EDWARD PIRES v. IRENE E. PIRES and ERIC PIRES

Plaintiff Edward Pires (Edward) commenced Land Court case no 02 MISC 282083 on June 28, 2002, seeking a declaratory judgment, pursuant to G.L. c. 231A, § 1, concerning the rights of the parties in a certain parcel of registered land and buildings, known as and numbered 453, 471, and 479 American Legion Highway in Westport (Property), owned of record by Edward and Defendant Irene Pires (Irene) as tenants in common. Irene and Defendant Eric Pires (Eric) answered the Complaint on August 20, 2002.

Previously, on April 22, 2002 Edward commenced an action in the Bristol Division, Housing Court, Edward Pires v. Eric Pires, case no. 02-SP-00569, seeking possession and damages in the amount of $3,500.00 against Eric for non-payment of rent. On June 13, 2002, Edward filed a Petition in the Bristol Division, Probate and Family Court, Edward Pires v. Irene Pires and Eric Pires, case no. 02E 033 PP, seeking to partition the Property.

On May 12, 2004, Edward commenced a fourth action in the New Bedford District Court, Edward Pires v. Irene Pires and Eric Pires, case no. 02E 033 PP, seeking damages from Eric for use and occupation of the Property and for trespass to land, and seeking also damages for breach of contract from Irene.

By letter dated July 21, 2004, the parties, by their counsel, submitted a Request for Joint Interdepartmental Judicial Assignment, seeking to consolidate the related actions pending in the District Court, the Probate and Family Court, and the Housing Court with the Land Court action. The Chief Justice for Administration and Management issued an Order of Assignment on September 8, 2004, assigning the Chief Justice of the Land Court or her designee to sit as a justice of the Probate and Family Court Department for the purpose of hearing the Probate and Family Court case, but made no order regarding the cases pending in the District and Housing courts.

On March 2, 2005, the court took a view of the Property in the presence of counsel. Trial was held the same day in Dartmouth at Southern New England law School. Stenographer Barbara Milne was sworn to take the testimony. Testifying were Plaintiff Edward Pires and Defendants Irene Pires and Eric Pires. Exhibits 1; 1A-1O; and 2-34 were admitted into evidence and Chalk A was marked for identification.

On May 2, 2005, the parties filed a Joint Motion to Consolidate the District Court and Housing Court cases. The Chief Justice for Administration and Management issued a second Order of Assignment on May 10, 2005, assigning the Land Court judge to sit as a justice of the District Court Department for the purpose of hearing the District Court case and as a justice of the Housing Court Department for the purpose of hearing the Housing Court case.

Also on May 2, 2005, the parties filed a Joint Motion to Order Perimeter Plan. The Court allowed the motion on May 11, 2005. [Note 1]

On December 3, 2007, the parties submitted, by agreement, the Affidavit of the Westport Tax Collector Carol A. Borden as a supplemental exhibit.

On May 7, 2009, Plaintiff filed a Post-Trial Memorandum. Defendants filed their Post-Trial Memorandum on June 24, 2009. These are the matters presently before the court.

After reviewing the record before the court, I find the following facts:

1. The property at issue in this case is land and buildings, known as and numbered 453, 471, and 479 American Legion Highway in Westport. The Property is registered land depicted on Land Court Plan 25386-A. A Decision Sketch is attached.

2. In or about the Spring of 1987, Francisco Pires (Francisco) and his brother Joseph Pires (Joseph) each held an undivided 8/18ths interest in the Property and their sister Mary Pires (Mary) held an undivided 2/18ths interest in the Property, all as tenants in common.

3. At some point, Mary sold her interest to Francisco and Joseph as tenants in common in exchange for a purchase-money mortgage.

4. At some point, Francisco’s son Edward Pires began living in the house located on 453 American Legion Highway (453 House).

5. At some point, Joseph threatened to evict Edward. As a result, on March 30, 1982, Francisco and Edward executed a trust agreement, in which Francisco conveyed a 4/18ths interest in the Property to Edward to be held in trust for the benefit of Francisco, making Edward a tenant in common of the Property.

6. In 1987, Francisco and Joseph were experiencing financial difficulties balancing the mortgage and $20,000.00 owned to the Town of Westport in back real estate taxes on the Property, and a dispute arose.

7. Joseph brought an action in the New Bedford District Court to partition the Property. As a result the Property was almost partitioned by sale.

8. On July 2, 1987, Francisco, his wife Irene Pires, Edward, and his wife Susan Pires executed an agreement (1987 Agreement), which contemplated a buy out of Joseph’s interest in the Property.

9. The 1987 Agreement provides, in relevant part, as follows:

Now: therefore for mutual consideration, it is agreed by and between the parties as follows:

3. At the time of the buyout of Joseph Pires’ share, no engineering for subdivision will be required. However, after the transfer from Joseph, it is intended that the property will be divided as follows.

a. Francisco Pires will be sole owner of the land which includes his present residence and the large garage next to it.

b. Edward Pires will be sole owner of the other two residences including the one he presently occupies and the one presently occupied by Joseph Pires and the small garage next to Joseph Pires’ present residence.

c. The remainder of the land will be divided by Francisco Pires and Edward Pires as they will mutually agree but with each owning his own share separately and exclusively. It is the intent of the parties that Francisco Pries will be the sole exclusive owner of approximately one half and the Edward Pires will be the exclusive owner of the other one half overall.

(Emphasis added).

10. On September 8, 1987, Francisco and Edward granted a mortgage covering the Property to Fall River Five Cents Savings Bank for the amount of $220,000.00 in order to buy out Joseph’s interest in the Property.

11. The parties executed a deed on September 8, 1987, in which Joseph conveyed his interest in the Property to Edward. The deed was accepted for registration at the Bristol County Registry of Deeds as document number 50526. Certificate of Title number 15374 was issued certifying that Francisco holds an undivided 5/18ths interest and Edward holds an undivided 13/18ths interest in the Property.

12. At the closing, Edward paid $226,714.86.

13. Francisco stated at the closing that as a result of what Edward had done for them, he did not want the 4/18ths interest back.

14. Subsequently, Edward lived in the 453 House and Francisco and Irene lived in the house on 479 American Legion Highway (479 House).

15. Since that time, Edward has paid the real estate taxes on the 453 and 471 houses and Francisco and Irene paid the real estate taxes on the 479 House.

16. Sometime in 1987, Eric began renting the house on 471 American Legion Highway (471 House) from Edward at $500 per month.

17. On October 6, 1996, Francisco died, leaving his interest in the Property to Irene.

18. In March 2001, Edward informed Eric that he had to move out of the 471 House. Between March and August 2001, Edward continued to discuss the issue with Eric. Eric stated that he would move out. However, eventually Eric decided to remain on the premises.

19. Beginning in September 2001, Eric withheld the monthly rent from Edward but continued to occupy the 471 House.

20. In November 2001, Edward served Eric with a Notice to Quit for non-payment of rent, setting a move out date of December 2, 2001.

21. By letter dated January 22, 2002, Eric’s attorney, Matthew Thomas, informed Edward that Eric would vacate the premises by March 31, 2002. As a result of this letter, Edward delayed eviction proceedings. However, at the end of March 2002, Eric had not moved out.

22. On April 15, 2002, Edward served Eric with Summary Process Summons and Complaint, seeking possession and past rent due for non-payment of rent.

23. On April 18, 2002, Eric obtained permission from Irene to use and occupy the 479 House.

24. On April 30, 2002, Irene executed a deed granting a 1/18th interest in the Property to Eric, ostensibly making him a tenant in common.

25. On May 13, 2002, upon petition of Irene, the Bristol Registry District of the Land Court issued a new certificate of title reflecting that Irene now holds Francisco’s undivided 5/18ths interest.

26. The court takes judicial notice of the fact that on July 11, 2002, a notation was made on the certificate of title number 19784, held by Edward and Irene, indicating that Eric is now the holder of a 1/18th interest in the Property. No new certificate has been issued, however.

***

The 1987 Agreement

In the present case, Plaintiff argues that the 1987 Agreement is a valid contract. Plaintiff suggests that this agreement operated to divide the houses from the remainder of the Property and, in effect, convey the 453 and 471 houses to Edward as sole owner and the 479 House to Francisco as sole owner. It is well-settled law in the Commonwealth, however, that the rights of the parties in a contract to convey an interest in real property are contract rights and not rights of interest in the real property itself. Laurin v. DeCarolis Constr. Co., 372 Mass. 688 , 691 (1977). Moreover, G.L. c. 185, § 57 provides that in the case of registered land, “[t]he act of registration only shall be the operative act to convey or affect the land …,” and “no deed, mortgage or other voluntary instrument … shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties ….” Only the act of registration of some interest-transferring instrument can effect a conveyance of registered land. While it is clear from the 1987 Agreement that the parties contemplated dividing the Property and conveying portions of it to one another as sole owners, this intent was never accomplished; no deed reflecting such division and conveyances was ever registered. Therefore, the 1987 Agreement does not operate to affect title to the Property, directly.

Edward argues also that the 1987 Agreement obligates Irene to convey the 453 and 471 houses to him as sole owner in exchange for the 479 House and to divide the remaining land approximately equally between the two. The 1987 Agreement, while general, amounts to a promise between Edward and Francisco/Irene to divide the Property and convey portions of it to one another as sole owners. There is nothing in the record to suggest that this is anything other than a valid and binding contract between the parties. While it cannot operate directly to affect title to the Property, it can and does operate to obligate the parties to divide the Property and convey portions of it to one another as sole owners. Accordingly, I rule that the 1987 Agreement is a valid contract between Edward and Irene, which obligates Irene to convey her interest in the 453 and 471 houses to Edward in exchange for his interest in the 479 House, and to come to an agreement with him regarding an approximately equal division of the remaining land. [Note 2]

The April 30, 2002 Deed

Plaintiff argues that Irene’s conveyance to Eric of a 1/18th interest in the Property on April 30, 2002, is void by reason of undue influence. Undue influence is the unfair persuasion by one party of another, who, by virtue of the confidential relationship between them, is justified in assuming that the persuading party will not act in a manner inconsistent with his or her welfare. Bruno v. Bruno, 384 Mass. 31 , 34 (1981); Restatement (Second) of Contracts § 177 (1981). Where a party is unduly influenced to execute a contract, the contract is voidable by the influenced party. See H.J. ALperin & R.F. Chase, Consumer Law (2d ed. 2001) (citing Restatement (Second) of Contracts § 177(2) (1981)). However, the mere existence of a confidential relationship alone is not sufficient to render a contract voidable. Eddy v. Eddy, 281 Mass. 156 , 161 (1932) (citing Woodbury v. Woodbury, 141 Mass. 329 (1886)); see also Tetrault v. Mahoney, Hawkes, & Goldings, 425 Mass. 456 , 465 (1997). Moreover, “[o]rdinarily family relations do not suffice to create a fiduciary relationship that heightens scrutiny for fraud or undue influence.” Cleary v. Cleary, 427 Mass. 286 , 292-93 (1998).

Generally, “a party challenging a will or other document on the ground that it was procured through fraud or undue influence bears the burden of proving the allegation by a preponderance of the evidence.” Id. at 290 (and cases cited); Mirick v. Phelps, 297 Mass. 250 , 252 (1937); see McOuatt v. McOuatt, 320 Mass. 410 , 411 (1946). Undue influence need not be proved by direct evidence but may be inferred from attendant circumstances, though there must be more than mere suspicion. Raposa v. Oliveira, 247 Mass. 188 , 190 (1924); Neill v. Brackett, 234 Mass. 367 , 370 (1920) (“Mere suspicion, surmise or conjecture are not enough to warrant a finding of undue influence.”); Hoffman v. Hoffman, 192 Mass. 416 , 419 (1906).

In the present case, there is no direct evidence that Irene was coerced or otherwise unfairly persuaded to convey an interest in the Property to Eric. Plaintiff simply has not met his burden in this regard. Moreover, even if the April 30, 2002 deed were a product of undue influence, it would be voidable only by Irene, the alleged victim of the influence, and not by Edward, an outside party to the contract. Accordingly, I rule that the April 30, 2002 deed is not a product of undue influence.

Breach of Contract

Plaintiff argues that Irene breached the 1987 Agreement when she conveyed the 1/18th interest in the Property to Eric. The 1987 Agreement binds Irene to convey her interest in the 453 and 471 houses and half of the back property to Edward as sole owner. By conveying some of her interest in the Property to a third party, she is unable to perform under the contract. Even if Irene conveys all of her interest in these house and half of the back property, Edward will remain a tenant in common with Eric. Accordingly, I rule that Irene is in breach of the 1987 Agreement. Edward requests damages resulting from this breach of contract from Irene and Eric, jointly and severally. While Edward is entitled to the property promised him in the 1987 Agreement, he has not demonstrated how Eric should be liable for Irene’s breach of a contract, to which Eric was not a party. While I am skeptical that Eric was unaware of the 1987 Agreement, Plaintiff has not raised the issue of Eric’s good-faith in purchasing his interest. Nonetheless, through the partition of the Property sought by Edward as a tenant in common, the 1987 Agreement may be fulfilled and Edward may be made whole.

Partition in Kind

The parties agree that the property should be partitioned in kind, and do not appear to contest that Edward should come to own the 453 and 471 houses and that Irene should come to own the 479 House. The dispute is over the size of the house lots that should be drawn, which will, of course, affect the size of the back lot. Plaintiff requests that the partition form the three house lots containing at last one and one-half acres of land, in order to conform to the Zoning By-Laws of the Town of Westport and Title V, regarding septic systems. Defendants, however, suggest that because the buildings on the Property existed on the lot before the Subdivision Control Law went into effect in Westport, the house lots could be smaller than the current lot size requirements. Defendants request that this be done in order to maximize the back land, which is to be divided evenly between Edward and Irene.

I am not assured that house lots smaller than the current lot size requirements would best serve the principles of zoning or even be allowable. Certainly, the more the lots conform to current regulations and statutes, the fewer complications the landowners will face in the future. Accordingly, I rule that the Property should be partitioned so as to create house lots containing one and one-half acres of land and the remaining land split equally between Edward and Irene. I rule further that Irene must repurchase Eric’s 1/18th interest in the Property.

Unpaid Rent, Use, and Occupancy of the 471 House

As previously discussed, Edward is the owner, as a tenant in common, of the 471 House. Sometime in 1987, Eric began renting the 471 House from Edward at $500 per month. Beginning in September 2001, Eric withheld the monthly rent from Edward but continued to occupy the 471 House. His failure to pay rent constitutes a violation of the tenancy, which entitled Edward to terminate Eric’s tenancy. On November 19, 2001, Edward served Eric with a legally sufficient notice of termination effective December 2, 2001. Eric did not voluntarily vacate the premises.

However, on April 30, 2002, Irene executed a deed granting a 1/18th interest in the Property to Eric. On July 11, 2002, a notation was made on the certificate of title number 19784, held by Edward and Irene, indicating that Eric is now the holder of a 1/18th interest in the Property. Therefore, on July 11, 2002, Eric became a tenant in common of the Property and, thus, had a right to possesses the 471 House. Accordingly, I rule that Eric is liable for rent from September 2001 to July 11, 2002. Therefore, he owes a total of $5,161.29 in unpaid rent to Edward. However, Eric is not subject to eviction of the property, because he is now a tenant in common with Edward and Irene.

Trespass

Plaintiff brings also a claim of trespass to land against Eric. However, trespass does not lie against a holdover tenant who rightfully entered the premises at the commencement of the tenancy. Attorney Gen. v. Dime Sav. Bank of New York, FSB, 413 Mass. 284 , 288 (1992). General Laws chapter 184, § 18 provides that “[n]o person shall attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to chapter two hundred and thirty-nine or such other proceedings authorized by law.” The procedure employed by Plaintiff in this case does not comply with G.L. c. 184, § 18. See Attorney Gen., 413 Mass. at 285. A landowner must make use of the Summary Process Statute in order to regain possession of the premises. Moreover, a landlord whose property is occupied by a tenant does not have sufficient possession of the property to maintain an action in trespass. Id. 288-89; Clark v. Mead Realtygroup, Inc., 67 Mass. App. Ct. 491 , 499-500 (2006); see Bascom v. Dempsey, 143 Mass. 409 , 410 (1887). Accordingly, I rule that Plaintiff’s claim of trespass to land against Eric must be dismissed.

Conclusion

For the foregoing reasons, this court concludes that the Property shall be partitioned in kind so as to create house lots containing one and one-half acres of land, with the house lots containing the 453 and 471 houses going to Edward, the house lot containing the 479 House going to Irene, and the remaining land split equally between Edward and Irene. While the 1987 Agreement does not affect the registered title to the Property, it is a valid contract between Edward and Irene, which obligates Irene to convey her interest in the 453 and 471 houses to Edward in exchange for his interest in the 479 House and to come to an agreement with him regarding an approximately equal division of the remaining land. The court further concludes that the April 30, 2002 deed is not a product of undue influence, but is a breach of the 1987 Agreement by Irene. Therefore, Irene shall repurchase Eric’s 1/18th interest in the Property in order to fulfill her obligation to Edward under that agreement. Lastly, the court concludes that Eric owes a total of $5,161.29 in unpaid rent. Accordingly, it is hereby ORDERED that the parties shall submit jointly a plan dividing the property as set forth in this Decision on or before November 23, 2009. If they are unable to reach agreement, the court will appoint a partition commissioner to effectuate the partition.

So Ordered.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: September 25, 2009