IVA 

were all formed by Zelfond and were connected, as either 

landlord or tenant, with the operation, or preparation to 

operate Bazaar on the AM property for more than twenty years. 

As matter of law, therefore, privity exists.

b. Exclusivity of possession of the strip. J&W also 

argues that there is a genuine dispute as to whether AM and its 

predecessor, IGF, maintained exclusive possession of the strip 

throughout the required twenty-year period. J&W makes two 

claims. First, J&W claims that IGF's earliest uses of the 

property were not sufficient to support a claim of adverse 

possession. We disagree. The summary judgment record amply 

supports IGF's use of the property commencing in August, 1993. 

Second, J&W argues that exclusive possession of the strip 

was interrupted by activities of J&W's property manager from 

1998 to 2011. However, "[n]ot every act by the owner on the 

land interrupts actual adverse possession." Rothery v. 

MacDonald, 329 Mass. 238, 241 (1952). "To stop the running of 

the [prescriptive period], the owner's entry, with few 

exceptions [not applicable here], must be done openly on the 

land, so as to give notice of the interruption." Pugatch v. 

Stoloff, 41 Mass. App. Ct. 536, 541-542 (1996). Even accepting 

that the J&W property manager actually stepped onto the strip 
15

when he conducted his inspections,10 these inspections were so 

infrequent and innocuous that they cannot be deemed to have put 

AM or its predecessor on notice that the owner of the J&W 

property was purporting to exercise dominion and control over 

that disputed piece of property.11 In fact, the evidence shows 

that no one connected with the AM property ever saw the J&W 

property manager conduct these inspections. J&W's claim of 

error, therefore, cannot be sustained.

In sum, as detailed above, beginning in August, 1993, and 

continuing for more than twenty years thereafter,12 AM and its 

predecessor engaged in significant and continual activity on the 

strip. The activity was both inconsistent with the rights of 

the owners of the J&W property and consistent with a claim of 

dominion and control over the strip by AM and its predecessor. 

The activity was open and notorious and sufficient to put all of 

the world, including the owners of the J&W property, on notice 

 

10 During his inspections, the J&W property manager usually 

did not venture much further than the set of stairs that lead 

down to the strip. 

11 With respect to the cleaning company the J&W property 

manager hired to occasionally "police" the strip for trash, even 

if we infer that the cleaning company employees actually went on 

the strip, despite the lack of direct evidence to that effect, 

such activity was so infrequent as to be immaterial. See note 

6, supra.

12 It is immaterial whether one instead uses September 27, 

2013, the date of the filing of AM's complaint, as the trigger 

date for calculating the twenty-year period.
16

of the nonpermissive use. Based upon the undisputed facts, 

therefore, AM established the necessary elements for adverse 

possession of the strip.

2. J&W's adverse possession of the passageway. J&W argues 

that the judge erroneously granted summary judgment in AM's 

favor on J&W's claim of adverse possession of the passageway. 

Specifically, J&W contends that the judge erroneously concluded 

that J&W had "offered no evidence suggesting any adverse use of 

the [p]assageway . . . prior to 1999." J&W relies on the 

testimony of its property manager to the effect that cars were 

parked within the bounds of the passageway both before and after 

the parking space lines were painted on the parking lot in 1999. 

As noted previously, the property manager's tenure spanned 1998 

to 2011 only. As a result, he could not provide testimony as to 

what transpired at the J&W property and parking lot prior to 

that time. J&W further notes that the parking lot has been 

licensed for sixteen parking spaces since at least June, 1993. 

That does not establish, however, that the spaces were 

configured in a manner that caused cars to block the passageway 

prior to 1999. Absent such evidence, J&W is unable to establish 

adverse use of the passageway for the requisite twenty-year 

period. The claim for adverse possession of the passageway, 

therefore, fails as a matter of law.

Judgment affirmed.