The plaintiffs, Joanne Pecci, Thomas McDonough, Barbara Hubert, and Paul McDonough, filed a petition for partition of the two-family dwelling and property located at 23-25 Fairview Road in Woburn. The plaintiffs and defendant Sheila Wiitala are siblings; defendant Wayne Wiitala is Sheilas husband. The evidence of the record title shows (and the parties did not dispute) that the plaintiffs and Ms. Wiitala each have a 10% interest in the property as tenants in common. The remaining 50% interest is held by Mr. and Mrs. Wiitala (as tenants by the entirety) as tenants in common with the plaintiffs.
The property cannot be advantageously divided among the five siblings and Mr. Wiitala and, accordingly, a partition by sale or by set off to one or more of the parties is appropriate. G.L. c. 241, §§ 14, 31. The defendants, who represented themselves pro se, also contend that they have paid all of the expenses of maintaining the property and have improved the property and seek reimbursement of such expenditures pursuant to G.L. c. 241, § 23. A trial was held, jury waived, to determine the fair market value of the property and the credits, if any, to be allocated to each party. Based upon the evidence admitted, my assessment of the credibility, weight, and inferences to be drawn from the evidence, the parties admissions in their oral arguments and post-trial briefs, and as more fully set forth below, I find and rule that the fair market value of the property as of August 15, 2007 was $395,000. I further find and rule that the defendants made improvements to the property that increased its value $50,000 (60% of which benefited their interest and 40% benefited the plaintiffs). Thus, the defendants are entitled to a credit in the amount of $20,000. Finally, I find and rule that each plaintiff must pay the defendants a total of $4,392.63 for their just and equitable share of insurance and real estate taxes (a total of $17,570.52). At the trial, it was the intent of all of the parties for the defendants to buy out the plaintiffs shares in the property. Accordingly, should the defendants still intend to do so, they must pay each plaintiff $30,107.37 (a total of $120,429.48 to the plaintiffs).
Facts and Analysis
In 1954, the siblings (again, the plaintiffs and defendant Sheila Wiitala) father, Francis P. McDonough, and their aunt, Anna M. McDonough, received title to the property as tenants in common. In 1962, Francis McDonough passed away intestate, leaving his 50% interest in the property to his wife, Blanche C. McDonough, and his five children (the siblings in this action). In 1981, Anna McDonough sold her 50% interest in the property to defendants Mr. and Mrs. Wiitala, as tenants by the entirety. Shortly thereafter, the defendants (and, during certain periods, their children) moved into one-half of the residence and have lived there ever since. Blanche McDonough lived in the other one-half of the residence until her death in 2005. Blanche McDonough passed away testate, leaving her interest in the property to be divided equally among the five siblings. Accordingly, the five siblings each now have a 10% interest in the property as tenants in common and Mr. and Mrs. Wiitala have a 50% interest in the property (as tenants by the entirety between themselves) as tenants in common with the five siblings.
The documentary evidence and testimony submitted at trial establishes the following. [Note 1] Both the plaintiffs and the defendants submitted evidence regarding the fair market value of the property. A letter from Pat Marsh, realtor, to Mr. and Mrs. Wiitala estimated the fair market value of the property to be between $389,900 and $409,900 as of November 27, 2006. Ex. 27. Mr. Marsh also recommended a listing price between $419,900 and $439,900. Id. However, no supporting data (comparable sales, etc.) was provided with this letter. Based upon a sales comparison approach, Thomas E. Brown appraised the property to be $395,000 as of August 15, 2007. Ex. 26. Both estimates of the value of the property are remarkably similar. Since Mr. Browns appraisal includes the supporting data and is consistent with Mr. Marshs range of value, I find and rule that as of August 15, 2007, the fair market value of the property was $395,000.
The defendants also contend that since they purchased their 50% interest in the property in 1981, they have paid for all of the propertys maintenance and improvement expenses. It is undisputed that the plaintiffs have not paid any amounts towards the maintenance and improvement of the property. A cotenant may be compensated for improvements on the land if justice and equity so require in the amount of the value of such buildings or other improvements, not exceeding, however, the actual amount by which the market value of the common land has been increased thereby . . . . G.L. c. 241, § 23. Such award may be offset by any benefit which the party claiming compensation has received from the common land. Id. In addition, a cotenant may be compensated for taxes, mortgage debt service, and insurance since [s]uch costs . . . are incurred to preserve the common estate and it would be a windfall to the noncontributing tenant if, upon partition, the paying tenant in common bears his proportional share of the costs. Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct. 64 , 69-70 (1983). A cotenant may not, however, receive compensation for general maintenance.
Based upon these guidelines, it is clear that the defendants cannot receive compensation for the following five categories of expenditures.
1. The water and sewer bills submitted as exhibit 9 do not fall within the category of costs to preserve the common estate and, further, the defendants (and, admittedly, Blanche McDonough) received the benefit of those services at the time they were paid. Id.
2. The defendants cannot be compensated for the bills, add[ing] up to over $140765.00, outlined in the letter from the defendants tax preparers. Ex. 8. That letter is not only hearsay, but there are no supporting documents to substantiate the amounts paid or whether such payments included some of the payments outlined below (e.g., real estate taxes). Id.
3. Exhibit 22 includes several checks, most of which are irrelevant to these proceedings. However, Check Nos. 290 and 291 are written from Blanche McDonough to Scalley Plumbing, totaling $4,387.96. Ex. 22. Mr. Wiitala testified (and the memo line on the checks corroborate) that these were for replacing the boiler on Blanche McDonoughs side of the house. Since neither the defendants nor the plaintiffs paid towards this expense, none of the parties will be credited for it.
4. Although payments towards mortgage debt service are compensable, I find that it is not just and equitable to award such compensation. Despite all parties being on the mortgage with Central Co-operative Bank (in the amount of $15,000) (ex. 21), the evidence shows that the proceeds of this mortgage went to purchasing the defendants 50% interest in the property from Anna McDonough. Accordingly, it would not be just and equitable for the plaintiffs to be responsible for any payments made on this mortgage. Further, there was no evidence submitted establishing exactly how much the defendants paid. The defendants also testified that the other mortgages in the record were used to pay for the maintenance and improvements of the property. As outlined below, the value of the improvements are already accounted for as part of the increased value added to the property. Accordingly, it would be a double counting if I were to credit the defendants for payments made on the remaining mortgages.
5. Finally, the defendants have submitted various invoices for work done (or being done) on the property. Ex. 19. One bill is for a new roof and siding for $9,800, to which the plaintiffs do not object. Testimony at trial indicated that Blanche McDonough paid for one-half of this bill. [Note 2] Accordingly, the defendants are not entitled to compensation for this bill. They paid 50% of the bill, approximately corresponding to their percent interest in the property at that time. It would be a windfall for them to receive additional compensation for this expenditure. Also part of Exhibit 19 are three invoices for work: (1) Hubon Corp. for 200A Service Upgrade for $5,250.00; (2) a letter from J.J Plumbing Jr. Company for plumbing work still in the process of being finished, in the amount of $7,250; and (3) a letter from Tyler Contracting for remodeling, including drywall, paint, trim, hardwood floors, and tiling, valuing $17,000.00. Ex. 19. It is likewise not fair and equitable for these bills to be included in the accounting. It is unclear whether these bills actually have been paid yet (two of the exhibits indicate that the work was still being done). Further, those invoices that are dated indicate that these services were being provided after the appraisals were conducted. Accordingly, the defendants (should they choose to buy out the plaintiffs) will benefit from the entirety of any increase in the value of the property from these services.
The defendants, however, submitted several other documents evidencing payment of expenses for which they can be properly compensated. The defendants submitted one bill for their homeowners insurance policy, which covers 23-25 Fairview Road and lists a premium in the amount of $392.00. Ex. 10. The cover letter indicates that [t]he overdue premium has been received and your policy has been reinstated. Id. Likewise, a Chase Manhattan Mortgage Corporation escrow account disclosure statement indicates that hazard insurance was paid in January 2000 in the amount of $463.00. Ex. 15. In addition, Mr. Wiitala testified that he paid for insurance for the property, which I credit and accept as true. Since insurance is required to preserve the common estate, the plaintiffs are responsible for their share of these expenses ($85.50 each).
The defendants also submitted several real estate tax bills issued by the City of Woburn for the years of 1984 to 2008 (the bills for 2006 were not provided). Exs. 12-14. Only some of the bills are stamped PAID by the City of Woburn cashier, but the defendants testified that they paid all of the taxes. I find such testimony is credible and I credit it as such. Further, the mortgage statements in exhibit 15 corroborate that taxes were paid. Ex. 15 (for 1995, 1996, 1998, 1999, 2000, and 2001). In addition, many of the tax notices sent by the city explicitly reflect payments received even for those bills that were not stamped paid (likely because, as the defendants testified, taxes were taken directly out of their mortgage payments). Finally, since the city did not foreclose on the property for unpaid taxes, I infer that all taxes were paid. These bills include the following: [Note 3]
|1984||Second Half (includes taxes for both halves and an assessment of $27.30).||$1,109.05|
|1985||Second Half (includes taxes for both halves and an assessment of $45.32) (includes two demand notices). [Note 4]||$1,118.85|
|1986||Second Half (includes taxes for both halves and an assessment of $16.72)||$1,088.61|
|1987||Notices for both halves (including total assessments of $73.92) (includes one demand notice). [Note 5]||$1,218.14|
|1988||First half (includes notation of taxes for both halves).||$1,159.08|
|1989||First half (includes notation of taxes for both halves and special assessments of $240.80).||$1,434.50|
|1990||Notices for both halves.||$1,270.38|
|1991||Notices for both halves (includes special assessments of $199.50).||$1,529.40|
|1992||Notices for both halves.||$1,426.32|
|1993||Notices for both halves.||$1,457.04|
|1994||Notices for all four quarters.||$1,513.20|
|1995||Notices for all four quarters (includes assessments of $355.40)||$1,945.04|
|1996||Two notices were provided (the first quarter and the third quarter, but these notices include the total taxes due for the entire year) (includes assessments of $329.70).||$1,845.50|
|1997||Three notices were provided (first, second, and fourth, but these three reflect total taxes due for the entire year).||$1,601.60|
|1998||Two notices were provided (the first and fourth quarters, but these notices reflect the taxes due for the entire year).||$1,668.81|
|1999||Notices for all four quarters (includes assessments of $388.50)||$2,078.74|
|2000||Notices for all four quarters||$1,706.30|
|2001||Notices for all four quarters||$1,932.30|
|2002||Notices for all four quarters||$2,100.76|
|2003||Notices for all four quarters||$2,201.92|
|2004||Notices for all four quarters||$2,672.88|
|2005||Notices for all four quarters||$3,383.70|
|2007||Fourth quarter notice provided (including a demand notice) (reflects taxes and fees due for the entire year) [Note 6]||$3,696.54|
|2008||Second quarter notice provided (reflects interest due) [Note 7]||$1,912.59|
|TOTAL TAXES, ASSESSMENTS, AND FEES =||$43,071.25|
Mr. Wiitala also testified that he did much of the work for the improvements to the half of the property in which the defendants reside, including renovating the attic and basement. He also testified that he fixed the foundation and the porch. I credit this testimony. This testimony was substantiated by Mr. Brown, who testified that the renovations to the attic and the foundation increased the value of the property. Mr. Brown also indicated that it would cost approximately $50,000 to accomplish the work on Blanche McDonoughs half of the home to bring it up to the quality of the defendants half. Again, I credit this testimony and infer from it that the work that the defendants did on their half increased the value of the property by $50,000. [Note 8] Accordingly, the defendants will be credited for this increase in the value.
The plaintiffs argue that if the court credits the defendants for these expenditures, it should also utilize a formula to take into account the fact that the defendants occupied roughly three-quarters of the property. This argument fails. As cotenants of the property, [e]ach joint tenant enjoys a right to use and possess the entire property subject to the similar right of each cotenant of the same property. That right attaches whether the ownership interests of joint tenants are treated as undefined or as presumptively equal. Moat v. Ducharme, 28 Mass. App. Ct. 749 , 753 (1990) (citation omitted). Unless ouster is proven (which was not in this case), the plaintiffs had an equal right to use and possess the property and the defendants do not owe what the plaintiffs seek, which is, effectively, rent for the defendants occupation of the property. Stylianopoulos, 17 Mass. App. Ct. at 66-67.
Based upon the foregoing, I find and rule that the fair market value of the property as of August 15, 2007 was $395,000. I further find and rule that the defendants made improvements to the property that increased its value $50,000 (60% of which benefited their interest and 40% benefited the plaintiffs). Thus, the defendants are entitled to a credit in the amount of $20,000. Finally, I find and rule that each plaintiff must pay the defendants a total of $4,392.63 for their just and equitable share of insurance and real estate taxes. At the trial, it was the intent of all of the parties for the defendants to buy out the plaintiffs shares in the property. Accordingly, should the defendants still intend to do so, they must pay each plaintiff $30,107.37 (a total of $120,429.48 to the plaintiffs). If they no longer intend to do so (or are unable to do so), the parties shall contact the court for further orders in order to sell the property to a third party. Judgment shall issue accordingly.
Keith C. Long, Justice
Dated: 1 July 2010
[Note 1] The plaintiffs object to the admission of certain exhibits that were not produced prior to the trial. That objection is overruled, in part. The late submission (largely of receipts and bills, similar in nature to documents already produced) did not prejudice the plaintiffs and they had time to review them prior to post-trial submissions and closing arguments. However, the objection to Chalk 1 is sustained. Chalk 1 is an invoice prepared by Mr. Wiitala for general maintenance (snow removal, leaf removal, lawn maintenance, etc.) in the amount of $30,900 ($1,500 per year). Such general maintenance expenses are not properly documented and are not expenses for which the defendants can receive compensation in this partition action. In addition, several of the real estate tax bills have handwritten notes on them. Such notes are not admitted into evidence since there was no testimony regarding who made the notes and the plaintiffs did not have the opportunity to cross-examine the defendants on them.
[Note 2] Mr. Wiitala indicated that he paid for the entire roof and they split the cost of the siding. Since the bill is not broken down into the expenses for each, I have split the entire bill in half.
[Note 3] For some years, only one bill is provided. However, those bills do include the total tax and assessments for the year, so the absence of the other bill(s) for the year is not material. Accordingly, so long as a bill was submitted that indicated the total taxes for the year, I have included such amounts in the bills. Finally, the total listed above does include any fees assessed by the city (usually under the category of Betterments and Liens or Assessments). It is just and equitable to include these charges to preserve the common estate since, if left unpaid, the city could possibly take the property. See Stylianopoulos, 17 Mass. App. Ct. at 69-70.
[Note 4] There are handwritten notes regarding a credit, balance, demand, and interest on this notice. However, there was no testimony as to who made those notes and whether they are accurate. In addition, as noted above, the plaintiffs did not have the opportunity to cross-examine the defendants regarding these notations. Accordingly, I have only included the typed taxes and assessments on the actual notice.
[Note 5] Again, there are handwritten notes on the demand notice, reflecting interest and a higher total amount due, which I have ignored for the reasons outline above. See n. 4, supra.
[Note 6] It is clear from the demand notice that payment was not made until October 11, 2007. Ex. 14. The demand notice included interest and fees for payment due July 2, 2007. Again, there are handwritten notes on the demand notice, presumably noting the increased interest for late payment, which I have not included for the reasons above. See n. 4, supra.
[Note 7] Again, there are handwritten notes, which I have disregarded. See n. 4, supra.
[Note 8] The fact that Mr. Wiitala did much of this work himself does not, as the plaintiffs argue, mean that the defendants cannot be compensated for it. See Sanborn v. Johns, 19 Mass. App. Ct. 721 , 724 (1985). Mr. Wiitalas work increased the value of the property and, therefore, it would be a windfall to the plaintiffs if such improvements could not be considered.