Opinion
FSTCV166030125S
06-13-2018
Hossien KAZEMI et al. v. Laurence G. ALLEN et al.
UNPUBLISHED OPINION
OPINION
David R. Tobin, J.T.R.
The plaintiffs in this matter are co-owners of residential real property located at 33 Maple Avenue in Greenwich. The plaintiffs acquired title to their property by warrant deed from Ditmar I. Blinznakov, Nikolina I. Blinznakov and Ivelin Blinznakov dated March 10, 2014. (Ex. 1) At the time of purchase, the property was improved with a single family residence.
Defendant, Laurence Allen (Allen), acquired 43 Maple Avenue, which is adjacent to and to the north of 33 Maple Avenue by warranty deed dated October 31, 1996. At the time of purchase that property was improved with a residence containing four apartments. After acquiring the property Allen invested substantial sums in renovating and improving the four apartments. On December 15, 1998, Allen filed a Declaration of Condominium on the Greenwich Land Records creating a four unit condominium with each of the four apartments comprising a condominium unit. Allen retained title to the common elements described in the declaration of condominium. On March 28, 2005 Allen signed a deed transferring the common elements to defendant Greentree Estate Association, Inc. (Greentree) a Connecticut Non-Stock corporation which was described in the deed as "the association of Townhome unit owners in Greentree Estate, Connecticut Common Interest Community." (Ex. 1.)
None of the defendants’ claims of adverse possession relate directly to any of the condominium units, except in so far as the owners of each of the units have a percentage interest in the common areas of the condominium. The areas of 33 Maple Avenue which the defendant’s claim by adverse possession are all adjacent to the common elements of the condominium. If those claims were successful in whole or in part, it would appear that defendant Greentree would have title to the disputed areas and defendant Allen would benefit only indirectly by having the common elements increased. Nevertheless, the counterclaims have been asserted in the name of both defendants. Accordingly, the court will refer to Allen and Greentree, collectively as "the defendants" both with respect to the plaintiffs’ action to quiet title, but also with respect to the special defenses and counterclaims asserted by both defendants.
Since the declaration of condominium was filed there have been numerous transfers of the units by Allen, his wife, L. Michelle Allen, and various family limited partnerships. At all relevant times since the filing of the declaration of condominium Allen was either the legal or beneficial owner of each of the four units. (Ex. 1.) Allen and his wife occupy Unit # 3 as their residence. The remaining units are leased to tenants. Since 2005, Greentree has been the owner of the common elements of the condominium.
After the plaintiffs acquired 33 Maple Avenue in 2014 they demolished the residence on the property which existed at the time of their purchase and began construction of a new residence on the property. During the course of construction, the plaintiffs or their contractors began making changes to the landscaping in the vicinity of the property line between their property and 43 Maple Avenue. On September 14, 2015, John Tesei, the attorney for the defendants wrote to the plaintiffs asserting that the defendants had certain ownership rights with respect to the plaintiffs’ property, based on "shrubs, a curbed driveway and a stone pillar [that] have been in existence for well over 15 years ..." (Exs. 1 & 3.) In response, on October 20, 2015, the plaintiffs, acting pursuant to General Statutes § 52-575(a) served notice upon the defendants and recorded the notice in the Greenwich Land Records on October 22, 2015. (Exs. 1 & 2.)
In relevant part, that statute provides: "No person shall make entry into any lands or tenements but within fifteen years next after his right or title to the same first descends or accrues or within fifteen years next after such person or persons shall have ousted from possession of such land or tenements; and every person, not entering as aforesaid, and his heirs, shall be utterly disabled to make such entry afterwards; and no such entry shall be sufficient, unless within such fifteen year period, any such person or persons claiming ownership of such lands and tenements and the right of entry and possession thereof against any person or persons who are in actual possession of such land or tenements, gives notice in writing to the person or persons in possession of the land and tenements of the intention of the person giving the notice to dispute the right of possession of the person or persons to whom the notice is given and to prevent the other party or parties from acquiring such right, and the notice being served and recorded as provided in sections 47-39 and 47-40 shall be deemed an interruption of the use and possession and shall prevent the acquiring of a right thereto, provided an action is commenced thereupon within one year next after the recording of such notice."
Immediately thereafter, the plaintiffs commenced this litigation by serving the defendants with a complaint alleging a single count asking the court for a judgment pursuant to General Statutes § 47-31 quieting title and settling title in 33 Maple Avenue in the plaintiffs and declaring that the defendants have no interest, estate or title or possession of the plaintiff’s property.
The defendants filed an answer, special defense and counterclaim on February 9, 2017. (# 108.00.) In their answer, the defendants asserted that "they claim in interest in the northern portion of the Plaintiff’s property by virtue of adverse possession as more fully set forth in Defendants’ Special Defense and Counterclaim." The defendants asserted a special defense of statute of limitations based on a claim that they had possessed portions of the plaintiffs’ property for more than fifteen years prior to October 22, 2015, the date on which the plaintiffs recorded the notice they sent to the defendants pursuant to § 52-575(a) on the land records. The defendants also asserted a two-count counterclaim alleging adverse possession and trespass. In their special defenses and counterclaims the defendants made the claims of adverse possession: 1) a claim based on "a driveway [which] was caused to exist on the Disputed Portion of the Subject Property, without the permission, license, or consent of the Subject Property’s owner(s), which driveway was for the sole and exclusive use, enjoyment, and benefit of the defendant’s property ..."; 2) a claim based on "a 4-5 foot high iron chain link fence [which] was caused to exist on the Disputed Portion of the Subject Property, without the permission, license, or consent of the Subject Property’s owner(s), which iron chain link fence was for the sole and exclusive use, enjoyment, and benefit of the defendant’s property ..."; 3) a claim based on "a stone pillar [which] was caused to exist on the Disputed Portion of the Subject Property, without the permission, license, or consent of the Subject Property’s owner(s), which stone pillar was for the sole and exclusive use, enjoyment, and benefit of the defendant’s property ..."; a claim based on "certain shrubs, bushes and/or plants [which] were placed alongside ... the stone pillar ... across the Disputed Portion of the Subject Property, without the permission, license, or consent of the Subject Property’s owner(s), which shrubs, bushes and/or plants were for the sole and exclusive use, enjoyment, and benefit of the defendant’s property ..."; and 4) a claim that defendant "Allen caused a mailbox to be placed on the Disputed Portion of the Subject Property ... under a claim of right and title ... for the sole and exclusive use, enjoyment, and benefit of the Defendants’ Property."
Paragraph 18 of the special defense and paragraph 18 of the counterclaim.
Paragraph 19 of the special defense and paragraph 19 of the counterclaim.
Paragraph 20 of the special defense and paragraph 20 of the counterclaim.
Paragraph 21 of the special defense and paragraph 21 of the counterclaim.
Paragraphs 26 through 30 of the special defense and paragraphs 26 through 30 of the counterclaim.
On May 2, 2017, the defendants filed amended special defense and counterclaims. (# 129.00.) In their amended pleadings the defendants revised their claims as follows:
1) with respect to the driveway, the defendants claim that in 1996 "a curbed driveway may have existed on the Disputed Portion of the Plaintiff’s Property for the sole and exclusive use, enjoyment, and benefit of the Defendants’ Property." (Emphasis supplied.)"
2) with respect to the stone pillar, the defendants claim that in 1996 "a brick pillar may have existed on the Disputed Portion of the Subject Property for the sole and exclusive use, enjoyment, and benefit of the Defendants’ Property." (Emphasis supplied.)"
3) with respect to the chain link fence the defendant’s claim that in 1996, "a 4-5 foot high iron claim link fence existed on the Disputed Portion of the Plaintiff’s Property, which iron chain link fence extended in a westward fashion across the Disputed Portion of the Plaintiff’s Property from the ... brick pillar toward the abutting roadway ... [the] iron chain link fence purported to act as a physical barrier to separate the Defendants’ Property and the Plaintiff’s property ... and existed for the sole and exclusive use, enjoyment, and benefit of the Defendants’ property."
4) with respect to the mailbox the defendants’ allegations were essentially unchanged.
Paragraph 19 of the amended special defense and paragraph 19 of the amended counterclaim.
Paragraph 20 of the amended special defense and paragraph 20 of the amended counterclaim.
Paragraphs 21 through 23 of the amended special defense and paragraphs 21 through 23 of the amended counterclaim.
Paragraphs 28 through 32 of the amended special defense and paragraphs 28 through 32 of the amended counterclaim.
The plaintiffs filed a reply denying the allegations of the defendants’ special defense and counterclaims. The case was tried to the court on April 18 and 20, 2018. The court agreed to the parties’ request to delay oral argument until May 30, 2018 to allow the parties to obtain and review transcripts of the testimony given in the case.
DISCUSSION
The plaintiffs brought this action under General Statutes § 47-31 which authorizes persons claiming title to or an interest in any real or personal property to bring an action to quiet and settle title to the property in question. The statute requires that the complaint in such an action must: 1) describe the property in question; 2) state the plaintiff’s claim, interest or title; 3) state the manner in which plaintiff acquired the claim, interest or title; and 4) name any persons known to have claims to the property in question which are adverse to the claims of the plaintiff. The court finds that the plaintiffs’ complaint complies with these statutory requirements.
General Statutes § 47-31(d) requires that, in a quiet title action, "[e]ach defendant shall, in his answer, state whether or not he claims any estate or interest in, or encumbrance on, the property, or any part of it, and, if so, the nature and extent of the estate, interest, or encumbrance which he claims, and he shall set out the manner in which the estate, interest or encumbrance is claimed to be derived."
In their answer, the defendants do not expressly state the parts of the plaintiffs’ property they claim. From the evidence, it is clear that the plaintiffs were, at all times, aware that the defendants claimed a fee interest in some portions of the northerly portion of their property on the basis of adverse possession.
THE EVIDENCE
Prior to the commencement of testimony, counsel of the parties entered into a signed stipulation of facts which was entered into evidence as Exhibit 1. That document stipulated to the following facts:
Conveyance History of 43 Maple
1) On October 16, 1996, 43 Maple Avenue in Greenwich, Connecticut ("43 Maple") was conveyed to Laurence Allen by warranty deed recorded in book 2850 at page 147 of the Greenwich Land Records.
2) Green Tree was incorporated October 6, 1998 and Mr. Allen has always been the sole shareholder and director of Green Tree as well as its president.
3) On December 5, 1998, Mr. Allen executed the Condominium Declaration that is recorded in book 3194 at page 143 of the Greenwich Land Records whereby 43 Maple was converted to a Condominium Common Interest Community with four townhouse units and Green Tree became the owner of the common elements while Mr. Allen retained ownership of the four units.
4) Between May 2, 2012 and July 6, 2015, there were a series of transactions where Mr. Allen first conveyed his interest in the four condominium townhouse units to himself and his wife, then from him and his wife to four separate limited partnerships and then finally from the four limited partnerships back to Mr. Allen. Mr. Allen was the general partner in these four partnerships.
Conveyance Histories of 33 Maple
5) On September 11, 1969, Elia and Kuna Burneff took title to 33 Maple Avenue in Greenwich, Connecticut ("33 Maple") by warranty deed recorded in book 791 at page 600 of the Greenwich Land Records.
6) On December 20, 1974, Elia and Kuna Burneff quitclaimed (sic) 33 Maple to Ivan and Dana Marazov by a deed recorded in book 913 at page 166 of the Land Records.
7) By probate decree issued February 21, 2006 and recorded in book 5134 at page 62 of the Land Records, 33 Maple was transferred to Nikolina I. Bliznakova, Kotsi Kotsev and Maria I. Kotsev.
8) By judgment of the Superior Court rendered on September 17, 2007 in a partition action, Ms. Bliznakova, along with husband, Dimitar Bliznakov, were given title to 33 Maple by Committee Deed recorded in book 5615 at page 313 of the Land Records.
9) On May 2, 2008, Mr. And Mrs. Bliznakov quit-claimed a one-third interest in 33 Maple to their son, Ivelin Bliznakov, by a deed recorded in book 5615 at page 317 of the Land Records.
10) On March 10, 2014, Nikolina Bliznakova, Dimitar Bliznakov and Ivelin Bliznakov conveyed 33 Maple to the plaintiffs by warranty deed recorded in book 6716 at page 277 of the Land Records.
Notification of Defendant’s Adverse Possession Claims
11) On September 14, 2015, John Tesei, Esq., as attorney for the defendants, wrote and sent to the plaintiffs the letter that is Plaintiffs’ Exhibit 1 wherein he asserted certain rights the defendants claimed they had with respect to 33 Maple.
12) On October 20, 2015, the plaintiffs’ Notice of Intention to Dispute and Prevent Possession Rights Pursuant to C.G.S. § 52-575 ("Notice") was served on the defendants.
13) The Notice was recorded on October 22, 2105 (sic) in book 6977 at page 332 of the Greenwich Land Records and a copy of the Notice as recorded is Exhibit 1 (101.00) to the Complaint." (Ex. 1.)
Plaintiff Hossien Kazemi ("Kazemi") testified that he and his wife, plaintiff Mahvash Mirzai ("Mirzai"), have owned 33 Maple Avenue since March 10, 2014. Kazemi authenticated the notice he and his wife caused to be served on the defendants and recorded in the land records pursuant to General Statutes § 52-575 (Ex. 2) as well as the letter that had been sent to the plaintiffs by the defendants’ attorney on September 14, 2005. (Ex. 3.) After Kazemi’s testimony was completed the plaintiffs rested their case.
When recalled as a defense witness, Kazemi testified that when he purchased 33 Maple Avenue the property was improved with a single family residence which he demolished and began construction on a new residence. He admitted that the plaintiffs did not have a survey made of the property or obtain an affidavit in lieu of a survey from the owners prior to purchasing the property. In connection with the construction of the new residence, the plaintiffs removed bushes and trees and excavated on the property. He testified that there was a wire fence encircling the property when he purchased which was not located on the property line, but was entirely within 33 Maple Avenue. He authenticated two photographs (Exs. 4 and 5) both of which depict the residence under construction and which show the wire fence. In addition, Ex. 5 which was taken from 43 Maple Avenue shows a tall hedge located in the vicinity of the property line between 33 Maple Avenue and 43 Maple Avenue. Kazemi testified that he removed the wire fence, but did not recall the date on which he did so. However, he was certain he did so after receiving the September 15, 2015 letter from the defendant’s counsel.
There is only one fence relevant to the issues of this case. Plaintiff Kazemi called it a "wire fence." It is shown on surveys as "post and wire fence." Defendant Laurence Allen referred to the same fence as a "chain link fence." The court will use "wire fence" when referring to the fence for sake of clarity and consistency.
Defendant Laurence Allen ("Allen") testified that when he purchased 43 Maple Avenue in 1996, the property was improved with a four family apartment house. He invested substantial amounts of money in renovating and upgrading the building. In 1998 he converted the project to a four unit condominium. Although the units have been transferred between family members and limited partnership, no unit has ever been sold or transferred outside of his family. Presently Allen and his wife occupy unit # 3 and lease the remaining units to tenants.
Allen authenticated a survey of 43 Maple Avenue dated December 4, 1998 which also shows the location of the wire fence on 33 Maple Avenue. (Ex. 7.) A larger reproduction of that survey was subsequently introduced into evidence as Exhibit 16. The survey shows a short hedge in close proximity to Maple Avenue running parallel to the property line separating the parties’ properties. That hedge is located entirely on the defendant’s property. The survey does not depict any encroachments of any nature on 33 Maple Avenue.
Allen also authenticated photographs showing the driveway on his property and what he described as a "retaining wall." (Exs. 8, 9 & 10.) All three of those exhibits show that the driveway and the retaining wall serving 43 Maple Avenue are in close proximity to a parallel driveway on 33 Maple Avenue. Allen could not state who took the photographs or when they were taken.
Allen authenticated Exhibit 11, a survey dated August 8, 2006, which he created in connection with an attempt to add a fifth residential unit to the condominium. That survey depicts the hedge and wire fence in the same positions as the 1998 survey (Exs. 7 & 16.) However, Exhibit 11 shows the existence of an encroachment of undetermined dimensions of a stone wall onto 33 Maple Avenue. The stone wall is apparently the same one depicted in Exhibits 8 & 9. An additional copy of Exhibit 11 (with slightly darker printing) was introduced as Exhibit 17. A comparison of the 1998 survey with the 2006 survey shows differences in the area paved, the extent of certain stone walls and in elevations in the portion of 43 Maple Avenue in the vicinity of the "retaining wall." Allen also introduced Exhibit 12 which shows (in the foreground) the driveway serving 43 Maple Avenue, a hedge and a shed containing mailboxes and (in the background the driveway and residence on 33 Maple Avenue. Allen could not state who took the photograph or when they were taken. Allen testified that Exhibit 12 depicts the hedge as it currently exists. He testified that the hedge existed when he purchased 43 Maple Avenue in 1996, that, at that time, it ran all the way down to the stone wall near the end of his driveway, and that since 1996, landscaping contractors hired by him had maintained the hedge.
In the vicinity of the "retaining wall" a comparison of the surveys shows increases in elevation of one to two feet from 1998 to 2006.
Subsequently, the defendants introduced Exhibit 26, a survey dated March 4, 2005 which may show in very light print the encroaching "retaining wall." That survey does not show the changes in elevations shown on the 2006 surveys (Ex. 11 & 17).
Exhibits 14 and 15 are photographs of a shed containing five mailboxes. The front of the shed rests on the defendants’ driveway; the rest of the shed is in a break in the hedge. Although Allen could not state who took the photographs or when they were taken, he testified that they depict the current location of the mailbox shed and hedge. Allen testified that in 1998, the mailbox shed was originally located on a concrete slab shown in Exhibit 14. However, the shed was moved further east shortly after it was installed, at the request of the post office to provide easier access to the boxes for the mail delivery vehicle. Allen testified that, after the relocation, the mailbox shed was in the location depicted on Exhibit 14, except that the front of the shed did not rest on his driveway, but, instead, rested above the Belgium blocks bordering the driveway and the back of the shed abutted the wire fence. Allen testified that, although he never gave permission, the mailbox shed was moved to its current location after the plaintiffs acquired 33 Maple Avenue. Allen did not testify as to the date when the mailbox shed was moved without his permission or who moved it. Allen testified that Exhibit 18 shows the position of the mailbox shed before it was moved. The angle and detail of the photograph does not permit any inference to be drawn as to whether, at the time the photograph was taken, any portion of the mailbox shed was located on 33 Maple Avenue.
Allen testified that the wall shown on the 2006 survey (Exs. 11 & 17) encroaching on 33 Maple Avenue was a retaining wall, which supported a portion of the driveway on 43 Maple Avenue. He claimed that if the retaining wall was removed he would suffer damages since the driveway would no longer be supported and would be subject to erosion. Allen did not explain why, if he were forced to remove an encroaching wall, he could not build a retaining wall located entirely on 43 Maple Avenue. He testified that he would have to "check with advisors" before determining that such a wall could act as a retaining wall.
On cross examination Allen conceded that the December 4, 1998 survey of 43 Maple Avenue (Exs. 7 & 16), does not show a stone wall encroaching on 33 Maple Avenue in the area that he identified as the area of the retaining wall. Allen also conceded that none of the surveys in evidence depict the location of the mailbox shed, although the surveys all depict the location of a shed of similar size located on another property abutting 43 Maple Avenue. Allen claimed that the 1998 survey was inaccurate because it failed to show the location of the mailbox shed. He claimed that he and his wife would not have been allowed to occupy Unit # 3 until and unless mail boxes were installed.
The transcript reflects a somewhat confusing dialogue regarding Allen’s position as to the accuracy of the 1998 survey. The dialogue started with "Q. Is it your testimony that this survey is not accurate? A. Correct. The Court: I don’t understand. When you answer ‘correct,’ are you saying the survey is correct, or are you saying that his statement is correct? A. I believe the survey is missing certain things and there’s a reason for that." The court is satisfied that Allen testimony establishes that he claims that the 1998 survey is inaccurate in certain regards.
In cross examining Allen, the plaintiffs’ counsel pointed out differences between the 1998 survey (Exs. 7 & 16) and the 2006 survey (Exs. 11 & 17) with respect to elevations and the extent of pavement in the area Allen referred to as the "retaining wall." The 1998 survey shows two U-shaped features, a larger one of stone construction to the north and a smaller one, with no indication of what it was, lying further to the south. The features are located between contour lines 92’ and 88’; the areas within the two U-shapes are not shown as paved. Both U-shaped features are located entirely north of the property line.
The 2006 survey shows that a portion of the more northerly U-shape has been removed and a stone wall extends from the shortened arm to the property line where the stone wall turns approximately 90 degrees and gradually encroaches on 33 Maple Avenue. The edge of pavement now appears to include all areas within the stone wall. Moreover, the elevations within the area enclosed by the northerly U-shape have been increased by as much as two feet.
The areas presently paved in the vicinity of the encroaching stone wall are shown on the photographs- Exhibits 8, 9 & 10.
Allen conceded that no survey depicts the location of the mailbox shed or the pillar on top of the encroaching wall shown in Exhibits 8, 9 and 10. He claimed that the changes in the area of the encroaching retaining wall were part of the work he was doing on 43 Maple Avenue and that the changes were not reflected on the 1998 survey because the work was probably performed after 1998. He conceded that he did had not produced in discovery any documents to support that claim. Allen testified that the work that he claimed to have done after 1998 did not consist of erecting the encroaching wall. He claimed that the wall was already encroaching when he purchased the property in 1996. He claimed that the work that he caused to be performed consisted of adding flagstone slate and the brick pillar on top of the encroaching wall.
Allen claimed that no matter who erected the wire fence around the perimeter of 33 Maple Avenue, the erection of the wire fence created a boundary and that he owned all portions of 33 Maple Avenue north of the fence. Exhibit 19 is a deed dated March 28, 2005 by which Allen as the declarant of Greentree Estate condominium transferred the common elements to defendant Greentree Estate Association, Inc. Allen admitted that the description of the property conveyed by that deed did not include any language referring any portion of 33 Maple Avenue. (Ex. 19.) Similarly, the Declaration of Condominium dated December 5, 1998 does not include any portion of 33 Maple Avenue within the scope of the declaration. (Ex. 20.) The property subject to the declaration is described by referring to recorded Map No. 7349. That map is in evidence as Exhibit 17 and shows no encroachment on 33 Maple Avenue.
On cross examination Allen also conceded that his attorney’s letter of September 14, 2015 (Ex. 3) refers to claims of adverse possession based on "shrubs, a curbed driveway and a stone pillar," but make no claims with respect to the location of a mailbox shed. When questioned as to whether he claimed the mailbox shed had been moved so that it encroached on the plaintiffs’ property after 2006, Allen stated that the Mailbox was moved "in approximately 1999." He also stated his belief that the plaintiffs’ contractors had moved the shed (presumably after the plaintiffs acquired title to 33 Maple Avenue in 2014.)
In his re-direct testimony, Allen stated that after the 1998 survey, there were significant renovations made to 43 Maple Avenue including work on the stone wall near the property line with 33 Maple Avenue. That work including having contractors place a cap on top of an existing stone wall near the property line. He claimed that he did not have the wall moved so that it encroached on the plaintiffs’ property. However, he was not able to produce any evidence identifying the contractors who may have worked on the stone wall when work on 43 Maple Drive was in progress in the late 1990s. With respect to the mailbox shed, Allen testified that he believed that it was not shown on the 1998 survey because it was not affixed to the ground. He further testified that in 1998 the grounds of 33 Maple Avenue were not well maintained. He claimed the yard was "a jungle ... overgrown shrubs, overgrown weeds. It was not well maintained. You could not see the house from Maple Avenue."
When questioned by the court regarding the absence of any indication of the mail box shed on any of the surveys, Allen testified that he had little confidence in accuracy of any of the surveys made for him by Ahneman Associates, P.C., the firm which prepared all of the surveys introduced into evidence. (Ex. 7, 11, 16, 17 & 26.) Allen hired another surveyor who, due to illness, was unavailable to be deposed or to testify at trial.
Michelle Allen testified that she is the wife of Laurence Allen and has resided with him at 43 Maple Avenue since November 1998. Because of her husband’s career, she is, by default, the property manager for the three condominium units which are leased to tenants. She deals with repairs to leased units and the listing of vacant units with real estate brokers. She also deals with landscapers who maintain the common elements. She testified that she is familiar with 43 Maple Avenue and all of the properties in the neighborhood.
She never took down the wire fence or asked any of the landscapers she supervised to do so. She claims that the wire fence was south of the property line between 43 Maple Avenue and 33 Maple Avenue and that the hedge was north of the line. She testified that landscapers hired by the defendants have always taken care of the hedge and the ground beneath the hedge.
The mailbox shed that was originally located on a cement slab was moved further away from Maple Avenue and a portion of the hedge was removed to clear a space for the shed. After that relocation the back of the shed abutted the wire fence. At a later date, two landscapers, not hired by the defendants, moved the shed further north so the front legs of the shed touched the driveway on 43 Maple Avenue.
When questioned by the defendants’ attorney regarding the retaining wall that now appears to encroach on the plaintiff’s property the following dialogue took place:
Q. Okay. When you moved into that premises, was there a structure where that wall is today? A. Well, when we first- well, by the time we moved in, I guess it was having- but when the first- when they first had it it was over just a bit further and then it was a re- you know, refaced, built up a little bit, so we had more of a
On cross examination Michelle tried to explain her testimony regarding the location of the retaining wall in the late 1900s.
Q. And you testified that the- what you call the retaining wall and pillar, were not there when you purchased the property in 1996.
A. That is what I was trying to speak up about. Is that I think I possibly misspoke because I don’t really know.
Q. You don’t know what was there in 1996?
A. No, where everything was exactly at that time.
Michelle Allen also testified that landscapers she supervised maintained all the areas north of the wire fence. On cross-examination she testified that she began functioning as property manager in 2003. When questioned as to the landscapers she supervised over the years she named four landscapers who had performed work at 43 Maple Avenue on a regular basis- the most recent on being Bob’s Landscaping who is the present landscaper.
After Michelle Allen completed her testimony, the court permitted the defendants to recall Allen for further testimony. That testimony authenticated Exhibit 26 which tended to show that the "retaining wall" encroaching on the plaintiff’s property may have existed as early as March 2005.
After the defendants rested, the plaintiffs called Nikolina Bliznakova as a rebuttal witness. She testified that she was one of the grantors on the 2014 deed conveying title to 33 Maple Avenue to the plaintiffs. The property was initially owned by her grandparents Ilia and Cuna Berneff. However, they conveyed title to the property to the witness’ father and mother in 1974. The witness was born in Bulgaria and first saw the property when she visited her parents in 1988. She lived at the property from 1990 until 2001 when she moved to White Plains, New York. She visited her parents frequently after relocating to White Plains.
She testified that she was familiar with the hedge shown on the photograph of the plaintiffs’ residence under construction. (Ex. 5.) She stated that the hedge had been planted by her grandfather Ilia Berneff who operated a nursery in Greenwich. The hedge was maintained at various times by her grandfather, her father and her husband, Dimitar Bliznakova. She was also familiar with the wire fence shown on Exhibit 5. Her grandfather erected the fence around the property sometime prior to 1988 in order to prevent his dogs from leaving the property. The fence was approximately one meter high. On cross-examination she testified that she was a defendant in a lawsuit brought by the plaintiffs based on the warranty deed she signed conveying 33 Maple Avenue to the plaintiffs. The suit was based on the claims of the defendants to have acquired title to portions of 33 Maple Avenue by adverse possession. (Exs. 27 & 28.)
After the close of evidence, the defendants withdrew the second count of their counterclaim alleging trespass. The issues remaining before the court were limited to those raised by: 1) the sole count of the plaintiffs’ complaint seeking to quiet title to 33 Maple Avenue; 2) the defendants’ special defenses; and 3) the defendants’ counterclaim alleging ownership of portions of 33 Maple Avenue by virtue of adverse possession. The court held a brief discussion with counsel to determine the issues of the case and whether post-trial briefs should be filed. After a brief discussion, the court agreed to postpone oral arguments until May 30, 2018, leaving counsel an opportunity to obtain transcripts of testimony prior to argument. During those discussions, counsel for the plaintiff conceded that he had not produced a survey, plot plan or legal description of the area of 33 Maple Avenue which his clients were claiming by adverse possession.
DISCUSSION
"Where a party pursuant to ... § 47-31 seeks to quiet title, the trial court should first determine in which party record title lies, and then determine whether adverse possession has divested the record owner of title." Clark v. Drska, 1 Conn.App. 481, 488 (1984). "Where title is claimed by adverse possession, the burden of proof is on the claimant." Loewenberg v. Wallace, 147 Conn. 689, 699 (1960). The essential elements of adverse possession are that the owner shall be ousted from possession and kept out uninterruptedly for fifteen years under a claim of right by an open visible and exclusive possession of the claimant without license or consent of the owner." Stevens v. Smoker, 84 Conn. 569, 574 (1911). "A finding of adverse possession is made out by clear and positive proof ... [C]lear and convincing proof ... denoted a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ... [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater that the probability that they are false or do not exist ... The burden of proof is on the party claiming adverse possession." Allen v. Johnson, 79 Conn.App. 740, 745 (2003).
The doctrine of adverse possession is founded upon the statute of limitations, to actions for entry upon land, General Statutes § 52-575. The elements of adverse possession have frequently been summarized: "[T]o establish title by adverse possession, the claimant must oust an owner of possession and keep such owner out without interruption for fifteen years by an open, visible and exclusive possession under a claim of right with the intent to use the property as his own and without the consent of the owner ... A finding of adverse possession is to be made out by clear and positive proof ... The burden of proof is on the party claiming adverse possession." (Internal quotation marks omitted.) 98 Lords Highway, LLC v. One Hundred Lords Highway, LLC, 138 Conn.App. 776, 806-07 (2012). "In the absence of color of title ... and where a lot has no definite boundary marks, adverse possession can only extend as far as [the] claimant has actually occupied and possessed the land in dispute." (Internal quotation marks omitted.) Skelly v. Brucher, 134 Conn.App. 337, 343 (2012).
See footnote 2.
I.
ADVERSE POSSESSION OF THE NORTHERLY PORTION OF 33 MAPLE AVENUE
A. LOCATION, MAINTENANCE AND SIGNIFICANCE OF THE HEDGE
The evidence establishes that a hedge existed in close proximity to the property line. The hedge is depicted on many photographs. (Exs. 5, 8, 12, 14, 15 & 18.) However, none of those photographs establish whether any portion of the hedge was located on the plaintiffs’ property. A hedge is also shown on surveys dated between 1998 and 2006. (Exs. 11, 16, 17 & 26.) Those surveys show a short hedge, located entirely on 43 Maple Avenue extending only a few feet, back from Maple Avenue. The more contemporary photographs in evidence show a much longer hedge extending for approximately 100 feet. The photographs do not establish, with any precision, the location of the hedge with respect to the property line.
Various claims have been asserted regarding the hedge. The defendants’ evidence supports their claim that contractors hired by them have maintained the hedge since they acquired their property. Both Allen and his wife testified that they had never given permission for anyone else to maintain or trim the hedge. In addition, the defendants also claim that their contractors have maintained the ground beneath the hedge and the ground lying between the hedge and the wire fence. However, the testimony as to what maintenance was performed under and behind the hedge was vague and uncertain. Aside from possibly removing hedge trimmings from the ground, it is unclear as to what use the plaintiffs made of the ground beneath the hedge or the ground between the hedge and the wire fence. Nevertheless, the plaintiffs claim that such activities allowed them to acquire title to a portion of the plaintiff’s property lying between the hedge and the wire fence by adverse possession.
The plaintiffs presented evidence in the form of testimony from Nikolina Bliznakova, a former owner of the property, that when her grandfather owned 33 Maple Avenue he planted the hedge. On cross examination she admitted that her information as to the planting of the hedge was hearsay- her father told her her grandfather had planted the hedge. However, she testified that between 1988 and 2001 she had personally witnessed her father and grandfather maintaining the hedge.
The plaintiffs do not claim any portion of 43 Maple Avenue on the basis of their predecessors in title having maintained the hedge, all of which or a significant portion of it, may be located on 43 Maple Avenue. The plaintiffs only seek to quiet title to 33 Maple Avenue up to the property line.
Testimony was presented as to the identity of some of the landscapers who were hired by the plaintiffs to maintain 43 Maple Avenue during their period of ownership. However, none of the landscapers testified as to the extent of their activities in the vicinity of the property line. There is nothing in the photographs of the hedge support the plaintiffs’ claim that they performed activities south of the property line which could meet the requirements of adverse possession.
At the conclusion of evidence, the court sought to understand exactly which portions of the property described in plaintiffs’ deed the defendants were claiming by adverse possession. Defendants’ counsel explained that his clients were asserting claim to the northerly portion of the plaintiff’s property based on the location of a wire fence which formerly was located on the plaintiffs’ property in proximity to the property line and running parallel to it. Defendants’ counsel also stated that his client was asserting an alternative claim to two portions of the plaintiffs’ property located north of the wire fence. The first area is shown on Exhibits 11 and 17, both copies of a survey dated August 8, 2006 prepared by Ahneman Associates, LLC. That survey depicts a wall adjacent to the defendant’s driveway which slightly encroaches on the plaintiffs’ property. Exhibit 26, a survey prepared by Ahneman Associates, LLC dated March 4, 2005 also depicts the same encroaching wall, albeit in very light detail. The second area is an area located behind the area presently occupied by the defendants’ mailboxes shown on Exhibit 14. The area could be roughly described as a rectangle having the width of the defendants’ mailbox shed and the length of the distance between the former location of the wire fence and the property line.
B. THE WIRE FENCE
The surveys show that the wire fence was located entirely on 33 Maple Avenue, but running parallel to the property line. In their initial special defenses and counter claims, the defendants asserted that the fence had been erected without the consent of the owners of 33 Maple Avenue. Subsequently, in their amended special defense and counter claims, the defendants claimed that the fence "purported to act as a physical barrier to separate the Defendants’ Property and the Plaintiff’s property ... and existed for the sole and exclusive use, enjoyment, and benefit of the Defendants’ property." The evidence does not support that claim. The only evidence regarding the erection and purpose of the fence came from Nakolinkova Bliznakova who testified that, prior to 1988, her grandfather, who then owned 33 Maple Avenue, had erected the fence to keep his dogs from leaving his yard. She further testified that between 1988 and 2001 she had personally witnessed her father and grandfather maintaining the hedge which was located to the north of the fence. The evidence suggests that the hedge was located entirely, or in large measure, north of both the wire fence and the property line. No evidence was presented that the fence was ever intended to demarcate the boundary between 43 Maple Avenue and 33 Maple Avenue.
Allen testified that from the day he acquired 43 Maple Avenue in late 1966 to the present he has always believed that the wire fence (a "chain link fence" in his words) marked the boundary between his property and 33 Maple Avenue. That testimony is undercut by the 1998 survey (Exs. 7 & 16), which shows that the fence is located entirely on the property now owned by the plaintiffs. Moreover, Allen could not explain why, if he believed he owned the land located between the property line and the fence he did not include that property in the declaration of condominium (Ex. 20) or in the deed of the common areas to Greentree. (Ex. 19.)
"If a fence exists before the adverse claimant takes possession of the land and the claimant fails to demonstrate the purpose for which it was erected, then it is a ‘casual fence,’ rather than a fence that ‘designedly encloses’ an area. If the character of the use of the enclosed land by an adverse claimant is not such as to constitute, of itself, a visible appropriation of the land, that use cannot be aided by a fence that casually creates the enclosure, and to the construction of which neither the adverse claimant nor any person under whom the adverse claimant claims has contributed. In other words, an adverse claimant can derive no aid in establishing the claim from an enclosure casually created by third persons in effecting a purpose of their own ..." Rudder v. Mamanasco Lake Park Assoc., Inc., 93 Conn.App. 759, fn.18 (2006), citing 3 Am.Jur.2d 120, Adverse Possession § 40 (2002).
C. CONCLUSION
The court finds that the defendants have failed to establish by clear and convincing evidence that they conducted activities south of their property line which were sufficient to constitute adverse possession of the northerly portion of the plaintiffs’ property. The court further finds that the wire fence formerly located entirely on the plaintiffs’ property was never intended to mark the boundary between 43 Maple Avenue and 33 Maple Avenue, but, instead was erected as part of an enclosure of 33 Maple Avenue to restrict the movements of dogs owned by the family who then owned and occupied the premises. The existence of such a fence does not support the defendants’ claim of the entire northerly portion of the plaintiffs’ property.
The court notes that the location of the fence has evidentiary value with respect to the defendants’ claims regarding the Mail Shed.
II.
THE ENCROACHING WALL, A/K/A "THE RETAINING WALL" AND THE BRICK OR STONE PILLAR
The earliest documentary evidence of a possible encroachment of a portion of the defendants’ stonewall is a survey dated March 4, 2005 which very faintly depicts the encroachment. The same encroachment is better shown on the August 8, 2006 survey. (Exs. 11 & 17.) The December 4, 1998 survey (Exs. 7 & 16) shows some sort of improvement entirely on the defendants’ property located in the vicinity of the encroaching wall shown on the surveys made in 2005 and 2006. A comparison of the surveys shows that at some time between 1998 and 2005 substantial changes were made in the area of the encroachment, resulting in an increase in the elevation of the lower portion of the defendants’ driveway and the surrounding area. It is clear from Allen’s testimony that he did not personally perform any work in the area where the wall now encroaches. He hired contractors, who he could not identify at trial, to perform the work. Allen’s wife, Michelle, testified that work was done on the wall, but was uncertain as to whether the work involved the creation of the encroachment shown on Exhibits 11 and 17.
Defendant Allen described the wall as a "retaining wall."
The court finds that the defendants have not sustained their burden of establishing adverse possession by clear and convincing evidence that the wall in question was encroaching on the plaintiff’s property for the requisite fifteen years.
III
THE MAILBOX SHED
The testimony presented by the defendants with regard to the mailbox shed may be summarized as follows. The shed was originally erected on a concrete slab in late 1998. Timing of the erection of the shed is established by the fact that the Allens would not have been allowed to occupy their apartment had a mailbox not been erected. Shortly thereafter, the shed was moved off the slab several feet to the east. A section of the hedge was removed to make room for the shed. The shed was moved in order to better accommodate the mail delivery vehicle serving the property. There was no evidence as to the dimensions of the mailbox shed, or the distance between the plaintiffs’ driveway and the property line or between the property line and the wire fence in the area where the mailbox shed was placed immediately after it was removed from the slab. Allen testified that the back of the mailbox shed encroached on the plaintiff’s property because, after it was relocated from atop the concrete slab, it abutted the wire fence.
Despite Allen’s testimony, many factors prevent the court from finding that the defendants have shown by clear and convincing evidence that a portion of the mailbox shed was situated on the plaintiffs’ property for the requisite period of fifteen years.
First, the absence of any evidence of the mailbox shed from any of the surveys in evidence. It is not clear when the field work which resulted in the December 4, 1998 survey (Ex. 7 & 16) took place, possibly before the mailbox shed was placed on the concrete slab shown on that survey. However, the 2005 and 2006 surveys, which depict the encroaching wall, paved areas, structures and other features fail to show the location of the mailbox shed.
Second, the failure of defendant’s counsel to include the mailbox shed in his letter of September 14, 2015 outlining the defendants’ claims of adverse possession. (Ex. 3.) Allen testified that after he had his contractors relocate the shed to the east of its original location, the rear of the shed abutted the wire fence. At roughly the same time, and certainly thereafter Allen had in his possession numerous surveys showing that the wire fence was not on the property line, but instead was entirely within the boundaries of the plaintiffs’ property. No explanation was ever offered for the failure to include claims regarding the mailbox shed in Exhibit 3.
Third, no other evidence corroborates Allen’s claim that the mailbox shed was partially located on the plaintiffs’ property. There was no documentary evidence showing when the shed was moved or that it was, in fact, partially located on the 33 Maple Avenue property. No contractor or workman was called to testify as to the facts concerning the relocation of the shed. Although the defendants claim that the mailbox shed was partially located on the plaintiffs’ property for over fifteen years, no photographs were offered which demonstrated the location of the mailbox shed during that time. The only picture of the mailbox shed in the position where Allen claims it was located for over fifteen years is the photograph admitted in evidence as Exhibit 18. That picture, taken from the plaintiffs’ property, is printed on plain paper shows both the wire fence and a portion of the mailbox shed. The shed is located on the northern side of the fence, but is not possible to determine the distance, if any, between the fence and the shed. Especially damning to the defendants’ claims regarding the mailbox shed, is the failure of any of the 2005 and 2006 surveys to depict the shed’s location. Those surveys establish that the "retaining wall" encroaches on the plaintiffs’ property, and show the location of the wire fence. If Allen’s recollection of the facts were accurate, the survey should have depicted the encroachment of the mailbox shed.
Resulting in an inferior image.
In summary, the only evidence supporting the plaintiffs’ claim is Allen’s uncorroborated testimony. The court finds that evidence, under the circumstances, insufficient to carry the burden of proof by clear and convincing evidence which is imposed on the defendants with respect to their special defenses and counterclaim.
CONCLUSION
The court finds the issues on the plaintiffs’ complaint in favor of the plaintiffs and against the defendants. The court finds the issues on the defendant’s counterclaim in favor of the plaintiffs and against the defendants. The court orders that judgment enter in favor of the plaintiffs finding that they are the fee owners of the property known as 33 Maple Avenue, more particularly described in paragraph 1 of their complaint and further finding that the defendants have no estate, interest in or encumbrance on such property or any part of it.