What is a Partition?

When co-owners of real estate cannot agree on when or how to sell their property, each of the co-owners are entitled to petition for partition. A petition to partition is a lawsuit which asks a court to order the sale or division of the property. “Any person, except a tenant by the entirety, owning a present undivided legal estate in land […], shall be entitled to have partition in the manner hereinafter provided.” M.G.L. c. 241 § 1. A beneficiary of a trust, a shareholder of a corporation, or member of an limited liability company are not entitled to partition. See e.g. Minkin v. Commissioner of Revenue, 425 Mass. 174, 180 (1997). The probate courts and the land court has concurrent jurisdiction of all petitions for partition. M.G.L. c. 241 § 2.

The petitioner may request the sale or division of the subject real estate. Sale may only be ordered if the court finds that the land cannot be divided advantageously. M.G.L. c. 241 § 31. If the court orders sale, the land will be sold at public auction unless the court finds that the interests of all parties will be served by a private sale. Id.

After the petition is filed and the court has determined that the petitioner is entitled to partition, the court will enter an interlocutory decree that partition be made. Id. at § 10. After the decree issues, a warrant is issued to a disinterested commissioner. Id. at § 12. Once the commissioner’s return is confirmed, a final decree enters. The final decree is recorded at the registry of deeds and the decree has the effect of transferring the property. In a partition by sale, a deed is delivered by the commissioner which transfers the property.

The court will address other matters related to the partition. For instance, accounting issues including the expenses of the partition proceedings, including: counsel’s fees, fees for the commissioners, title exams, and preparation of plan. Fees and expenses will be shared by all co-owners in proportion of their interests.

While petitions for partition are common, it is less common that the entire process is completed. The added expenses which include attorney’s fees, commissioner’s fees, and the potential for below market sale prices convince most parties to agree to a sale prior to a final decree. If you are the co-owner of real estate and want to explore your right to a partition, contact Benjamin Cote to set an appointment.

The Massachusetts Eviction Moratorium: Can a Landlord Evict a Tenant During COVID-19?

Many landlords have asked what evictions are currently permitted in light of the eviction moratorium? Governor Baker signed H.4647 into law on April 20, 2020: “An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency” (the “Moratorium”). The Moratorium severely limits a landlord’s right to evict a tenant. This article will describe the types of evictions that may and may not proceed.

The Moratorium pauses all “non-essential” evictions. A non-essential eviction is an eviction for:

  1. for non-payment of rent;
  2. resulting from a foreclosure;
  3. for no fault or no cause; or
  4. for cause that does not involve or include allegations of:
    • criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or
    • lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.

Landlords are prohibited from serving a notice to quit, filing a summons and complaint, enforcing an existing execution, or proceeding in court for all cases except those identified in item 4. Existing cases are essentially paused until the Moratorium expires. The Moratorium expires on the later of: 1) August 18, 2020, or 2) forty-five (45) days after the COVID-19 emergency declaration has been lifted, whichever is sooner. An unusual feature of the law is that the Governor may extend the law in up to ninety (90) day increments, not to exceed forty-five (45) days after the COVID-19 emergency declaration has been lifted. Governor Baker has extended the Moratorium through October 17, 2020. The practical effect is that the Moratorium is indefinite in length.

As noted above, evictions may proceed for lease violations or criminal activity that impacts the health and safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property, or the general public. We should consider some examples:

Example 1: A tenant is constructing or storing incendiary devices on the property. This activity is illegal and it impacts the health and safety of the persons protected by the Moratorium. It would seem that an eviction could proceed under those facts.

Example 2: A tenant has a dog in the apartment which violates the terms of the lease. This activity is not illegal and it does not impact the health and safety of the persons protected by the moratorium. This eviction could not proceed under these facts.

Example 3: A tenant Is operating an unlicensed at home business in violation of the lease. The activity is illegal because it is unlicensed and it may impact the health and safety of the persons protected by the moratorium since it invites outside public onto the property which increases the likelihood of spreading COVID-19 to other residents. Further, some types of professions are highly regulated to protect the public. Performing such a profession unlicensed may be deemed to impact the health and safety of persons lawfully on the property and the general public. These facts may entitle the landlord to proceed with an eviction.

The natural question is “what is a landlord to do?” The Moratorium specifically states that “Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.” As most landlords know, most judgements against tenants go unpaid. While impractical, a suit for breach of contract for non-payment or rent may proceed in spite of the Moratorium. A landlord may also see equitable relief. For instance, if a tenant is damaging an apartment, a landlord may bring a suit for breach of contract and ask the court to enjoin the tenant from making further damage. If the tenant continues, the landlord may request that the tenant be held in contempt. Each of these remedies lacks the punch that an eviction provides a landlord. The Moratorium provides relief to some landlords by prohibiting certain foreclosures.

Legal challenges to the Moratorium have already taken place. In Matorin et al v. Commonwealth of Massachusetts, et al, Suffolk Sup. Ct. CA 2084CV01334, Judge Paul D. Wilson denied the Plaintiffs’ motion for a preliminary injunction. Click here to read the full text of the decision. Judge Wilson’s decision carefully considered the Plaintiffs’ constitutional claims including: 1) separation of powers under Article 30 of the Massachusetts Declaration of Rights, 2) Access to the Courts under Article 11 of the Massachusetts Declaration of Rihts, 3) Taking of Real Estate under Article 10 of the Massachusetts Declaration of Rights. Judge Wilson found that the Plaintiffs are unlikely to succeed on the merits of their claims, they are unlikely to suffer irreparable harm, and the balance of harms and public interest favor upholding the Moratorium.

The Plaintiffs in the Matorin case also filed suit in the United States District Court District of Massachusetts. See. Baptiste et al v. Commonwealth of Massachusetts et al, CA 1:20-CV-11335. The Plaintiffs are seeking a preliminary injunction. While Judge Wolf has not issued a ruling on the Plaintiffs’ motion, the Plaintiffs’ motion may be read here. Plaintiffs argue that the Moratorium violates their rights under the First Amendment to the U.S. Constitution, the Moratorium is a taking of real property in violation of the Fifth Amendment to the U.S. Constitution, and Violates the Contracts Clause under Art. 1. § 10 of the U.S. Constitution.  Judge Wolf is likely to issue a ruling on the motion at any time.

The Moratorium has significantly limited the availability of evictions in Massachusetts. If you would like to discuss the Moratorium, contact Benjamin Cote.

Objecting to Petition to Will or Appointment of Personal Representative

Photo by Jordan Benton from Pexels.

Suppose you have received a citation in the mail notifying you that your sibling has filed a petition to open an informal probate of the will and appointment of a personal representative for your mother’s estate. You might be wondering: what does this mean and what must I do to object to the petition? This article is meant to provide some of the basics of filing an appearance and objection with the Probate and Family Court.

What is a citation?

A citation is a notice prepared by the Probate and Family Court which must be sent to each interested person in connection with an estate. Click here to see a sample citation. Chances are, if you have received a citation in the mail, you are an heir of the estate or named in the will that has been filed with the Court.

What does a citation notify me of?

A citation notifies the interested person that a petition has been filed and further notifies the interested person that they have until 10:00 AM on the return date to file a written notice of objection.

Why would I want to object to a petition?

There are many reasons that a person may decide to object to a petition. For instance, you may feel that the will being probated is not the most recent will, the will is the product of undue influence, duress, or forgery, the personal representative lacks priority of appointment, or there is some other defect with the petition that should be corrected.

How would I file an objection?

An interested person who wants to object pursuant to M.G.L. c. 190B §1-401(d) should file Notice of Appearance and Objection – MPC Form 505a (If you have trouble opening this form, right click and click “save link as” and open the file outside of your browser). The Notice of Appearance and Objection must be filed with the clerk’s office no later than 10:00 AM on the return date. Objectors are permitted to file an affidavit of objections no later than thirty (30) days of the return date. Id.

The return day is within the next few days, what should I do?

Call an attorney or print out Notice of Appearance and Objection – MPC Form 505a, complete it, and return by hand to the clerk’s office for the Probate and Family Court. If you later decide that you do not want to pursue the objection, you may file a withdrawal of your objection. By filing the objection, you preserve your rights.

If you have received a citation and have questions, contact Benjamin Cote to discuss whether filing an objection is in your best interest.

Copyright © 2020 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts. Always consult with an attorney.