Dividing property held in joint ownership may require a court order in cases where the owners cannot reach an agreement. In a September 5, 2018 Massachusetts real estate case, the Appeals Court reviewed an order of a lower court dividing the property owned by the parties.
The parties in the case owned two noncontiguous parcels as tenants in common. The plaintiff filed a petition for partition, alleging that physical division of the property was impossible and seeking a sale of both lots. The lower court divided the property by awarding the more valuable parcel to the defendants, with a monetary payment to the plaintiff to make up the difference in value. The plaintiff appealed, arguing that the lower court should not have relied on appraisals to determine the value of the property, and instead, should have ordered a public or private sale.
In a Massachusetts partition action, a sale is not simply an equally available alternative to a physical division. Nor does the difficulty and complexity of achieving a just and equitable physical division of the property, alone, justify a sale. Rather, the court may only order a sale after it determines by a preponderance of the evidence that the land cannot be divided advantageously. Generally, the advantage or disadvantage of a division must be a pecuniary one. The judge may take into account the physical condition of the land to be divided, together with any potential damage to the profitability of the land. In cases involving multiple noncontiguous lots, as here, the court may divide the property by awarding intact lots to the various parties, rather than by physically dividing each lot by metes and bounds.
On appeal, the court noted that the parties had agreed that neither of the two lots should be physically divided to create new, smaller lots. Therefore, the only available options were to order one or both of the lots sold, and/or to order one or both of the lots set off with any necessary payment made to the party receiving less value. The court went on to find that the evidence supported that the land could be advantageously divided by awarding the more valuable parcel to the defendants and awarding the less valuable parcel with a monetary payment to the plaintiff.
The appeals court also addressed the plaintiff’s argument that he could have obtained a higher cash payment through a sale of the parcel awarded to the defendants. The court noted that the plaintiff had agreed to the appraised value of the property and, as division of land is preferable to sale, the judge had properly awarded the parcel to the defendants with a set off payment to the plaintiff.
At Pulgini & Norton, our experienced property lawyers can provide legal guidance in matters concerning residential real estate and land use in Massachusetts. We assist homeowners in property division, condo sales and purchases, permit applications, and other residential land transactions. Arrange your free consultation by calling our office at (781) 843-2200 or submitting our contact form online.
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Massachusetts Homeowner Wins Land Action Against Town, Acquires Use of Private Roadway, Massachusetts Real Estate Lawyer Blog, published September 18, 2017
Massachusetts Plaintiff Seeks to Enforce Greater Easement Rights Against Town in Property Action, Massachusetts Real Estate Lawyer Blog, published September 11, 2017
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