Apr 27, 2022
A partition action is a legal proceeding to force the sale of real estate that is held by two or more joint tenants (or tenants in common), in order to fairly divide the sale proceeds among the owners. A partition action is often used as a last resort when one or more owners want to sell, but cannot agree with the other owners on the terms of the sale. Partition actions are governed entirely by Chapter 241 of the Massachusetts General Laws. Pursuant to G.L. c. 241, §1, “[a]ny person, except a tenant by the entirety [a married couple], owning a present undivided legal estate in land, not subject to redemption” has a right to partition. What happens, however, when a partition action is initiated, but one joint tenant dies during the partition proceedings, but before the property is sold?
This question is properly addressed in the SJC decision of Freda Battle, as personal representative of the Estate of Charles R. Dunn, v. Barbara Howard, SJC-13177. A copy of the decision can be review by clicking this link.
Dunn v. Howard serves as a reminder of the key difference between holding property as joint tenants with rights of survivorship or tenants in common.
In Dunn v. Howard, the parties owned a property in the Dorchester neighborhood of Boston as joint tenants with rights of survivorship since 1993. Then, at the age of 93, Dunn brought a partition action seeking a sale of the property. As the property could not be advantageously divided (that is, physically divided), the Court appointed a commissioner and issued a warrant for the sale of the property. Thereafter, on or about January 30, 2021, the appointed commissioner accepted an offer to purchase the property, which was “subject to approval by this Court [the Land Court].” Following the accepted offer, the commissioner was to prepare a purchase and sale agreement for the Court’s review and approval. However, before the Court approved the sale, Dunn passed away.
Following Dunn’s passing, Howard filed a motion to dismiss the partition action arguing that Dunn’s interest in the property vested in Howard at the time of his death and that the filing of the partition action did not sever the joint tenancy. The Land Court denied the motion to dismiss, which Howard appealed and the SJC took up the matter sua sponte.
The SJC concluded that the initiation of the partition action, the subsequent proceedings, and the acceptance of the offer did not serve to sever the joint tenancy. That is because a joint tenancy can only be severed when one of the four unities is destroyed.1 “Generally, acts that will severe one or more of the four unities and terminate a joint tenancy include alienation of the land by conveyance, including some forms of granting a mortgage by one or more joint owners, and severance by partition.” As the filing of the petition to partition did not sever the joint tenancy, the SJC noted that the operative act that would have severed the joint tenancy would have been the commissioner’s actual conveyance of the property by deed to the buyer. “Thus, until Dunn’s death, the parties remained joint tenants with a right of survivorship. When Dunn died, Howard became the sole owner of the property.”
The Court further addressed the potential buyer’s right to possess the property based upon the accepted offer to purchase and differentiated this case from McCarthy v. Tobin, 429 Mass. 84 (1999). In McCarthy, the SJC held that where there is a firm offer and all materials terms have been agreed to by the parties, the offer to purchase creates a binding contract to sell entitling the buyer to specific performance. In this case, however, the terms of the offer between the commission and the buyer were subject to the approval of the Land Court judge, the parties’ had the ability to object to the sale, and the parties’ had the right to prevent the sale by matching the buyer’s offer or presenting their own offer. Additionally, the acceptance of an offer does not bring about the conveyance itself and did not alter the owner’s property rights. Accordingly, based on the foregoing, the SJC concluded that the buyer’s offer did not manifest the same definite intent to be bound as the buyer in McCarthy and the buyer did not possess property rights in the property.
In conclusion, the SJC held that the heirs of a decedent in a partition action do not have standing to continue a partition action. That is because the heirs of a joint tenant with rights of survivorship do not inherit the interests in the property, as it passes to the other joint tenant by operation of law. As such, the SJC found that the motion to dismiss should have been allowed on the grounds that Dunn’s heirs lacked standing as they held no interests in the property.
While G.L. c. 241 provides an “out” from the shared ownership of property, Dunn v. Howard serves as a reminder of the key difference between holding property as joint tenants with rights of survivorship or tenants in common. Joint tenants with rights of survivorship operate to the disadvantage of heirs, where tenants in common hold property together, but their respective interests in the property pass to their heirs at death. Joint tenants with rights of survivorship, much like tenants by the entirety (married couples), hold the property together until death when the decedent’s interests pass to the other owner, which cannot be severed by the initiation of a partition action. For advice on pursuing a petition to partition, the counsel of an experienced real estate attorney is recommended.
1 The four unities are: (i) interest, (ii) title, (iii) time, and (iv) possession.