Carla Monteiro v. Shanti Acquisitions, LLC.

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

22-P-32

CARLA MONTEIRO

vs.

SHANTI ACQUISITIONS, LLC. 1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Shanti Acquisitions, LLC, appeals from a Land

Court judgment quieting title to the property located at 48

Hansborough Street, in the Dorchester neighborhood of Boston

(locus), in plaintiff Carla Monteiro and declaring that she

established title to that property by reason of adverse

possession. The defendant argues on appeal that the plaintiff

did not carry her burden of demonstrating open and notorious use

of the locus or that her use was exclusive and adverse. The

defendant also argues that the plaintiff did not sufficiently

identify the locus boundaries. We affirm.

1 As is our usual practice, we take the parties' names as they
appear in the operative complaint.
Background. The judge held a two-day virtual trial and

conducted a view of the locus and adjacent properties. We

summarize the facts that the judge could have found.

The locus is an undeveloped lot of approximately 4,000

square feet. The western boundary of the locus abuts two other

lots, 476 and 480 Harvard Street. The Poindexter family, the

plaintiff's predecessor in interest, resided at 480 Harvard

Street beginning in 1968. Sometime after 1971 a fire destroyed

the adjacent home on 476 Harvard Street, after which the

residents vacated the property. The Watts family occupied a

house on the locus until it burned down in 1978. The

Poindexters thereafter took possession of both Harvard Street

lots and the locus. In 1996, the City of Boston granted formal

title of 476 Harvard Street to the Poindexters in exchange for

nominal consideration. That year, the Poindexters also

installed a fence that enclosed both Harvard Street properties

and the locus.

At trial, members of the Poindexter family testified about

their use of the locus before it was sold to the plaintiff in

2010. Margaret Evans was about thirteen when the Poindexters

moved into 480 Harvard Street. Her mother, Nellie Poindexter,

maintained a garden on the locus from 1999 to 2003. Thomas

Poindexter was sixteen when they moved in. He testified that

his parents regularly maintained the locus during his childhood,

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by cutting the grass, for example, and by hosting occasional

family barbecues there. After college he returned home to live

with his mother from 1990 to 2010, during which time he

maintained the locus by mowing the grass, watering the tree, and

raking leaves.

In 2010, Nellie Poindexter sold 476 Harvard Street (now

comprising both Harvard Street properties) to the plaintiff.

The plaintiff testified that her family also regularly

maintained the locus from 2010 onward by mowing the lawn and

clearing snow. She also described some irregular maintenance

work, such as hiring landscapers to fill in a dip near the

driveway, clearing out debris, and cutting down a tree when its

roots began to damage the driveway. The plaintiff's family, and

sometimes her tenants, used the driveway on the locus for

parking their cars. 2 The plaintiff's son and his friends played

basketball "all year-round" using a basketball hoop located on

the pavement, played soccer on the grassy area, and the son rode

his bicycle around the entire property. They also had parties

on the locus, including putting up "moon bouncers" there. The

plaintiff maintained "keep out" and "no trespassing" signs on

2 To the extent the defendant's repeated references to a "shared
driveway" is intended to suggest that the plaintiff shared the
driveway with the record owner of 48 Hansborough Street, or with
any third party other than her own family members and residents
of 476 Harvard Street, the evidence does not support such an
inference.

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the fence, and would close the gate to the driveway at times,

such as when her son was playing basketball; however, the hinge

to the gate broke, and some months to a year before trial the

plaintiff removed the gate and stored it behind the tree on the

locus awaiting repair.

On September 25, 2019, the defendant acquired a quitclaim

deed to the locus from the estate of Gloria Watts. The

defendant then posted a sign on the plaintiff's fence announcing

the defendant's intention to file for a variance to build on the

property. Upon taking notice of the sign, the plaintiff filed a

complaint in the Land Court seeking to establish title to the

locus via adverse possession.

Discussion. The parties agreed to proceed under Rule 14 of

the Rules of the Land Court (2017). Accordingly, they waived

detailed findings of fact and rulings of law and stipulated that

appellate review would be based on the standard of review that

"would apply to a verdict by a jury in a case tried to a jury

and the judgment entered thereon." Rule 14(a), (c) of the Rules

of the Land Court. "We therefore review to determine whether

anywhere in the evidence, from whatever source derived, any

combination of circumstances could be found from which a

reasonable inference could be drawn in favor of the [prevailing

party]" (quotation omitted). K & K Dev., Inc. v. Andrews, 103

Mass. App. Ct. 338, 344 (2023) (interpreting similar Rule 20 of

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the Rules of the Superior Court [2018]). Under this standard of

review, we will not set aside the judgment unless it "has no

rational basis in the evidence." Brewster Wallcovering Co. v.

Blue Mountain Wallcoverings, Inc., 68 Mass. App. Ct. 582, 595

(2007).

Acquiring title to property by adverse possession requires

"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 proving adverse

possession is on the person claiming title thereby and 'extends

to all of the necessary elements of such possession.'" Lawrence

v. Concord, 439 Mass. 416, 421 (2003), quoting Mendonca v.

Cities Serv. Oil Co. of Pa., 354 Mass. 323, 326 (1968).

"Whether, in a particular case, these elements are sufficiently

shown is essentially a question of fact." Brandao v. DoCanto,

80 Mass. App. Ct. 151, 156 (2011), quoting Kershaw v. Zecchini,

342 Mass. 318, 320 (1961).

1. Open and notorious. The defendant argues that the

plaintiff failed to establish open and notorious use of the

locus because the evidence showed only sporadic upkeep and

maintenance. "The extent of openness and notoriety necessary

for the acquirement of title by adverse use varies with the

character of the land." Tinker v. Bessel, 213 Mass. 74, 76

(1912). The general test asks whether a reasonably diligent

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landowner would discover the use. See Boothroyd v. Bogartz, 68

Mass. App. Ct. 40, 45 (2007). To prevail on an adverse

possession claim, the possessor must use the property "as the

average owner would use it . . . irrespective of the possessor's

actual state of mind or intent." Ottavia v. Savarese, 338 Mass.

330, 333 (1959). 3

The evidence at trial permitted the judge to find that the

plaintiff and the Poindexters before her maintained the locus

regularly since 1978 and enclosed it with a fence in 1996. They

performed regular maintenance, such as mowing, removing snow,

making repairs, cutting down a tree, and planting a garden. The

evidence supported the judge's conclusion that the plaintiff's

usage was in line with that of an average owner. See Miller v.

Abramson, 95 Mass. App. Ct. 828, 833-834 (2019) ("relatively

passive use" consisting of typical suburban lawn care occurring

on continuous basis satisfied requirements of adverse

possession); MacDonald v. McGillvary, 35 Mass. App. Ct. 902, 904

3 When asked whether it was ever his intention to keep the record
owner out, Thomas Poindexter answered, "No, sir. We weren't
aware of any record owner. But if there was, they could have
came to us. But no, we never intended to keep any owner off the
property." Whatever the plaintiff's predecessor's intent, it is
irrelevant to whether their occupation of the locus put the
record owner on notice of the adverse use. See Air Plum Island,
Inc. v. Society for the Preservation of New England Antiquities,
70 Mass. App. Ct. 246, 252 (2007) ("The mentalities or
intentions of the parties are immaterial to the issue of
nonpermissive use. The material fact is the conduct of the
possessor" [citation omitted]).

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(1993) (actual use consisting of "little more than maintenance

of a suburban lawn" sufficient to establish adverse possession).

Moreover, in addition to the evidence of regular

maintenance, the Poindexters erected and the plaintiff

maintained a fence surrounding the locus and incorporating it

into the plaintiff's property, complete with "no trespassing"

and "keep out" signs. The fence put the record owner on notice

that the plaintiff was making adverse use of the locus. See

Kendall v. Selvaggio, 413 Mass. 619, 624-625 (1992) (evidence

that possessors added fence without consent, planted bushes and

trees along fence, and "in other ways acted as if they claimed

the land as their own" put true owner on notice and supported

claim of adverse possession); Poignard v. Smith, 6 Pick. 172,

178 (1828) (fence around land constituted act of notoriety

sufficient for constructive notice); Miller, 95 Mass. App. Ct.

at 831-832 (vegetative boundary which allowed for easy

identification of openly used land provided adequate notice).

The evidence of the fence, together with the plaintiff's use and

maintenance of the locus, amply supported the judge's

determination that the use was open and notorious.

2. Exclusivity. The defendant also contends that the

plaintiff's use was not exclusive because the fence was in

disrepair and accordingly failed to exclude all third persons

from the locus.

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A claimant's use is exclusive for purposes of establishing

adverse possession "if such use excludes not only the record

owner but 'all third persons to the extent that the owner would

have excluded them.'" Brandao, 80 Mass. App. Ct. at 158,

quoting Peck v. Bigelow, 34 Mass. App. Ct. 551, 557 (1993).

"Acts of enclosure or cultivation are evidence of exclusive

possession." Labounty v. Vickers, 352 Mass. 337, 349 (1967).

The degree of occupation necessary to establish adverse

possession is fact specific and differs with the circumstances

of the surrounding landscape. See Miller, 95 Mass. App. Ct. at

831-832; Paine v. Sexton, 88 Mass. App. Ct. 389, 391-392 (2015).

The defendant argues that exclusive use requires exclusion

of all third parties, and therefore the fence's inability to

prevent neighbors from occasionally crossing through the locus

casts doubt upon the plaintiff's adverse possession claim. We

disagree. Such sporadic and minor trespasses do not preclude

finding exclusive use, especially given the locus's location in

an urban neighborhood. Exclusivity does not require absolute

exclusion, only that the possessor exclude "all third persons to

the extent that the owner would have excluded them." Peck, 34

Mass. App. Ct. at 557. Indeed, the plaintiff posted "keep out"

and "no trespassing" signs to deter such behavior. See Paine,

88 Mass. App. Ct. 391-392 (affirming finding of adverse

possession where plaintiffs improved property, hung "no

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trespassing" signs, and built fences but did not enclose entire

locus).

3. Adverse. The defendant argues that the Poindexters'

use was not adverse because they maintained their garden with

the record owner's knowledge and permission. However, the

record contains no testimony that compelled the judge to find

that the owner was aware of the garden. As proof of the record

owner's knowledge, the defendant points to Evans's testimony

that while her mother was gardening, "the person who lived

there" would visit with her. As this occurred between 1999 and

2003, after the house at 48 Hansborough Street burned down,

Evans most likely was not referring to the record owner. Her

brother's testimony confirmed that the neighbors in question

were the residents of 44 Hansborough Street, the property

adjacent to the locus. "It is not sufficient to challenge the

judge's findings by reciting other evidence in the record that

[the judge] may not have credited." Millennium Equity Holdings,

LLC v. Mahlowitz, 456 Mass. 627, 637 (2010).

4. Failure to identify boundaries. We need not dwell on

the defendant's argument, apparently raised for the first time

on appeal, that the plaintiff failed to prove the boundaries of

the locus. The plaintiff's complaint described the disputed

property as "48 Hansborough Street, Dorchester," with references

to book and page numbers recorded in the registry of deeds. The

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special verdict form and judgment, respectively, described the

property as "48 Hansborough Street, as shown on Exhibit 9," and

"48 Hansborough Street in the Dorchester neighborhood of Boston,

with 40 feet of frontage on Hansborough Street and containing

4,000 square feet of land, more or less, as shown on a plan

marked as Exhibit 9 at the trial." As the description of the

locus was clear and unambiguous, further specificity, such as a

metes and bounds description, was unnecessary.

Judgment affirmed.

By the Court (Blake, Massing,
& Hand, JJ. 4),

Clerk

Entered: November 1, 2023.

4 The panelists are listed in order of seniority.

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