Frost Vacationland Prop. v. Palmer
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 15
Docket:	Aro-98-144
Submitted
on Briefs:	November 20, 1998
Decided:	January 22, 1999

Panel:  CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

FROST VACATIONLAND PROPERTIES, INC.

v.

JAMES PALMER et al.

DANA, J.

	[¶1]  James and Linda Palmer appeal from an order of the Superior
Court (Aroostook County, Pierson, J.) affirming a summary judgment entered
in the District Court (Houlton, Griffiths, J.) in favor of Frost Vacationland
Properties, Inc. (Vacationland) in its forcible entry and detainer (FED)
action pursuant to 14 M.R.S.A. § 6001 (Supp. 1998).{1}  The Palmers argue
that Vacationland's FED action is precluded because they are disseisors that
have acquired a claim by possession and improvement.  We affirm the
judgment of the Superior Court.
	[¶2]  The facts in the light most favorable to the Palmers are as
follows.  In July 1992 Linda Palmer and Robert B. Fryer, Jr., President of
Vacationland, signed a purchase and sale agreement for parcel A of the
Peek-A-Boo Mountain Estates in Weston.  Linda submitted a partial down
payment of $250 and agreed to pay the total down payment of $1,000 at the
closing, which the parties scheduled for some time in August.  Linda further
agreed to pay the balance of the purchase price or $10,000 after the closing.
	[¶3]  On signing the purchase and sale agreement, Fryer told Linda
and her husband, James, that they could begin improvements on the land
immediately.  As a result, the Palmers provided a water hook-up, cleared the
lot, and installed a driveway and septic system.  Fryer also told the Palmers
that they could place a mobile home on the parcel.  
	[¶4]  Fryer delayed the closing date without an explanation.  During
this delay, the Palmers applied to the Maine Department of Environmental
Protection (DEP) and the Town of Weston for permission to improve the lot
and install a mobile home.  Later that fall, Fryer told the Palmers that there
was a problem with the title to parcel A, but he never indicated that he
could not complete the sale.  The Palmers continued to improve parcel A
and arranged, with Fryer's knowledge and consent, for an expensive
electrical hookup on the lot in early 1993.  The Palmers made $14,000
worth of improvements to parcel A. 
	[¶5]  In April 1993, the Palmers' attorney conducted a title search and
discovered that parcel A is a common area of the subdivision that cannot be
conveyed without a deed of release from all owners and an amendment to
the DEP subdivision approval plan.  The parties never completed the sale for
parcel A, and Fryer never accepted any payments from the Palmers other
than the initial payment of $250.  The Palmers, however, continued to use
parcel A.
	[¶6]  In February 1997, after serving a notice of termination on Linda
Palmer pursuant to 14 M.R.S.A. § 6002 (Supp. 1998), Vacationland brought
an FED action against the Palmers pursuant to 14 M.R.S.A. § 6001 (Supp.
1998). The District Court granted a summary judgment in favor of
Vacationland and the Palmers appealed to the Superior Court, seeking a jury
trial pursuant to M.R. Civ. P. 80(D)(j) and the issuance of a stay pending the
appeal. The Superior Court affirmed the judgment of the District Court. 
This appeal followed.           
	[¶7]  A trial court must enter a summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, referred to in the statements required by [M.R. Civ.
P.] 7(d) show that there is no genuine issue as to any material fact set forth
in those statements and that any party is entitled to a judgment as a matter
of law."  M.R. Civ. P. 56(c).  "On appeal from a grant of summary judgment,
we view the evidence in the light most favorable to the nonprevailing party,
and review the trial court decision for errors of law."  Greenvall v. Maine
Mutual Fire Ins. Co., 1998 ME 204, ¶ 5, 715 A.2d 949, 951.  When the
Superior Court acts as an intermediate appellate court, we review directly
the decision of the District Court.  See Melanson v. Matheson, 1998 ME
117, ¶ 6, 711 A.2d 147, 148.
	[¶8]  An FED action is a summary proceeding to determine the single
issue: who is entitled to the immediate possession of the property.  See
Tozier v. Tozier, 437 A.2d 645, 647 (Me. 1981).  The court's "adjudication
as to title relates only to the question of which of the parties to the action
may have a title superior to any of the other parties to the action, to provide
a basis for the further adjudication of which party has the right to the
immediate possession of the land in controversy."  Fraser v. Fraser, 598 A.2d
751, 753 (Me. 1991).   The District Court, by granting a summary judgment
in favor of Vacationland, concluded that Vacationland had the right to
immediate possession. 
	[¶9]  A party seeking a writ of possession pursuant to an FED action
must comply with section 6001(1).  See Rubin v. Josephson, 478 A.2d 665,
667 (Me. 1984).  Section 6001(1) sets forth those parties against whom an
FED action may be brought as follows:

Process of forcible entry and detainer may be maintained against
a disseisor who has not acquired any claim by possession and
improvement; [and] . . . against a tenant at will, whose tenancy
has been terminated as provided in [14 M.R.S.A. § 6002] . . . .

14 M.R.S.A. § 6001(1) (Supp. 1998).   The Palmers argue they are (1) not
tenants at will and (2) are disseisors who have acquired a claim by
possession and improvement.  We disagree.
	[¶10]   A tenant at will is "[o]ne who holds possession of premises by
permission of owner or landlord, but without fixed term."  Black's Law
Dictionary 1466 (6th ed. 1990).  A tenancy-at-will relationship may arise
even if the parties do not agree to the payment of rent or a landlord and
tenant relation does not exist.  See Fraser, 598 A.2d at 754 (FED action
brought against tenant at will who lived with tenant on landlord's land, did
not pay rent, and was not a party to lease);  Patterson v. Stoddard, 47 Me.
355, 356 (1860) (defendant, a prospective purchaser of land, assumes
tenant-at-will relationship with landowner when defendant moves on land,
sale is not completed, defendant does not pay rent, and parties do not enter
lease agreement).  Here, the Palmers never paid rent or entered into a lease
agreement with Vacationland.  See Fraser, 598 A.2d at 754; Patterson, 47
Me. at 356.  The Palmers entered on the land in contemplation of a sale of
that land, the sale was never completed, and the owner never demanded
rent.  See Patterson, 47 Me. at 356.  Vacationland permitted the Palmers to
remain on the premises.  See Fraser, 598 A.2d at 754; Patterson, 47 Me. at
356.  The Palmers, as tenants at will whose tenancy was terminated as
provided in section 6002, were therefore subject to an FED action.     
	[¶11]  Additionally, the Palmers are not disseisors.  A disseisor is one
who enters another's land "intending to usurp the possession and to oust
another of his freehold."  Sweeney v. Dahl, 140 Me. 133, 138, 34 A.2d 673,
675 (1943) (citation omitted).  A disseisin requires "[a] manifest intention
to oust the real owner."  Id.  (citation omitted).  A disseisin is "an actual,
visible, and exclusive appropriation of land, commenced and continued
under a claim of right, either under an openly avowed claim, or under a
constructive claim arising from the acts and circumstances attending the
appropriation to hold the land against him who was seized."  Id. (citation
omitted).
	[¶12]  Here, the Palmers have not demonstrated an "actual, visible,
and exclusive appropriation" of parcel A.  See id.  The Palmers entered the
land in contemplation of purchasing the land pursuant to a purchase and
sale agreement, not with a "manifest intention to oust the real owner."  See
id.  The Palmers continued to stay on the land in reliance on Fryer's
promises, not because of a declared "claim of right" for the appropriation of
parcel A.  Consequently, the Palmers were not disseisors pursuant to section
6001.
	[¶13]  Finally, even if they had been disseisors, the Palmers did not
establish a "claim by possession and improvement" that would have
precluded Vacationland from bringing an FED action against them.  A claim
by possession and improvement occurs when a party establishes a claim for
betterments pursuant to 14 M.R.S.A. § 6956 (1980){2} or by adverse
possession.  See United States v. Burrill, 107 Me. 382, 387, 78 A. 568, 570
(1910) (claim for betterments may arise out of adverse possession); Reed v.
Elwell, 46 Me. 270, 279 (1858) (dicta, noting disseisor must be in
possession long enough to be entitled to betterments).  The Palmers argue
that they made $14,000 worth of improvements to parcel A during the four
and one-half years between the signing of the purchase and sale agreement
and the commencement of this FED action.  Because a claim for betterments
pursuant to section 6956 requires a party to have possession of the land for
six years and the Palmers cannot claim betterments by adverse possession,
the Palmers have not successfully alleged "a claim by possession and
improvement" that precludes Vacationland's FED action.{3}
	[¶14]  Vacationland can maintain an FED action against the Palmers
either because they are tenants at will or because they are not disseisors
who have acquired a claim by possession and improvement.
	The entry is:
					Judgment affirmed.
                                          
Attorney for plaintiff:

Robert V. Hoy, Esq.
Platz & Thompson, P.A.
P O Box 960
Lewiston, ME 04243-0960

Attorney for defendants:

Robert M. Morris, Esq.
Carton, Davis & Morris, P.A.
6 Cumberland Ave.
Brunswick, ME 04011

FOOTNOTES******************************** {1} . Title 14 M.R.S.A. § 6001 provides in pertinent part: Persons against whom process may be maintained. Process of forcible entry and detainer may be maintained against a disseisor who has not acquired any claim by possession and improvement; against a tenant holding under a written lease or contract or person holding under such a tenant; against a tenant where the occupancy of the premises is incidental to the employment of a tenant; at the expiration or forfeiture of the term, without notice, if commenced within 7 days from the expiration or forfeiture of the term; against a tenant at will, whose tenancy has been terminated as provided in [14 M.R.S.A. § 6002] . . . . . . . . 14 M.R.S.A. § 6001 (Supp. 1998). {2} . Title 14 M.R.S.A. § 6956 provides: Betterments allowed after 6 years' possession When the demanded premises have been in the actual possession of the defendant or of those under whom he claims for 6 successive years or more before commencement of the action, such defendant shall be allowed a compensation for the value of any buildings and improvements on the premises made by him or by those under him whom he claims, to be ascertained and adjusted as provided. 14 M.R.S.A. § 6956 (1980). {3} . The Palmers may pursue any equitable or legal claims to title against Vacationland in a real action. See Fraser, 598 A.2d at 753 (defendant in an FED action "is free to seek a determination of any legal or equitable title rights she may have in the dwelling in a plenary proceeding, such as a real action or an action for declaratory judgment.").