Plaintiff City of Woburn filed a verified Complaint to Foreclose Tax Lien on March 3, 2005 for property that it took for non-payment of taxes and owned by Defendant William J. Hawkins as Trustee of Virginia Realty Trust. A citation was issued on August 2, 2005, returnable September 5, 2005. Defendant filed an Answer on September 2, 2005, objecting to the validity of the Instrument of Taking for his property (Locus) [Note 1] and asking this court to dismiss the Complaint or alternatively declare that Defendant is ready and willing to redeem the tax taking upon such terms as may be fixed by this court. On September 6, 2006, Plaintiff filed a Motion for Entry of Finding and Award of Attorneys Fees and Court Costs, together with a Statement of Facts, supporting memorandum, and Affidavits of Donald N. Jenson (the Treasurer-Collector for the City of Woburn), and Attorney John D. Finnegan. On September 18, 2006, Defendant filed a memorandum in opposition to Plaintiffs motion, a Response to Plaintiffs Statement of Facts, and an Additional Statement of Facts. A hearing on Plaintiffs motions was held on September 19, 2006, and this court (Breuer, Deputy Recorder) issued an Order on April 10, 2007 (the Order) finding, in part, that: (1) Plaintiff possesses a valid tax lien on the registered portion of Locus only; (2) the scriveners errors made by Plaintiff were neither substantial nor misleading; (3) Defendant should have been aware that the taking recited on the Memoranda of Encumbrances for his Certificate of Title referred to Locus; and (4) the taking was timely and without procedural defect.
The Order also required Plaintiff to submit an affidavit from the Treasurer of the City of Woburn as to the amount owed for redemption of the registered portion of Locus. In accordance with the Order, on April 24, 2007, Plaintiff filed Affidavits of Donald N. Jenson (Treasurer-Collector of the City of Woburn) (Jenson) and Andrew Creen (Chief Appraiser in the Office of the City Assessors of the City of Woburn) (Creen) calculating the amount required for Defendant to redeem the registered portion of Locus. In response, Defendant filed an objection to the redemption amount specified in the affidavits on May 2, 2007, and a notice of appeal of the Order on May 8, 2007. Plaintiff filed a Response to Defendants objection on May 10, 2007, and a motion to strike the notice of appeal on May 11, 2007.
On May 21, 2007, this court (Sands, J.) held a status conference and set a date for the filing of a joint stipulation of agreed upon facts and motions for summary judgment. The Joint Stipulation of Facts, Agreed Upon List of Exhibits, and Defendants Motion for Summary Judgment with supporting memorandum were filed on July 6, 2007. Plaintiff filed an opposition to Defendants motion and cross-motion for summary judgment on August 3, 2007, together with supporting memorandum, Separate Statement of Legal Elements, and Appendix. On August 17, 2007, Defendant filed a Separate Statement of Legal Elements and Statement of Issues Presented. This court held a hearing for both motions on September 6, 2007, at which time the matter was taken under advisement.
This court finds the following facts are not in dispute:
1. J & B Builders, Inc. (J&B) purchased three contiguous parcels of registered land (Lots 1, 2, and 3) and an unregistered parcel of land between Lots 1 and 2, all located on Virginia Avenue in the City of Woburn (the J&B Lot), by Quitclaim Deed from James F. Tavanese dated April 29, 1988, recorded at Middlesex South Registry of Deeds (the Registry) at Book 19021, Page 452 ,and registered as Document No. 772811 on Transfer Certificate of Title No. 182618 at Book 1043, Page 68 (the J&B Certificate).
2. The three registered parcels are depicted as Lots numbered 1, 2, and 3 on Plan No. 6947B titled Subdivision Plan of Land in Woburn, dated March 18, 1988 (the Plan). Lot 1 contains 10,595 sq. ft., Lot 2 contains 12,068 sq. ft., and Lot 3 contains 12,015 sq. ft. The unregistered lot, labeled Domenico Calsolari on the Plan, contains approximately 2,450 sq. ft. of land. [Note 2]
3. The three registered parcels bear the following street numbers: Lot 1: 9 Virginia Avenue; Lot 2: 11-13 Virginia Avenue; and Lot 3: 15-17 Virginia Avenue.
4. On April 29, 1988, J&B granted the Woburn Five Cent Savings Bank (the Bank) a mortgage (the Mortgage) in the amount of $555,000.00 on the J&B Lot, which was recorded with the Registry at Book 19021, Page 455, and registered on the J&B Certificate as Document 772813.
5. In June of 1991, the Bank was declared insolvent.
6. On September 11, 1992, Plaintiff published Notice in the Woburn Daily Times Chronicle of its intent to take Locus and 15-17 Virginia Avenue for non-payment of taxes. The notices stated:
J & B Builders
About 12,068 square feet of land with building located at 15-17 Virginia Avenue, situated in said Woburn as recorded in South Middlesex Registry of Deeds, Book 1043 Page 68. Taxes for the year 1990 - $819.60.
J & B Builders
About 12,015 square feet of land with building located at 11-13 Virginia Avenue situated in said Woburn as recorded in South Middlesex Registry of Deeds, Book 1043 Page 68. Taxes for the year 1990 - $819.60.
7. On September 28, 1992, Plaintiff registered an Instrument of Taking (Taking 1) dated September 28, 1992, as to a portion of the J&B Lot. Taking 1 showed a total amount owed, as of that date, of $1157.04 (including interest and expenses). Taking 1 was not recorded on the recorded side of the Registry, but was noted on the Memoranda of Encumbrances to the J&B Certificate as Document 882090. Taking 1 described the land taken as:
J & B Builders
About 12,068 square feet of land with building located at 15-17 Virginia Avenue, situated in Woburn, as recorded in South Middlesex Registry of Deeds, Book 1043, Page 68. Taxes for the year 1990 - $819.60 [Note 3]
Taking 1 states that Plaintiffs demand for unpaid 1990 taxes was made on J&B on September 7, 1990. A copy of Plaintiffs demand is not available, having been lost or replaced.
8. On September 28, 1992, Plaintiff registered an Instrument of Taking (Taking 2) dated September 23, 1992, as to a portion of the J&B Lot. Taking 2 showed a total amount owed, as of that date, of $1157.04 (including interest and expenses). Taking 2 was noted on the Memoranda of Encumbrances to the J&B Certificate as Document No. 882091. [Note 4] Taking 2 described the land taken as:
J & B Builders
About 12,015 square feet of land with building located at 11-13 Virginia Avenue situated in Woburn, as recorded in South Middlesex Registry of Deeds, Book 1043, Page 68. Taxes for the year 1990 - $819.60 [Note 5]
Taking 2 states that Plaintiffs demand for unpaid 1990 taxes was made on J&B on September 7, 1990. A copy of Plaintiffs demand is not available, having been lost or replaced.
9. On August 14, 1995, Plaintiff issued Municipal Lien Certificate No. 904 (MLC No. 904) and an accompanying Account Payoff Report. MLC No. 904 and the Account Payoff Report detail the taxes due for property located at 15-17 Virginia Avenue with a land area of 12,068 sq. ft. The Account Payoff Report recites the Assessors Account No. as 03-69238-55334, and shows an outstanding balance of $12,902.69 as of August 14, 1995, due for the period 1989 to1995. MLC No. 904 and the Account Payoff Report were registered on December 1, 1995 on the J&B Certificate as Document No. 989059.
10. On October 17, 1995, the Federal Deposit Insurance Corporation (FDIC), as liquidating agent for the Bank, executed a certificate that it had made entry upon Locus and 15-17 Virginia Avenue for the purposes of foreclosing the Mortgage. Such Certificate was recorded with the Registry at Book 25764, Page 592 and registered as Document No. 989003 on the J&B Certificate.
11. Ronald, Michele, and Mark Auriemma (together with Christine, Stephen, and Bonnie Jean Auriemma, the Auriemma Family) purchased 15-17 Virginia Avenue (Lot 3) on October 27, 1995 by foreclosure deed (the Auriemma Deed).
12. The FDIC, as liquidating agent for the Bank, sold Locus to Defendant for $142,500.00 by foreclosure deed dated October 27, 1995 (Defendant Deed).
13. By check in the amount of $13,369.69 dated November 21, 1995 and received by Plaintiff on November 22, 1995, Stephen and Bonnie Jean Auriemma paid off real estate taxes for the amount shown on MLC No. 904, updated to November 22, 1995. The City of Woburn Massachusetts Schedule of Departmental Payments to Treasurer dated November 22, 1995 recites Payment for Tax Title Property located at 15 Virginia Ave. in the Name of J&B Builders (Now Owned by Stephen Auriemma. An account payoff report issued on November 22, 1995 for Account No. 03-69238-55334 also listed the amount owed as $13,369.69.
14. The Auriemma Deed was registered on December 1, 1995 on the J&B Certificate as Document No. 989060. The Registry also issued a new Certificate of Title No. 203820 for 15-17 Virginia Avenue (the First Auriemma Certificate). [Note 6] Neither Taking 1 nor Taking 2 was listed on the Memoranda of Encumbrances for the First Auriemma Certificate.
15. Defendant Deed is recorded with the Registry at Book 25889, Page 240 and registered as Document No. 989749 on the J&B Certificate on December 12, 1995. The Registry also issued a new Certificate of Title No. 203893 for the registered portion of Locus (the Defendant Certificate) dated December 12, 1995. Taking 1 was listed on the Defendant Certificate Memoranda of Encumbrances as Document No. 882090 and is noted:
|IN FAVOR OF:||City of Woburn|
|TERMS:||Taking of Lot 2 for non-payment of taxes for 1990.|
|DATE OF INSTR:||Sept. 28, 1992|
|DATE OF REG:||Sept. 28, 1992 TIME OF REG: 12:14 PM|
16. On May 11, 2004, Plaintiff issued a Real Estate Tax Statement and an Account Payoff Report to Defendant for Locus. The Parcel Identification number was listed as 08/08/01. The land area was recited as 12,015 sq. ft. The Assessors Account No. is listed as 03-69233-55326. The documents listed unpaid real estate taxes of $73,076.49 dating back to 1989.
17. On March 3, 2005, Plaintiff filed a Complaint to Foreclose Tax Lien with the Land Court for Locus, which lists Defendant as owner and describes the property as:
J & B Builders
About 12,068 square feet of land with building located at 15-17 Virginia Avenue, situated in said Woburn as recorded in Middlesex South District Registry of Deeds Book 1043, Page 68. Taxes for the year 1990: $819.60
18. On October 26, 2005, the Auriemma Family registered a master deed dated October 24, 2005 for Lot 3, converting the property to a condominium, which listed all six Auriemmas as owners. The Registry also issued a new Transfer Certificate of Title No. C683 (the Second Auriemma Certificate), recorded at Book 33, Page 13.
19. Plaintiff issued Municipal Lien Certificate No. 14164 (MLC No. 14164) dated October 3, 2005, and Municipal Lien Certificate No. 14378 (MLC No. 14378) dated November 9, 2005, for property located at 15 Virginia Avenue. These municipal lien certificates (the MLCs) were registered at the Registry on October 26, 2005, and November 22, 2005, respectively. The MLCs list 12,068 sq. ft. as the land area of the property and both receipts of registration note Certificate No. C683, located at Book 33, Page 13. The MLCs show no outstanding real estate taxes prior to 2006.
20. On November 14, 2005, Plaintiff prepared an Account Payoff Report and an Account Transaction History for Defendant relative to Locus, which lists the account number as 03-69233-55326 and shows an outstanding balance due of $89,693.63 dating back to 1989. The Account Transaction History also list a $5.00 charge as of August 18, 1995, and a $70.00 charge as of April 11, 2005, for the recording of certificates of redemption. Neither of these reports, however, show any payment of real estate taxes in this regard.
21. The City of Woburn Assessors Card currently references Locus as follows:
Location: 11 Virginia Ave.
Owner Name: Hawkins William JTR
Account No.: 036923855334 0
22. No real estate taxes have been paid by Defendant to Plaintiff on Locus since Defendants purchase in 1995.
23. For fiscal year 2007, Creen calculated the assessed value of Locus (based on 12,068 sq. ft.) to be $183,600. Creen then adjusted for the 1,225 sq. ft. unregistered portion of Locus (valued at $2,000), which resulted in an adjusted assessment of Locus of $181,600 (a 1.1% reduction in value).
24. As calculated by Jenson, as of August 23, 2006, the unpaid real estate taxes (including interest and costs) owed on the 10,843 sq. ft. registered portion of Locus totaled $97,464.98. This amount increases $24.37 per day for each day the taxes remain unpaid after April 23, 2007.
The issues before this court are twofold, whether Plaintiff possesses a valid tax title on Locus and, if so, what amount can be determined for redemption by Defendant. Defendant argues that Taking 1 is invalid and that the tax title account is void because of errors, and as a result a proper amount cannot be ascertained for redemption. Plaintiff argues that Taking 1 is valid because it does not contain substantial or misleading errors, and therefore, Plaintiff can determine the proper amount required for redemption. I shall address each of these issues in turn.
Validity of Taking 1.
G. L. c. 60, § 54 states the requirements of an instrument of taking. The statute states, in part:The instrument of taking . . . shall contain a statement of the cause of taking, a substantially accurate description of each parcel of land taken, the name of the person to whom the same was assessed, the amount of the tax thereon, and the incidental expenses and costs to the date of taking. Such an instrument of taking shall not be valid unless recorded within sixty days of the date of taking. If so recorded it shall be prima facie evidence of all facts essential to the validity of the title so taken . . . .
The description within an instrument of taking is adequate if it is reasonably accurate and fairly designates the property for the information of those interested. City of Lowell v. Boland, 327 Mass. 300 , 302 (1951). The purpose behind requiring a substantially accurate description is to provide notice to the owners and prospective buyers that the parcel is being taken. Town of Franklin v. Metcalfe, 307 Mass. 386 , 389-90 (1940). G. L. c. 60, § 37 states: [n]o tax title and no item included in a tax title account shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading . . . . Accordingly, an error will not invalidate the instrument or its associated tax taking account unless it is substantial or misleading.
G.L. c. 60 § 53 authorizes municipalities to commence tax takings. It states, in part:
If a tax on land is not paid within fourteen days after demand therefor . . . the collector may take such land for the town, first giving fourteen days notice of his intention to exercise such power of taking, which notice may be served in the manner required by law for the service of subpoenas on witnesses in civil cases or may be published . . . .
See also G.L. c. 60, § 37 (Said taxes, if unpaid for fourteen days after demand therefor, may, with said charges and fees, be levied by sale or taking of the real estate . . . .).
A. The Document.
Defendant claims that Taking 1 did not contain a substantially accurate description of Locus and therefore is invalid. Taking 1 described Locus as:
J & B Builders
About 12,068 square feet of land with building located at 15-17 Virginia Avenue, situated in Woburn, as recorded in South Middlesex Registry of Deeds, Book 1043, Page 68. Taxes for the year 1990 - $819.60
The only inaccuracy in the notice is the address, which is listed as 15-17 rather than 11-13 Virginia Avenue. The owner, square footage, street, book and page, and taxes are all reflected accurately. In the language of Boland, this instrument was reasonably accurate and fairly designate[d] the property in order for J&B to identify Locus. Additionally, J&B was on notice that Plaintiff also intended to take Lot 3 for taxes. Taking 2 (for Lot 3) described the property as:
J & B Builders
About 12,015 square feet of land with building located at 11-13 Virginia Avenue situated in Woburn, as recorded in South Middlesex Registry of Deeds, Book 1043, Page 68. Taxes for the year 1990 - $819.60
Again, while the address was misstated, the owner, square footage, street, and book and page in Taking 2 were accurate. [Note 7] Moreover, Taking 1 and Taking 2 were both registered on the J&B Certificate, so J & B was, or should have been, aware that both Locus and Lot 3 were subject to a tax taking. In spite of the inaccuracy of the street numbers, J&B was on notice that both Locus and Lot 3 were subject to a tax taking. As such, the purpose of the statute has been realized. Additionally, after Locus and Lot 3 were both sold in October of 1995, and the Auriemma Family (the purchaser of Lot 3), paid off the real estate taxes on Lot 3, the First Auriemma Certificate did not list any taking, but Defendant Certificate listed Taking 1. As a result, both purchasers were aware of the legal status of the respective takings. [Note 8] Accordingly, I find that the transposition of the street numbers in the two takings (relative to Locus and Lot 3) is not substantial and Plaintiff provided an adequate description for both Taking 1 and Taking 2.
B. The Proceedings.
Defendant asserts that Taking 1 was not duly exercised because Plaintiff cannot produce proof of the demand and Taking 1 was not recorded with respect to the 1,225 sq. ft. of unregistered land. Plaintiff does not deny that Taking 1 was not recorded with respect to the unregistered portion of Locus and therefore does not claim it has a lien on such unregistered land.
A copy of the demand made upon J&B for taxes unpaid for the year 1990 is not necessary for Plaintiff to possess a duly exercised taking. Taking 1 is dated September 28, 1992, and was registered on the registered side of the Registry on the same day. The instrument of taking must be recorded or registered within sixty days of the taking to be valid and once registered is prima facie evidence of all facts essential to the validity of the tax title. G. L. c. 60, § 54. The registration of Taking 1 therefore acts as prima facie evidence of all facts essential to the validity of the tax title, including the demand. Taking 1 recites the date Plaintiff purports to have made a demand as September 7, 1990. Defendant has not produced any evidence to show that demand was not made on this date. Defendants reliance upon the fact that Plaintiff cannot produce a copy of the demand made on J&B for unpaid taxes does not rebut Taking 1s presumption of validity.
In addition, this court is permitted to weigh the passage of time against the challenger when determining whether the document should be produced. See Krueger v. Devine, 18 Mass. App. Ct. 397 , 402 (1984) (noting that it is appropriate for courts to weigh the passage of time against challengers when assessing the validity of a tax title). Where the demand was made in 1990, the taking was registered in 1992, and the Complaint was filed thirteen years later, together with a lack of evidence to the contrary, it is equitable to offer that the demand was made as stated in Taking 1. Nine years passed between Defendants purchase of Locus in 1995 and the request for an Account Payoff Report in 2004, and during that time Defendant paid no real estate taxes. Notwithstanding the large amount owed on the Account Payoff Report in 2004, Defendant has acknowledged that, to date, it still has not made any payments of real estate taxes. Moreover, the Defendant Certificate has reflected Taking 1 since it was issued to Defendant in 1995.
For the foregoing reasons, I find that Taking 1 did not contain a substantial or misleading error in the description of Locus, and that Taking 1 was duly exercised by Plaintiff.
The issues arising from the redemption of Locus in this case are governed by G.L. c. 59, § 59, G.L. c. 60, §§ 37, 50, 54, and 62, and G.L. c. 185, §§ 46 and 54. G. L. c. 60, § 50 states in part, [t]he tax title account . . . shall be prima facie evidence of all facts essential to the determination of the amount necessary for redemption. G.L. c. 59, § 59 states in part, [a] person upon whom a tax has been assessed . . . if aggrieved by such tax, may . . . apply in writing to the assessors . . . for an abatement thereof . . . . G.L. c. 185, § 54 states in part, [t]he original certificate in the registration book . . . shall be received as evidence in all courts of the commonwealth, and shall be conclusive as to all matters contained therein . . . . In addition, every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate . . . . and . . . . liens . . . for unpaid taxes . . . . G.L. c. 185 § 46. G.L. c. 60, § 62 states, in part, that
[a]ny person having an interest in land taken or sold for nonpayment of taxes . . . may redeem the same by paying . . . the amount of the tax title account of the land being redeemed . . . .
A. Status of Redemption.
Defendant claims he is not liable for Taking 1 because Taking 1 has already been redeemed. The certificate of title is conclusive as to all matters contained therein, and a subsequent purchaser is encumbered by liens noted on the certificate, or liens on the property whether noted on the certificate or not. G. L. c. 185, § 54; G.L. c. 185 § 46. Taking 1 appeared on the J&B Certificate and was transferred to the Defendant Certificate, where it remains. Taking 1 is still in effect as to the registered portion of Locus because the Defendant Certificate still lists Taking 1 on its Memoranda of Encumbrances. Neither the First nor the Second Auriemma Certificate list Taking 2 because the real estate taxes for Lot 3 were paid prior to the issuance of these certificates. Defendant has not paid any taxes on Locus and does not deny that it has not redeemed Locus. As evidenced by the tax title account and the certificates of title, J&B (Defendants predecessor in title) did not redeem Locus.
Defendant suggests that the Auriemma Family has redeemed Locus and points to three MLCs issued by Plaintiff. Once a person with an interest in the land taken redeems it, the municipality must execute an instrument acknowledging the redemption. G.L. c. 60, § 62. However, the Auriemma Family does not, nor did it ever, have an interest in Locus and therefore could not redeem it. In addition, the MLCs applied to Lot 3. The same transposition of addresses in the two takings between Locus and Lot 3 has occurred throughout the history of this case, and, as discussed, supra, is not a substantial or misleading error. MLC No. 904 references Account No. 03-69238-55334, and the Auriemma Family paid the amount due on the 03-69238-55334 account by check dated November 21, 1995. Plaintiff maintains that the account number for Locus is 03-69233-55326. On December 1, 1995, the same day MLC No. 904 was registered, the Auriemma Family registered the First Auriemma Certificate. The First Auriemma Certificate does not reference a taking on its memoranda of encumbrances. From this, I find that MLC No. 904 applied to Lot 3, not Locus, and that MLC No. 904 did not indicate a redemption of Locus because it did not refer to the amounts owed for Locus and the Defendant Certificate still lists Taking 1.
MLC Nos. 14164 (filed on October 26, 2005) and 14378 (filed on November 22, 2005) both reference 15-17 Virginia Avenue, but do not reference an account number. The receipts of registration for both MLC No. 14164 and MLC No. 14378 refer to the Second Auriemma Certificate. These three MLCs (904, 14164, and 14378), that Defendant purports to be issued for Locus, all reference Lot 3 and were not registered on the Defendant Certificate, which is conclusive to all matters regarding it. [Note 9] I find that MLC No. 904, MLC No. 14164, and MLC No. 14378 apply to Lot 3 and do not apply to Locus.
B. Determination of Amount Required for Redemption.
Defendant claims that Plaintiff is unable to determine an accurate amount for redemption because of errors or irregularities in the tax title account. I agree, supra, with the Order, which concluded that Plaintiff made no substantial or misleading errors and found Taking 1 and its accompanying tax title account valid. Therefore, the tax title account is prima facie evidence for all facts essential to determining the amount of redemption. G. L. c. 60, § 50. The amount required for redemption of the registered portion of Locus can be ascertained by subtracting the amount due for the unregistered portion of Locus from the amount due for the entirety of Locus.
Pursuant to the Affidavits of Jenson and Creen, Plaintiff has reassessed the tax taking account to subtract the unregistered portion of land for which it does not have a proper tax title, and has valued the registered portion of Locus at $181,600. Defendants contention that Plaintiffs method of calculating the amount required for redemption is fundamentally flawed is not persuasive. Defendant offers no evidence that Plaintiffs assessment of Locus minus the unregistered portion is flawed; nor does it explain why Plaintiff should reduce the assessment by the percentage of the land area, apparently in contravention to municipal-standard assessment methods. [Note 10] Moreover, Plaintiff has consistently stated the amounts due on Locus in Taking 1, and in its Account Payoff Reports dated May 11, 2004, and November 14, 2005, and both were sent to Defendant. [Note 11]
It appears that Defendant is objecting to the amount assessed to it. Per G.L. c. 59, § 59, [a] person upon whom a tax has been assessed . . . if aggrieved by such tax, may . . . apply in writing to the assessors . . . for an abatement thereof . . . . The correct path for a party aggrieved by a mistake in the amount assessed to him is administrative relief. See New England Legal Found. v. City of Boston, 423 Mass. 602 , 607 (1996) (noting that a taxpayer must seek an abatement prior to access to the courts), see also DErrico v. Bd. of Assessors of Woburn, 384 Mass. 301 , 306 (1981) (statutory abatement procedures are exclusive, absent exceptional circumstances). As stated, supra, a tax title account is prima facie evidence of the amount required for redemption, and to rebut this amount, Defendant must first exhaust its administrative remedies. G.L. c. 185, § 54. Defendant needed to apply for an abatement if it felt its account contained errors or was misleading, and it failed to do so.
Plaintiff, therefore, possesses a valid account from which it may, and did, determine the amount of redemption for Locus. This court accepts Plaintiffs amount required for redemption of Locus as presented through the Affidavits of Jenson and Creen. As such, I find that as of August 23, 2006, the unpaid real estate taxes (including interest and costs) owed on the 10,843 sq. ft. registered portion of Locus totaled $97,464.98. This amount shall increase $24.37 per day for each day the taxes remain unpaid after April 23, 2007.
Finally, Plaintiff moves for legal fees associated with this matter. In support of this motion, Plaintiff provides a detailed account of legal services performed between February 15, 2005, and July 11, 2006, seeking to recover $6,275 in legal fees. Defendant argues that Plaintiffs legal costs result from Plaintiffs own misleading and confusing record keeping. This court
may, upon motion, order the payment of legal fees to a city or town, which amount shall be added to the tax title account of the land to which the right of redemption is being foreclosed; in no event shall the legal fees awarded exceed the actual costs incurred and the judge shall consider the taxpayers ability to pay said fees in any such fee award.
G. L c. 60, § 65. Such an order is permitted to the extent the costs and attorneys fees are reasonable. See G. L. c. 60, § 68. After reviewing Plaintiffs rundown of legal services performed in context of the facts and legal issues involved in this matter, I find $6,275 is a reasonable amount for legal fees and ORDER $6,275 to be added to the amount required for the redemption of Locus, discussed supra.
In sum, this court finds that both Taking 1 and the tax title account for Locus do not include substantial or misleading errors or irregularities, and therefore, are valid. Even if there were errors in the amount assessed to the tax title account, Defendant failed to apply for an abatement, which is the proper administrative remedy for an error in a tax title account. The lien has not been redeemed, disclaimed, nor discharged by a person with an interest in Locus and, therefore, Plaintiff is entitled to rely upon its tax title account in setting the amount required for redemption. Because of the foregoing, I find that Defendant may redeem Locus upon payment to Plaintiff, on or before thirty days from the date of this courts Judgment, of the sum of $97,464.98, plus a per diem of $24.37 since April 23, 2007, in addition to $6,275 of legal fees.
For the reasons discussed above, Defendants Motion for Summary Judgment is DENIED, and Plaintiffs Cross Motion for Summary Judgment is ALLOWED.
Judgment to enter accordingly.
Alexander H. Sands, III
Dated: January 8, 2009
[Note 1] Locus contains 12,068 sq. ft., has an address of 11-13 Virginia Avenue, Woburn and is comprised of a registered portion containing 10,843 sq. ft. and an unregistered portion containing 1,225 sq. ft.
[Note 2] The unregistered parcel was split in half and each half (containing 1,225 sq. ft.) became a part of its adjacent lot (Lots 1 and 2).
[Note 3] There is a handwritten reference to Lot 2 - 1043 p. 68 on Taking 1. The identity of the person who added the handwritten notation and the date of such note are not known.
[Note 4] The Summary Judgment record does not make reference to whether Taking 2 was recorded on the recorded side of the Registry.
[Note 5] There is a handwritten reference to Lot 3 - 1043 p 68 on Taking 2. The identity of the person who made the notation and the date of such note are not known.
[Note 6] The Summary Judgment record does not contain either the Auriemma Deed or the First Auriemma Certificate.
[Note 7] It appears that either the taxes in Taking 2 were overstated or, conversely, the taxes in Taking 1 were understated, for both Taking 1 and Taking 2 reference the same amount of taxes due for Lots 2 and 3 despite the fact that Lot 2 contains 53 sq. ft. more than Lot 3. The summary judgment record does not reflect this information. Whether either situation is applicable has no impact on this case.
[Note 8] Both account payoff reports, dated May 11, 2004 and November 14, 2005, which Plaintiff provided to Defendant, listed the Assessors Account No. as 03-69233-55326. When dealing with the tax title account, Plaintiff has consistently applied Account No. 03-69233-55326 to Locus and Account No. 03-69238-55334 to the Auriemma Lot, despite the fact that the Assessors Office references Locus as Account No. 03-69238-55334.
[Note 9] The fact that the account for Locus lists a charge for recording the certificate of redemption does not invalidate the account. In fact, this charge has never been paid, and taxes have been certified to the lien every year after this charge was added.
[Note 10] Defendant claims there is a discrepancy between the original assessment in the Affidavit of Jenson and the original assessment in the Account Transaction History. The Affidavit of Jenson and the Account Transaction History for Account No. 03-69233-55326, which Plaintiff says applies to Locus, both begin with an initial unpaid balance of $819.60. I do not find a discrepancy between the calculations of Jenson, and the Account Transaction History.
[Note 11] Defendant argues that the amounts stated are not always consistent, but fails to acknowledge the fact that interest and costs are continuing to accrue.