Home HEATHER C. LUFKIN and others [Note 1] v. TEODORA CARAKER

2016 Mass. App. Div. 98

March 25, 2016 - July 28, 2016

Appellate Division Northern District

Court Below: District Court, Framingham Division

Present: Coven, P.J., Singh & Nestor, JJ.

Richard B. Schafer and Anne C. Rosenberg for the plaintiffs.

Edward J. Collins for the defendant.

SINGH, J. On August 31, 2014, the husband of defendant Teodora Caraker (“Teodora”) of more than thirty years, Edward B. Caraker (“Edward”), [Note 2] passed away at the age of ninety-two. For the entirety of her marriage, Teodora had lived with her husband in a house in Wayland. Upon his death, Teodora learned that, shortly after her marriage to him, Edward had deeded the property to himself and his four daughters from his first marriage. [Note 3] As such, upon Edward’s death, the marital home passed to Teodora’s step-daughters, plaintiffs Heather C. Lufkin, Linda C. Rossini, Martha C. Tauer, and Emily C. Marsden (“step-daughters”). On December 8, 2014, the step-daughters gave Teodora a notice to quit by March 2, 2015. Teodora refused to do so. As a result, the step-daughters filed a summary process action, seeking to evict her. After a bench trial finding directed in favor of the step-daughters, Teodora filed this appeal.

Teodora contends that the trial judge erred in directing a finding in favor of the step-daughters on three grounds: (1) the District Court did not have subject matter jurisdiction over the dispute; (2) eviction was precluded by the Homestead Act, G.L. c. 188; and (3) eviction was precluded by the spousal elective share, G.L. c. 191, § 15.

1. Subject matter jurisdiction. Although Teodora did not raise the issue before the trial court, we address it because subject matter jurisdiction may be raised at any time, even for the first time in an appellate court. Jamgochian v. Dierker, 425 Mass. 565, 567 (1997). Teodora argues that although the District Court has subject matter jurisdiction over summary process cases, this case is not one in which summary process lies. The instances in which summary process may lie are listed in G.L. c. 239, § 1. See Nealon v. Johnson, 2013 Mass. App. Div. 38, 39, citing Fafard v. Lincoln Pharmacy of Milford, Inc.,

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439 Mass. 512, 514-515 (2003) (because summary process is purely statutory procedure, it may be maintained only in instances specifically provided for in statute). Among other things, that provision states that “if a person has acquired title to land or tenements by purchase, and the seller or any person holding under him refuses to surrender possession thereof to the buyer, . . . [then] the person entitled to the land or tenements may recover possession thereof under this chapter.” Teodora claims that this provision does not apply because the step-daughters never purchased the property from her.

According to the deed conveying the property to the step-daughters, however, consideration of $1.00 was paid for the grant of the property; thus, the step-daughters may be considered to have acquired title by purchase. See Black’s Law Dictionary 1467 (3d ed. 1933) (“word ‘purchase’ is used in law in contradistinction to ‘descent,’ and means any other mode of acquiring real property than by the common course of inheritance”). Additionally, although Edward, and not Teodora, was the seller, Teodora may be considered to be holding the property under Edward, particularly in light of her claim of right asserted in these proceedings. See Buron v. Brown, 336 Mass. 734, 735-736 (1958) (defendant in summary process considered to be “seller” for purposes of G.L. c. 239, § 1, where Probate and Family Court appointed commissioner to sell property owned by defendant and co-owner in partition proceedings). As a result, summary process is available under these circumstances.

Teodora also asserts that eviction by summary process does not lie because G.L. c. 239, § 8 provides that there “shall be no recovery under this chapter of any land or tenements of which the defendant, his ancestors or those under whom he holds the land or tenements have been in quiet possession for three years next before the commencement of the action unless the defendant’s estate therein is ended.” [Note 4] Teodora contends that she is entitled to protection under the statute because she has been in quiet possession for more than three years before the commencement of the summary process action. She also claims that her estate has not ended. The step-daughters argue that Teodora had no estate to be ended, other than a gratuitous one, which could be ended by a simple notice to quit. See Lavelle v. Lavelle, 2012 Mass. App. Div. 150, 151-152; Aloisi v. Kelley, 2009 Mass. App. Div. 207, 209. If the step-daughters are correct, then the December 8, 2014 notice to quit demanding that Teodora vacate by March 2, 2015 sufficed to end Teodora’s estate, and they properly brought this summary process action after the notice period had expired. See Lavelle, supra at 152. Teodora’s argument on this point is dependent on her other claims on appeal, which we now address.

2. The Homestead Act. Teodora contends that the Homestead Act provides her with a life estate in her marital home with Edward and therefore precludes her eviction by summary process. Under the Homestead Act, an estate of homestead may be acquired in a property, an exemption of up to $500,000, by an owner of the property who occupies it as his home. G.L. c. 188, §§ 1, 3. The estate is created by a written and recorded declaration. See id. and § 5. In the absence of a formal declaration of homestead, the law provides for an “automatic homestead exemption,” of up to $125,000. G.L. c. 188, §§ 1, 4.

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The homestead exemption allows the owner of the home and his family members, who also occupy the home, to remain in it, free from the claims of creditors who would seek to utilize the property to satisfy the owner’s debt. See Shamban v. Masidlover, 429 Mass. 50, 53 (1999), citing Dwyer v. Cempellin, 424 Mass. 26, 30 (1996).

Here, Edward never made a formal declaration of homestead. Thus, only the automatic homestead exemption would apply. Yet Teodora is not seeking an exemption from the claims of creditors. She is seeking to prevent owners of property from exercising their rights to recover possession of their property. There is no indication in the Homestead Act that it may be used in this manner. Even an owner of property with a declared homestead exemption in it cannot use the Act to defeat the rights of other owners of the property. See Ladd v. Swanson, 24 Mass. App. Ct. 644, 646 (1987) (tenant in common may not assert claim of homestead against cotenants in order to avoid partition of tenancy). See also Hershman-Tcherepnin v. Tcherepnin, 452 Mass. 77, 95 n.27 (2008) (noting that widow’s declaration of homestead would not defeat rights of her deceased husband’s four children from prior marriage to partition as tenants in common). We therefore reject Teodora’s claim that the Homestead Act prevents her eviction by summary process.

3. The spousal elective share. Teodora contends that her exercise of the spousal elective share, pursuant to G.L. c. 191, § 15, gives her one-third of Edward’s estate, including the marital home, and therefore precludes her eviction by summary process. The spousal elective share allows a surviving spouse to waive will provisions and elect instead to receive a statutory portion of the estate of the deceased spouse. Bongaards v. Millen, 440 Mass. 10, 11 (2003). Edward’s estate, however, did not include the marital home; rather, upon Edward’s death, the property passed directly to his four daughters, the surviving joint tenants of the property. See Petition of Smith, 361 Mass. 733, 737 (1972) (property held by joint tenancy passes to survivors by operation of law and does not constitute part of decedent’s estate). Teodora argues that, pursuant to the rule of Sullivan v. Burkin, 390 Mass. 864, 871-873 (1984), the marital home nevertheless should be deemed part of Edward’s estate.

In Sullivan, the Supreme Judicial Court announced a rule, to be applied prospectively, that “for the purposes of G.L. c. 191, § 15, assets of an inter vivos trust created during the marriage by the deceased spouse over which he or she alone had a general power of appointment, exercisable by deed or by will” are to be treated as part of the estate of the deceased. Id. at 872. Here, however, Edward did not place the property in an inter vivos trust. Rather, he deeded the property outright to himself and his daughters. As such, he gave up the ability to maintain sole control over the property. Nothing in Sullivan prevented Edward from disposing of the property during his lifetime as he did. See Bongaards, supra at 16-23 (declining to expand Sullivan rule beyond its terms). [Note 5] We therefore reject Teodora’s claim that the spousal elective share statute prevents her eviction by summary process.

Given that Teodora had no estate in the property, the notice to quit was sufficient to end her gratuitous tenancy, and the step-daughters properly brought the summary process complaint. The trial court properly directed a finding in favor of the step-daughters. We affirm the judgment. [Note 6]


[Note 1] Linda C. Rossini, Martha C. Tauer, and Emily C. Marsden.

[Note 2] We refer to Teodora Caraker and Edward B. Caraker by their first names because they share the same last name.

[Note 3] The property had been jointly owned by Edward and his first wife, as tenants by the entirety, for thirty years prior to her death in 1978. At that point, the property passed to Edward alone. Shortly after his marriage to Teodora in 1981, Edward deeded the property to himself and his daughters as joint tenants with right of survivorship. At the same time, he executed a will in which he left everything to his daughters. Neither the deed nor the will mentioned his wife at the time, Teodora.

[Note 4] Section 8 is a provision that has generally been used in the mortgage foreclosure context; it protects a mortgagor who has remained in possession after foreclosure of the mortgage but before sale of the premises. See Barry v. Dudley, 282 Mass. 258, 259 (1933); Dayton v. Brannelly, 255 Mass. 551, 552-553 (1926); Cunningham v. Davis, 175 Mass. 213, 222 (1900); Mitchell v. Shanley, 78 Mass. 206, 207 (1858).

[Note 5] Teodora raised this argument in the Probate and Family Court, which also rejected it.

[Note 6] However, we deny the step-daughters’ request for attorney’s fees.