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Division of Massachusetts Property Uncertain After Co-Owner Dies During Legal Proceedings

It is not uncommon for issues regarding property ownership to arise after the death of one of the co-owners.  In a December 19, 2018 Massachusetts real estate case, the Land Court decided a partition action among three brothers who co-owned a residential property.  During the course of the legal proceedings, however, one of the co-owners died, calling into question how the property should be divided.

When the partition action was initially filed in Land Court, the brothers held the property as joint owners with right of survivorship.  The partition would have terminated the joint tenancy with right of survivorship.  Therefore, had all three lived, a partition by sale and subsequent division of the proceeds would have provided one third of the net sale amount to each brother.

After the death of the one of the brothers during the partition proceedings, however, the Land Court was faced with another issue.  The question for the court was whether the net proceeds should be split in half between the two remaining survivors, or whether the partition proceedings had ended the joint tenancy and converted it to a tenancy in common, in which case the two surviving brothers would receive one third of the sale proceeds and the estate of the deceased brother would receive one third.

The Land Court first noted that the ownership structure of the property at issue was created as a joint tenancy with right of survivorship, and thus, with the intent that the survivors have the deceased’s interests in the property.  The court found that this intention was clearly expressed by the nature of the tenancy, and by the deceased brother himself, who was one of the grantors of the deed creating the tenancy.  The court also explained that the mere filing of a partition action does not sever the tenancy.  Rather, the tenancy continues up to a certain point, during which time survivorship rights remain.

Generally, the point in which joint tenancies are destroyed by partition occurs when the property is actually conveyed.  In this case, an interlocutory order had been entered declaring that the property was owned by the parties as joint tenants with rights of survivorship.  The order was entered by the partition commissioner two weeks after the brother had passed away.  However, that order was not appealed by either of the surviving brother and became final.  Land Court concluded that, as such, the joint tenancy was and would remains a joint tenancy until the property was sold.  The proceeds would then be split between the surviving brothers equally.

At Pulgini & Norton, our residential property lawyers assist Massachusetts homeowners and other individuals in advancing their real estate goals.  We can provide legal representation in residential purchases and sales, land use and zoning appeals, mortgage re-financing, foreclosure proceedings, and many other issues. Call (781) 843-2200 today to request a consultation with one of our skilled real estate attorneys, or contact Pulgini & Norton online.

More Blog Posts:

Massachusetts Homeowners Seek Declaration That Road Bordering Their Property Is Public Way, Massachusetts Real Estate Lawyer Blog, published March 27, 2018

Massachusetts Property Owner Petitions to Register Title to Salt Meadow Based on 1886 Deed, Massachusetts Real Estate Lawyer Blog, published October 9, 2017

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