Stanley S. Szawlowski v. Szawlowski Realty, Inc.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1107

STANLEY S. SZAWLOWSKI

vs.

SZAWLOWSKI REALTY, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This action concerns ownership of a farmhouse (Christian

Lane house) and certain surrounding areas that have been

occupied since 1985 by Stanley E. Szawlowski (Stanley Sr.), his

wife, or his children, including the plaintiff, Stanley S.

Szawlowski (Stanley Jr.).1 The title owner of the property is

the defendant, Szawlowski Realty, Inc. (SRI), a close

corporation of which Stanley Sr. was an officer and shareholder.

Following Stanley Sr.'s death, SRI sought to evict Stanley Jr.,

and Stanley Jr. brought this action asserting that he had

1Because they share a last name, we refer to the members of
the Szawlowski family by their first names, followed, where
necessary, by a suffix.
acquired ownership of the property by adverse possession. After

a bench trial, a judge of the Land Court found that Stanley Jr.

had acquired by adverse possession title to the Christian Lane

house and immediate surrounding portions of the land

(residential area), but that title in the remainder of the

fifteen-acre parcel (remaining area) stayed with SRI.

On appeal, SRI argues that Stanley Jr. failed to establish

ownership of the Christian Lane house and residential area by

adverse possession; the judge erred in not applying a heightened

legal standard; and certain evidence should not have been

excluded during trial. We need not address this last point,

because we conclude that the evidence was insufficient to

support Stanley Jr.'s claim of title to the Christian Lane house

and residential area by adverse possession. As such, we reverse

those portions of the judgment and remand for entry of a new

judgment consistent with our decision. The judgment is

otherwise affirmed.

Background. We summarize the facts as set forth in the

judge's findings, supplemented by uncontroverted facts drawn

from the exhibits.

1. Family business and properties. The Szawlowski family

has operated a potato farming business for over a century. By

the 1960s, that family business was run by four Szawlowski

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brothers -- Frank, Chester, Stanley Sr., and John. The brothers

initially ran the business as a partnership with each having a

twenty-five percent interest; however, from 1984 to 2008, the

brothers formed five limited liability entities, including SRI,

through which they operated the business. Each brother had a

twenty-five percent interest in each of these entities.

The Szawlowski family had an unspoken and unwritten

agreement that family members who worked for the business would

be provided with housing. To that end, at some point in time,

each of the four brothers and their families lived in one of

several apartments on Henry Street in the city of Northampton

that were owned by the family. None of the brothers paid rent.

By 1980, Frank, Chester, and John no longer lived in the Henry

Street apartments because each had purchased and moved into his

own home. The family business paid many of the expenses

associated with those three brothers' houses. Stanley Sr. did

not own a home. Instead, he lived with his mother in a house on

Main Street in the town of Hatfield (Main Street house) until

1980, when he moved to a Henry Street apartment. That same

year, Stanley Sr. married his wife. While living in the Henry

Street apartment, the couple welcomed two children -- the

plaintiff, Stanley Jr., in 1981, and Joseph in 1983.

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2. Tobacco Farm. In 1985, in connection with their

business, the brothers purchased land in the town of Whatley,

known as the "Tobacco Farm." The Tobacco Farm included four

nonabutting tracts of land totaling over seventy-four acres. At

issue here is tract one, a fifteen-acre tract abutting Christian

Lane that contains several structures, including the 3,165

square-foot Christian Lane house, four barns, and various

outbuildings.

After the 1985 purchase, the brothers owned the Tobacco

Farm as joint tenants with each holding an undivided interest in

the property, and they paid the expenses for the property. At

that time, with John's encouragement, Stanley Sr. and his family2

moved from the Henry Street apartment into the Christian Lane

house. Roughly five years later in 1990, the brothers,

including Stanley Sr., formed the defendant corporation, SRI, to

"own real estate and manage the same for farming purposes." The

brothers deeded the Tobacco Farm, including the Christian Lane

house, to SRI.

After that change in ownership, SRI paid the property

taxes, utility bills, and insurance premiums for the Tobacco

Farm, including tract one and the Christian Lane house.

2 We refer to Stanley Sr.'s wife and two children as his
family throughout this decision.

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However, Stanley Sr. and his family continued to make all

maintenance and renovation decisions for the Christian Lane

house, without consulting the brothers. Stanley Sr. mainly paid

for the repairs and renovations but occasionally received

financial support from SRI, in a manner similar to the support

the other brothers received for their homes.

Stanley Sr. and his family were the only people with keys

to the Christian Lane house, and no one entered or used the

house without their permission. Along with the Christian Lane

house, Stanley Sr. and his family also were the only users of

the surrounding yard and certain other structures, namely the

house's driveway, a small brick garage, an "icehouse," a dog

shed, and a chicken coop (residential area). Beyond the

residential area, tract one also included a four-acre cultivated

field; eight acres of wooded, swampy, or flooded land; and a

pasture (remaining area).

3. 1999 meeting and subsequent conduct. In the 1990s, the

brothers met daily to discuss the business. At times, other

members of the family joined those meetings. During one such

meeting in 1999, Frank and Chester suggested that Stanley Sr.

move with his family from the Christian Lane house to the Main

Street house. Several years earlier, the brothers' mother had

deeded the Main Street house to Stanley Sr. while reserving a

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life estate for herself, and she had recently moved out of that

house, leaving it unoccupied.

At the 1999 meeting, Stanley Sr. angrily refused to move

his family to the Main Street house. He insisted that the

Christian Lane house was "his" house as compensation for years

of unpaid work for the family business and because he had been

paying many bills for the property. Despite some of the

brothers' demands that Stanley Sr. vacate the Christian Lane

house, Stanley Sr. remained there even after their mother's

death in 2000, when the Main Street house was no longer subject

to the mother's life estate.

In November 2000 and again in June 2006, SRI granted open-

end mortgages on the Tobacco Farm, including tract one and the

Christian Lane house, to First Pioneer Farm Credit, ACA. Frank

signed the mortgages as SRI's president and Stanley Sr. signed

them as SRI's treasurer. Both mortgages identified SRI as the

borrower. In the mortgages, SRI covenanted that it had "good

and marketable title in fee simple to the Mortgaged Premises"

and would "defend such title against all claims and demands."

SRI also promised that after the date each of the two mortgages

was executed, "'none of the following actions shall be taken or

permitted without Lender's prior consent,' including

'[a]cquisition of legal or equitable title to all or any part of

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the Mortgaged Premises by anyone other than those in whom title

is vested on the date hereof.'" SRI made all principal and

interest payments on both mortgages.

During this time, Stanley Sr. and his family continued to

live in the Christian Lane house. In 2002, Joseph graduated

from high school and moved out of the house. In 2003, Stanley

Sr.'s wife passed away, leaving in the Christian Lane house

Stanley Sr. and Stanley Jr., who was then twenty-two years old

and working for the family businesses. Stanley Sr., Stanley

Jr., and Joseph continued to pay some expenses for the house, as

did SRI.

In 2007, Stanley, Sr. moved to the Main Street house, but

Stanley Jr. remained in the Christian Lane house. In 2008,

Shelley Szawlowski, who is Frank's daughter, took over

management of SRI's day-to-day operations. Shelley discussed

Stanley Jr.'s occupation of the Christian Lane house with his

brother, Joseph, but she failed to convince Stanley Jr. to move

out of the house.

In 2012, Stanley Jr.'s girlfriend (whom he later married)

moved into the Christian Lane house. The following year,

Stanley Jr. stopped working for the family businesses due to

work-related injuries, but he remained with his girlfriend at

the Christian Lane house. In 2015, John, Frank and Chester,

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without Stanley Sr. present, discussed Stanley Jr.'s continued

occupancy of the Christian Lane house. During that meeting,

John slammed his fist and said, "Nothing's going to happen until

[Stanley Sr.] is dead." In 2020, Stanley Sr. passed away.

4. Litigation and trial. In October 2021, SRI commenced a

summary process proceeding against Stanley Jr. and his wife, to

evict them from the Christian Lane house (summary process

action). The following month, Stanley Jr. brought this action

in the Land Court, for declaratory and injunctive relief based

on a theory that he had acquired title to tract one by adverse

possession. SRI filed counterclaims for slander of title and

trespass; the slander of title counterclaim was later dismissed.

Following a three-day trial, including a view of the

property, the judge found that from 1985 to 1990, the occupation

of the Christian Lane house and residential area was not adverse

because Stanley Sr. was a coowner with the right to occupy the

property. The judge further found no adverse use from 1990 to

1999, because even though SRI owned the property, Stanley Sr.

and his family had previously lawfully entered the property, no

evidence was presented of a disagreement between the brothers

during this time concerning that use, and Stanley Sr. did not

act contrary to his duties as a shareholder of SRI through his

occupancy of the Christian Lane house and the residential area.

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However, the judge found that following the 1999 meeting,

Stanley Sr.'s statement that the Christian Lane house was "his"

sufficiently put SRI on notice that the use of the property by

Stanley Sr. and his family was adverse and nonpermissive.

Relatedly, the judge held as "a question of apparent first

impression under Massachusetts law" that a shareholder of a

close corporation and his family may acquire the corporation's

real property by adverse possession.

Ultimately, the judge held that Stanley Jr. had acquired

title to the Christian Lane house and the residential area by

adverse possession. The judge also found that the remaining

area of tract one was owned by SRI. Judgment entered

(1) declaring that Stanley Jr. had acquired title to the

Christian Lane house and residential area by adverse possession,

(2) enjoining SRI or its agents from entering the Christian Lane

house and residential area without Stanley Jr.'s permission, and

(3) requiring Stanley Jr. to file a plan with the registry of

deeds depicting the boundaries of his property. The judge

further declared that Stanley Jr. did not acquire any other land

by adverse possession and enjoined Stanley Jr. from entering the

remaining area without SRI's permission.

Discussion. "[W]e accept the judge's findings of fact as

true unless they are clearly erroneous." Kendall v. Selvaggio,

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413 Mass. 619, 620 (1992). "A finding is 'clearly erroneous'

when although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed" (citation

omitted). Id. at 620-621. "On the other hand, to ensure that

the ultimate findings and conclusions are consistent with the

law, we scrutinize without deference the legal standard which

the judge applied to the facts." Id. at 621. "Thus, the

'clearly erroneous' standard of appellate review does not

protect findings of fact or conclusions based on incorrect legal

standards." Id.

A party claiming title to land through adverse possession

has the burden of proving "actual, open, exclusive, and

nonpermissive use for a continuous period of twenty years."

Totman v. Malloy, 431 Mass. 143, 145 (2000). See Lawrence v.

Concord, 439 Mass. 416, 421 (2003). "Whether a use is

nonpermissive depends on many circumstances, including the

character of the land, who benefited from the use of the land,

the way the land was held and maintained, and the nature of the

individual relationship between the parties claiming ownership."

Totman, supra. "Whether, in a particular case, these elements

are sufficiently shown is essentially a question of fact."

Kershaw v. Zecchini, 342 Mass. 318, 320 (1961).

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In cases where the putative adverse possessor first

occupies the property with explicit permission from the true

owner, the possessor bears "a heavy burden . . . to show by

clear evidence that the use has shifted at some point from

permissive to adverse, so as to put the owner on clear notice

that [it] should take steps to protect [its] rights." Begg v.

Ganson, 34 Mass. App. Ct. 217, 221 (1993). Moreover, "[w]here a

special relationship exists[,] the putative adverse possessor is

required to give actual notice to the true owner of the change

in status from permissive to adverse." Lawrence, 439 Mass. at

424, citing Restatement (First) of Property § 458 comment j

(1944) (Restatement). The relationship between a shareholder

and officer of a close corporation and the corporation is a

"special relationship," such that, at a minimum (though we do

not decide the question, see note 8, infra), actual notice is

required.3 See Restatement § 458 comment j ("Where a user of

3 The parties agree that a heightened legal standard applies
in the circumstances here, but dispute whether the trial judge
properly applied that standard. Although the trial judge cited
Lawrence, 439 Mass. at 422, and Begg, 34 Mass. App. Ct. at 221,
in his decision, he relied on two cases from other jurisdictions
in articulating the applicable standard. Specifically, the
judge concluded that officers and directors of a close
corporation must give "'express notice' to the corporation that
they are acting adversely." See Perivoliotis v. Pierson, 167
Ill. App. 3d 259, 263-264 (1988); Leigh v. Howard, 93 A. 680,
681 (N.J. Sup. Ct. 1915). We think the standards of "clear
notice," "actual notice," and "express notice" are sufficiently

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land and one having an interest affected by the use have a

relationship to each other sufficient in itself to justify the

use, the use is not adverse unless knowledge of its adverse

character is had by the one whose interest is affected").

On appeal, Stanley Jr. argues that he obtained title to the

Christian Lane house and residential area independent of his

father based on his use of the property for twenty years as an

adult. Where Stanley Jr.'s use of the property was at first

permissive, he must show conduct that put SRI on "clear notice"

that his use of the property had shifted from permissive to

adverse. Begg, 34 Mass. App. Ct. at 221. To satisfy his

burden, Stanley Jr. relies on his continued occupancy of the

Christian Lane house following his father's statement at the

1999 meeting that the Christian Lane house was "his" (i.e.,

Stanley Sr.'s) house. Though Stanley Jr. was present at that

meeting, he did not articulate a position concerning his use of

the property at the meeting, or at any time thereafter until

2008, when he refused Shelley's request to move out. Stanley

Jr. contends that his continued occupancy of the Christian Lane

house after the 1999 meeting is tantamount to an adoption of

similar that we do not find the judge's articulation of the
standard to be legal error. However, in our discussion, we rely
on Massachusetts case law.

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Stanley Sr.'s comments to SRI and that this adoption was

sufficient to put SRI on notice. We do not agree with Stanley

Jr.'s argument that he adopted his father's statements solely

through his presence at the meeting and his continued occupancy

with his father. Cf. Hunt v. Hunt, 44 Mass. 175, 183 (1841)

(son who lived on land and managed farm owned by father did not

acquire title from father by adverse possession). We conclude

that Stanley Jr. failed to satisfy his "heavy burden" to show

that his actions established "clear notice that [SRI] should

take steps to protect [its] rights." Begg, supra.

If Stanley Jr. were to instead rely on his father's conduct

at the 1999 meeting and thereafter to establish his claim, it

would still fail. Stanley Jr. may "satisfy the twenty-year

requirement [by tacking] onto [his] own period of use a period

during which a predecessor in privity asserted an adverse right

to the property."4 AM Props., LLC v. J&W Summit Ave, LLC, 91

Mass. App. Ct. 150, 154 (2017). Even if we assume arguendo that

Stanley Sr.'s refusal to vacate the property satisfied the

"actual notice" standard that applied to corporate officers

attempting to claim the property of their fiduciary, Stanley

4 We acknowledge Stanley Jr.'s explicit denial that he was
"tacking" his claim to his father's. However, given the
extensive treatment both parties gave to this issue, we elect to
address it.

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Jr.'s tacking claim fails because of his father's conduct

following the 1999 meeting.5 See Lawrence, 439 Mass. at 424.

Stanley Sr.'s subsequent conduct -- executing mortgages on

the Christian Lane house and residential area wherein he

represented that (1) SRI held the "good and marketable title in

fee simple" to the property, (2) SRI would defend its title

against any claim, and (3) no one other than SRI would take

action to acquire title without the lender's consent --

abrogated his 1999 assertion that the property was his.6 See

Bodman v. Martha's Vineyard Nat'l Bank of Tisbury, 330 Mass.

125, 130–131 (1953) (possessor's execution of trust agreement

that assented to bank holding title as trustee was interruption

of any adverse holding). Cf. Moran v. Gala, 66 Mass. App. Ct.

135, 139 (2006) (attorney who represented sellers of neighboring

5 Because we conclude that Stanley Sr.'s execution of the
mortgages would have abrogated his claim for adverse possession,
we need not reach the question whether his actions at the 1999
meeting were sufficient to provide "actual notice" to SRI that
one of its corporate officers was acting adverse to its
interests. See Lawrence, 439 Mass. at 424.

6 Stanley Jr. argues that the issue of the legal effect of
the mortgages was not raised in the trial court and, therefore,
is waived. We disagree. SRI's statement in its pretrial brief
was sufficient to preserve the issue for appeal -- namely, that
"Stanley Sr[.] signed notarized mortgage instruments in 2000 and
2006 as treasurer of SRI, explicitly acknowledging SRI ownership
of [tract one] and implicitly acknowledging his and [Stanley
Jr.]'s permissive use and occupancy of [tract one's] Christian
Lane House."

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property estopped from succeeding on adverse possession claim

against purchasers that "'squarely contradict[ed]' the position

[that the attorney] took as counsel for and as a representative

of the sellers," including in preparing deed and purchase and

sale agreement). Because Stanley Jr. does not point to conduct

immediately following the execution of the 2000 and 2006

mortgages establishing notice to SRI of his continued adverse

possession of the property, we conclude that Stanley Jr. cannot

tack onto any period of adverse possession established by his

father.7

Conclusion. So much of the judgment as concerns Stanley

Jr.'s ownership by adverse possession of the Christian Lane

house and residential area is reversed, the related injunction

is vacated, and the case is remanded for entry of a new

7 Stanley Jr. did not appeal from the judgment and makes no
argument about the portions concerning the remaining area, so we
affirm without further discussion.

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declaratory judgment on that issue consistent with our decision.

The judgment is otherwise affirmed.8

So ordered.

By the Court (Desmond,
Smyth & Tan, JJ.9),

Clerk

Entered: September 5, 2025.

8 In so holding, we need not decide the question whether a
shareholder and officer of a close corporation is foreclosed
from acquiring a corporation's property by adverse possession as
a matter of law. Here, and considering the relationships of the
parties claiming ownership in determining whether the use was
adverse or permissive, see Totman, 431 Mass. at 145, we conclude
that neither Stanley Jr.'s nor Stanley Sr.'s use was adverse for
the requisite period.

9 The panelists are listed in order of seniority.

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