Robert Nislick By Robert Nislick
When siblings do not get along, and their parents are deceased, and they have inherited real estate, disagreements often arise about what to do with the property. One brother Alan may have lived in the family farmhouse for most of his life or may have a sentimental attachment to it. Although the property may have development potential, Alan has no intention of selling and moving.
Brother Bob may own 50% of the property and wants to sell it. Bob does not live at the property, and has no use for the property, and yet he finds himself contributing towards the insurance and taxes on the property. The property may be worth millions of dollars. Yet Bob feels helpless and frustrated because Alan refuses to budge. Alan is effectively preventing Bob from turning his inheritance into cash.
This is just one scenario which may cause one person to file a petition for partition against the other. A petition for partition may be filed in either the Land Court or in the Probate and Family Court.[1]
Let’s say your brother or sister has filed a petition for partition against you. A constable or sheriff arrives at your door. You have just been served with multiple documents including a summons, a copy of the petition[2], and a civil cover sheet. You may also see that the petitioner has filed a notice at the registry of deeds concerning the filing of the petition for partition.[3] It would be wise to contact a Massachusetts real estate litigation attorney to represent you.
The Land Court’s standard practice is to schedule a case management conference, which may occur a month or two after the case is filed. As of early 2023, the court is still conducting this event by zoom. While the attorneys are obligated to attend this event, it is usually advisable for the parties to attend as well.
At the case management conference, the judge is likely to explain to the parties that co-owners of property in the Commonwealth have an absolute right to partition pursuant to G. L. c. 241.[4] The court will likely inquire whether it is possible to physically divide the property. It may be clear, however, that dividing the property is not possible, for example, if the property is a condominium unit.
The court will probably tell the parties that the potential outcomes are limited. One outcome could include a sale of the property to a third party, followed by an equitable distribution of the sale proceeds. An alternative outcome could be an agreement whereby one party buys out the other.
If the parties cannot agree, the court will appoint another attorney to serve as the partition commissioner, who is empowered to take control of the property, sell it, and distribute the sale proceeds.[5] The commissioner will charge his or her regular hourly rate, and the parties will pay in proportion to their respective shares. The commissioner’s fees are paid out of the sale proceeds.
The parties can avoid the necessity of appointing a partition commissioner. It may be possible to reach a fair resolution. A good agreement may include a provision whereby the parties agree to jointly retain a certain broker to market and sell the property. The agreement may specify that each owner shall be responsible for the broker’s fees and expenses in proportion to his or her ownership interest.
The agreement may also provide that the parties will collectively retain an attorney to act as the closing attorney for both of them. The agreement may provide that the closing attorney will undertake the traditional tasks of a sellers’ counsel, including negotiating the purchase and sale agreement, obtaining a municipal lien certificate and whatever additional documents might be necessary to convey good and clear record and marketable title, prepare a deed, prepare the settlement statement, close the transaction, and distribute the sale proceeds. The agreement may specify that each owner shall be responsible for the closing attorney’s fees and expenses in proportion to his or her ownership interest.
The agreement may also specify that the broker, closing attorney, and any other persons retained in connection with the sale shall take direction jointly from the parties’ litigation counsel.
The agreement should also clearly specify whether any adjustments shall be made. It should also specify how expenses such as taxes and insurance will be paid from the time that the agreement is signed until the sale occurs.
The success of such an agreement may depend in part on the relationship between opposing counsel. Opposing counsel who get along well can greatly help the parties achieve an efficient resolution. Regardless of the reasons for the parties’ relationship having suffered in the past, good counsel can aid the client in viewing the dispute with less emotional intensity and more as a business decision.
About the author: Robert Nislick is a Massachusetts real estate lawyer and former law clerk of the Land Court. For more information, contact him at (508) 405-1238, or by e-mail.
[1] See G. L. c. 241, § 2; G. L. c. 185, § 1 (t).
[2] See G. L. c. 241, § 6 (form and contents of petition).
[3] See G. L. c. 241, § 7 (notice and affidavit requirements).
[4] See G. L. c. 241, § 1 (persons entitled to partition); Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 92 (2008).
[5] See G. L. c. 241, § 12 (appointment of partition commissioner).
Thank you for posting this. It provides great information for anyone owning or inheriting registered property, whether through a tenancy in common or joint tenancy ( I imagine partition demands in a tenancy by the entirety are dictated by the rulings of the family and probate court).
As a former owner of a real estate brokerage, I can’t tell you how many unhappy “sellers” we had to refer to an attorney because an estranged brother or sister’s name showed up in a deed at the Registry or Land Court, preventing us from immediately marketing the property (once burned, twice shy). Along with that, I had to deal with angry agents, desperately trying to do anything to protect a commission that would fade away when the court appointed Commissioner utilized the services of another brokerage to sell the property.
Unfortunately, the “Agreement” between co-owners that you discuss is seldom made. I’ve only seen one which was drafted by an attorney/executor upon the devise of a house to the testator’s children. The attorney/executor smartly included rights, responsibilities and obligations of the siblings to each other and the property, including maintenance, repairs and property taxes, as well as rights and obligations to contribute and share in rents. Lastly (which I thought was really clever), the will dictated the title covenants to be conveyed in the deed upon death (this was recorded land – it would have been n/a if it was registered land), which gave the now deceased father some assurance that the property would stay in the family. For this reason, this particular agreement did not have any language pertaining to choice of real estate agent/agency in the event of partition, because the land was essentially unmarketable without a lot of expense to clear title.