WELLFLEET — To decide who owns the land off Old King’s Highway where 12 units of affordable housing were built in 2002, the state Land Court judge doesn’t have to look any further than the 1922 deed Chellise and Kevin Sexton have used to challenge the town’s ownership of it. That was the gist of the case made by the lawyer from the state attorney general’s office during post-trial arguments on Friday.
The property’s description is clear and the boundaries named in the Sextons’ deed are “unambiguous,” said attorney Kendra Kinscherf — and they don’t describe the land now being claimed by the Sextons.
Chellise Sexton of Eastham and her son Kevin of Wellfleet sued the town in Land Court in 2017, claiming they owned the property off Old King’s Highway now called Fred Bell Way. The Sextons asked the court to award them title to the land, order the town off the property, and award damages for rents and profits connected to use of the land to them.
The town took the property at 324 Old King’s Highway from Ralph Witcher in 1967 for taxes owed. In 1993, town meeting voters turned ownership over to the Wellfleet Housing Authority for it to be used for affordable housing. In 2001, the housing authority leased the property for 60 years to the Lower Cape Community Development Corp., now called the Community Development Partnership (CDP). The nonprofit built 12 units of affordable housing on the site in 2002 and continues to manage it.
When the Sextons filed their suit claiming ownership of the land, they argued the town doesn’t own the property where the affordable housing was built and that its deed is to another parcel now listed as being owned by the National Seashore.
The 1922 deed the Sextons cited lists Laura Lamson conveying land to Edwin Cook. The Sextons trace deeds over the years conveying the property to Cook’s descendants and ultimately to Chellise Sexton, whose mother was a Cook.
The court has split the trial into two phases. In the first, the judge will determine whether the Sextons have a claim to 324 Old King’s Highway that is superior to the town’s claim. That phase wrapped up on Friday with post-trial arguments.
Kinscherf argued on behalf of the long list of defendants in the suit, which includes the town, the Wellfleet Housing Authority, the state Dept. of Housing and Community Development (which helped finance the $1.5-million affordable housing project), the CDP, and various others.
The 1922 deed described the land being conveyed as bordered by properties on two sides that were owned by Cook. Both sides have agreed, however, that Cook never owned the properties directly abutting the land being disputed. Cook’s property was further away.
“So whatever land they intended to convey by the 1922 deed, it was not the disputed property,” Kinscherf said.
Attorney Albert Schulz, representing the Sextons, argued that it was not unusual to use generalized bounds on deeds conveying land. “That happens every day,” said Schulz, who added that the land in dispute was within the boundaries of the larger tract being described in the 1922 deed.
The numerous deeds connected to Edwin Cook reflect “his speculative interest in parcels all over the area,” Kinscherf said, so he was no novice at buying and selling land. He would not have accepted and recorded a deed that described the parcel being conveyed as abutting his, she argued, since it would not have been accurate.
“The plaintiffs’ theory, taken to its logical extreme, would mean that an unambiguous deed description could be rendered meaningless 100 years after it is recorded,” Kinscherf said. “It would eviscerate the purpose of laws governing real estate transactions.”
As part of their legal effort to take ownership of the land, the Sextons have asked the court to revoke easements the town had granted to allow an access road to be built to a nearby neighborhood of homes to which the road now provides the sole access.
On Friday, attorney Giles Krill, representing some abutters, said the easement had been registered in court, and the Sextons were attempting to invalidate the registration based on some procedural defects.
Judge Robert Foster is expected to make his ruling in three to six months. If the judge rules that the Sextons don’t have superior title to the land, their case is over.
If the ruling favors the Sextons, however, the trial will move to the second phase, dealing with possession of the property. The town would then mount its opposition. To win an ownership claim under the legal doctrine of adverse possession, a party must have actively and continuously used the property for 20 years. The town didn’t start actively using the site until 2001, and the Sextons filed their court case in 2017, 16 years later.
There are statutes that may allow the CDP and the town to ask that the Sextons pay a minimum of $1.5 million for the housing built on the property should they win their case.
