WELLFLEET — Chellise Sexton of Eastham and her son, Kevin Sexton of Wellfleet, claim that they own the property off Old King’s Highway, now called Fred Bell Way, where the town built 12 units of affordable housing about 18 years ago.
The Sextons filed a complaint against the town and a long list of others in state Land Court in 2017. They asked the court to order the town off the property, invalidate a handful of utility easements, and award damages for rents and profits connected to use of the land as well as title to the property to them.
At issue are 8.6 acres at 324 Old King’s Highway. The town took the land for taxes owed — a grand total of $96.54 — from Ralph Whitcher in 1967. In 1993, town meeting voters turned ownership over to the Wellfleet Housing Authority to build affordable housing there.
The plan marched forward slowly. 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 Eastham-based nonprofit that built the 12 units of housing on the site and continues to manage the project.
The Sextons have sued the town, the Wellfleet Housing Authority, the CDP, and various others, including utility companies, the state (because of the involvement of the Dept. of Housing and Community Development), and even the United States of America, probably in connection to federal subsidies, affordable housing restrictions, and mortgages.
A long list of attorneys hired by those entities are involved in the case.
In the complaint, filed by the Sextons’ lawyer, Albert Schulz of Osterville, the plaintiffs trace the deed they claim gives them ownership to 324 Old King’s Highway back to 1829. The town’s title examiner and the Sextons’ experts disagree on the ownership trail starting in 1922. The Sextons say the property passed through the ownership of several Cooks and ultimately to Chellise Cook Cardinal.
It was conveyed to her daughter, Chellise Sexton, in 1985, according to the complaint. And in 2009, it was recorded on the deed as belonging to Chellise and Kevin Sexton as tenants in common.
The Sextons claim the property the town took from Ralph Whitcher for unpaid taxes in 1967 is not the property on which the town built affordable housing. That property is the one they own, they claim, based on their deeds. Those deeds describe the land in terms of the abutting property owners or boundaries, such as railroad tracks. Sometimes those boundaries are no longer very clear.
The Sextons say the land owned by the town is another piece of property and its current listed owner is the Cape Cod National Seashore.
Boston attorney Zachary Berk was hired by the title insurance company to represent the CDP and other entities connected to the mortgages held on the property. He explained that the court has divided the case into two phases. The first will establish whether the Sextons have good claim to 324 Old King’s Highway, Berk said.
“If they don’t have good title, they can’t challenge the town’s title,” said Berk. “If the plaintiffs lose in the first phase, the case is over.”
After several Covid-related delays, phase one of the trial was held in March. The Sextons submitted testimony from two experts who said their claim to the land is valid. The town submitted its own expert’s analysis of its deeds, although it wasn’t necessary to do so.
“In our case, the town has a record title in the registry of deeds,” Berk said. “If you have a record title, you don’t have to prove anything.”
Final post-trial arguments were due at the end of this month, and a hearing has been set for July 6, but Berk said attorneys on both sides are discussing pushing those dates further into the future. Berk said he expects a decision on phase one in three to six months.
According to a joint filing in March, both sides agreed that if the Sextons prevail in phase one “they will have record title superior to the defendants and sufficient to proceed to Phase II in order to pursue writ of entry,” which means possession of the property.
If that happens, the town and the Wellfleet Housing Authority, represented by Justin Perrotta of KP Law, the CDP, represented by Berk, and the various other entities will mount their own offense against the Sextons.
“There’s a statute in Massachusetts law that arguably provides that if a party improves a parcel and the other party doesn’t say anything for six years, then you are entitled to the value of the improvements,” Berk said.
The Sextons didn’t assert their claim to the property until 2017, 15 years after the Lower Cape CDC had built its complex. That organization and the Wellfleet Housing Authority are claiming they should be paid a minimum of $1.5 million for the housing that was built there — if the Sextons claim ownership of the property.
Some Land Court cases are settled by claims of adverse possession, which under state law is the conspicuous and active use of a property without permission for an uninterrupted minimum of 20 years. One of the attorneys cited it as a possible claim in this case. The town, however, was not actively using the property until 2001, when it moved forward with the housing project, and the Sextons filed their case in 2017, 16 years later.
Attorney Schulz declined to comment on the case. Chellise Sexton, who is 75, was approached by a reporter at her home with questions about the suit. She responded, “I know nothing about it,” and walked away.
Kevin Sexton, 47, did not respond to a message left at his home on Lecount Hollow Road.
The Sexton family owns Cooks by the Ocean, a 24.6-acre compound of rental cottages at 420 Lecount Hollow Road, along with various other properties in Wellfleet. They have also sued many other private landowners, claiming to hold the true titles to their property.
In 2003, Chellise Sexton filed a complaint in Barnstable Superior Court against the heirs of Woodbury W. Smith and others, and against Alfred Pickard, who had purchased the Smith property, claiming she was the rightful title holder to 521 Old King’s Highway. In 2006, the court denied her claim.
Kevin Sexton has another pending lawsuit against Wellfleet appealing a cease-and-desist order issued after his family clearcut a large swath of woods on their property next to Lecount Hollow Beach last June. Former Building Inspector Paul Fowler had determined that the Sextons violated zoning laws governing the National Seashore District, in which their property is located. Fowler issued the cease-and-desist order, which the Sextons then asked the zoning board of appeals to overturn.
When the zoning board upheld Fowler’s order, Kevin Sexton filed the lawsuit against the ZBA in state Land Court.