ROSA v. OBAR

Full title: NICHOLAS W. ROSA v. ROBIN M. OBAR ET AL

Court: Connecticut Superior Court, Judicial District of Waterbury at Waterbury

Date published: Jan 9, 2004

2004 Ct. Sup. 449 (Conn. Super. Ct. 2004)

Opinion

No. CV00-0156932

January 9, 2004

MEMORANDUM OF DECISION

ALVORD, JUDGE.

FACTS

This is an action wherein the plaintiff claims title to a certain parcel of land, located in Watertown, Connecticut, with reference to Map #2388 (Plaintiff's Exhibit 5) bounded on the southerly side by the southern most boundary of the property depicted on said map; on the westerly side by Steele Brook as depicted on said map; on the northerly side by the continuation of the northern property line of property shown on said map as N/F Nicholas Rosa; and on the easterly side by the westerly property line of property shown on said map as N/F Nicholas Rosa. This parcel abuts the plaintiff's premises, and the plaintiff claims title by adverse possession.¹ It is the claim of the plaintiff, an attorney, that in 1971 he, or his predecessors in title, constructed a four-unit apartment building at 202-08 Westbury Park Road and he has owned that rental property continuously since that time to the present. Attorney Rosa has never lived in the apartment building; he has had numerous tenants occupying the four units over the years.

1 Plaintiff claims title to the disputed area under this action to quiet title and by adverse possession under Connecticut General Statutes § 47-31 and 52-575, which read as follows:

Section 47-31: Action to settle title or claim interest in real or personal property.

(a) An action may be brought by any person claiming title to, or any interest in, real or personal property, or both, against any person who may claim to own the property, or any part of it, or to have any estate in it, either in fee, for years, for life or in reversion or remainder, or to have any interest in the property, or any lien or encumbrance on it, adverse to the plaintiff, or against any person in whom the land records disclose any interest, lien, claim or title conflicting with the plaintiff's claim, title or interest, for the purpose of determining such adverse estate, interest or claim, and to clear up all doubts and disputes and to quiet and settle the title to the property. Such action may be brought whether or not the plaintiff is entitled to the immediate or exclusive possession of the property.

Section 52-575: Entry upon land to be made within fifteen years. (A) 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 have been 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 . . .

As shown in the photographs offered in evidence, the property to the rear of the plaintiff's rental property (hereinafter, "the disputed property") is of mixed topography, grassy flat leading up to a berm overgrown with trees and underbrush which borders a brook, and is presently claimed to be owned by the defendants as present or former members of Brookview Condominium Assn. The condominiums were originally apartments, built in the early 1980s. The use to which the disputed property was put over the years was as an occasional extension of the rental properties' back yard including a portion of mowed grassy area and a seasonal garden in that portion. The tenants of the plaintiff were not aware of any specific boundaries to the backyards of their rented premises as there was no fence or signs posted to warn intruders. Once in 1989, when the trees on the berm were damaged by a storm, they were replaced by Attorney Rosa. In 1992 he had a drain installed to move some of the backyard standing water toward the brook. Attorney Rosa never occupied any of the rental units at 202-08 Westbury Park Road and visited his tenants sporadically, only when they contacted him with a landlord issue.

The disputed property would not be visible from the condominium complex and would not be visible from the street. The mowing of a part of the disputed property would only be visible if a condominium owner hiked overland through rough terrain from the condominium several yards. Attorney Rosa testified that no one ever gave him permission to use the disputed property and, during the relevant time period, no one ever refused him use of it.

In 1982, the condominium association installed a sewer trench and line through the disputed property. This sewer line commenced at the two buildings owned by the condominium association, extended across their parking lot, extended southerly along their considerable tract of property to a right-of-way at the southerly end of their property, and extended through the right-of-way before connecting to a sewer lateral on French Street. (Defendant's Exhibit 7, 9.) The installation of the line took several days and was accomplished with the use of heavy digging equipment.

Attorney Rosa provided no credible evidence that he paid taxes on the disputed property and/or contacted the tax authorities in the Town of Watertown to inquire as to whether he was being taxed on that land Professional documents concerning the 202-08 Westbury Park Road prepared over the period in question (e.g., A-2 survey of property in 1985 by Attorney Rosa, Plaintiff's Exhibit 9) did not show the disputed property as belonging to Attorney Rosa. Attorney Rosa's deed to 202-08 Westbury Park Road did not include this disputed property.

One of the defendants, Mr. Terry Paul, became the president of the condominium association in 1999. He had resided at the condominium since 1992. In the late 1990s, he walked the property line and discovered that trees were growing directly on the condominium's sewer line impairing the effectiveness of said line. He reported his findings to the association president who wrote to all adjacent property owners, including Attorney Rosa, advising them that the association would not permit any adjacent property owners to utilize association property. (Defendant's Exhibit 14.) In response, Attorney Rosa wrote, through counsel, in 1998, and claimed for the first time to own the disputed property by adverse possession. (Defendant's Exhibit 12.) Upon receiving Attorney Rosa's letter, the association surveyed its property. (Defendant's Exhibit 9.) The association then, in 1999, installed a fence across the westerly boundary of Attorney Rosa's deeded property. Attorney Rosa removed the fence, it was re-erected, and removed again, several times. This action was filed.

THE LAW

"[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." (Internal quotation marks omitted.) 1525 Highland Associates, LLC v. Fohl, 62 Conn. App. 612, 622-23, 772 A.2d 1128, cert. denied, 235 Conn. 919, 774 A.2d 137 (2001); see also General Statutes § 52-575(a).[3]

A finding of adverse possession "is not to be made out by inference, but by clear and positive proof . . . `[C]lear and convincing proof' . . . denotes 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 than the probability that they are false or do not exist." (Citations omitted; internal quotation marks omitted.) Wildwood Associates, Ltd. v. Esposito, 211 Conn. 36, 42, 557 A.2d 1241 (1989).

The burden of proof is on the party claiming adverse possession. Kramer v. Petisi, supra, 53 Conn. App. 67; Top Of The Town v. Somers Sportsmen's Assn, Inc., 69 Conn. App. 839, 842, 798 A.2d 445 (2002).

As applied to this case asserting adverse possessory rights to land it is the plaintiff's burden to prove:

a) the condominium owners were ousted from possession;

b) said ouster continued uninterrupted for a period of fifteen (15) years, specifically from 1970 to 1985, as alleged by the plaintiff;

c) possession was open, visible and exclusive by the plaintiff;

d) possession was under a claim of right;

e) possession was with the intent to use the property as the plaintiff's own; and

f) possession was without the consent of the condominium owners.

In evaluating the evidence in this case, the court finds the occasional activity on the disputed parcel by Attorney Rosa's tenants to be so sporadic and of such short duration as to be inconsequential. Normally, one tolerates intrusions such as lawn mowing in the interests of neighborhood harmony and friendship. In a residential area, such activity is not apt to attract the attention of a neighbor several parcels away through wooded terrain and certainly not apt to provoke a "get off my property" warning unless the parties are at odds or they are aware the user is asserting an adverse possession claim. The planting of the trees, in an already overgrown area, was a brief intrusion. The drain was below surface level and there was no testimony as to prolonged installation. Whether the control exerted was "exclusive" is seriously questioned by the credible testimony of the condominium association that in 1982 and thereafter it used the "disputed property" to install an active sewer line servicing the condominiums. If the control was ever "hostile," it was not until 1998, with the responsive letter from Attorney Rosa's counsel, well after the 15-year period claimed had expired. Even combining the lawn care with the in-ground drain usage, the possession and control still fall far short of what our appellate courts have indicated to be essential by such a claimant. Meshberg v. Bridgeport City Trust Co., 1 Conn. App. 10 (1983), and Sands Associates v. Rios, 6 Conn. App. 84 (1986). The defendants' activities here do not approach the evidence advanced in these two cases, and both claimants in those cases were unsuccessful.

CONCLUSION

After careful consideration of the evidence offered in this matter, the court concludes that the plaintiff has not met the standard of proof required to claim title to the premises in question and judgment is entered for the defendants on both counts.

ALVORD, JUDGE.