MISC 50333

September 17, 1979

Middlesex, ss.

Randall, C. J.


On July 17, 1975 the petitioner, City of Lowell (City) filed a petition under G. L. c. 60, §65 to foreclose all rights of redemption under a tax title on property in Lowell described as "6,647 square feet of land, more or less, situate 80 Lawrence Street, as shown on plan L-12 in office of City Engineer." (locus). The Union National Bank did not file an appearance. The respondents filed an appearance and on June 30, 1977 the Court made a finding that the respondents Elias be allowed to redeem the locus upon payment to the petitioner, on or before September 15, 1977, of $3,860.75 with interest allowed by statute from the date of the finding to the date of payment and costs of $81.50. The respondents filed a motion to vacate this finding on August 10, 1977 which was subsequently continued and denied March 29, 1978. A second motion to vacate the finding and file a late answer was filed and allowed on May 8, 1978 after it was assented to by the city. Before the Court now is the petition to foreclose the tax lien. By way of answer the trustees allege that the tax lien is invalid due to improper procedures followed therein; payment of real estate taxes and the improper assessment of demolition costs.

Complicating the pleadings was an action brought by the respondents in Middlesex Superior Court charging the Framingham Building and Wrecking Co. and the City of Lowell with improperly demolishing the building on the locus (Superior Court Case No. 326445) in which the defendant Building and Wrecking Co. claimed a jury trial. This case is still pending as the Land Court could not consolidate it for trial herein due to the jury claim.

From all of the evidence the Court finds the following facts:

1. Salem Elias acquired the locus on August 28, 1942 by a deed recorded in Book 982, Page 483 (Exhibit No. 11) and owned it until his conveyance to the Trustees of the Elias Brothers Realty Trust by a deed dated January 8, 1971, recorded in Book [Note 1] 1966, Page 316 (Exhibit 16).

2. A three story wooden frame structure containing four apartments stood upon the locus from at least 1966 until some- time between October 1, 1971 and November 15, 1971.

3. Sometime in 1968 a fire damaged the wooden frame structure on the locus and thereafter it fell into extreme disrepair.

4. On March 19, 1970 the City's building inspector, acting on a complaint, inspected the building on the locus and sent a notice (Exhibit No. 3) to Salem Elias, 24 Park Street, Lowell, the then owner of the property, pursuant to G. L. c. 143, §6. [Note 2]

The notice consisted of a mimeographed form letter under the heading "Notice by Inspector of Buildings Under Chapter 143, Section 6 of the General Laws of the Commonwealth." It informed Salem Elias that his property at 80-82 Lawrence Street, Lowell had been inspected and found to be "Dangerous to life and limb, unused, uninhabited, abandoned, and open to weather." Salem Elias was ordered "in accordance with §6, Chapter 143 of the General Laws; 1) To remove the same or make it safe; 2) to make it secure by taking down left front chimney." He was further informed that under Section 7 [Note 3] of Chapter 143 he was permitted until noon of the day following service of this notice in which to begin to remove or make it safe or secure the structure and that if he failed to comply with §7 it would be necessary for the building inspector to proceed in accordance with G. L. c. 143, §§8 and 9. [Note 4]

5. Salem Elias did not begin to remove or make safe or secure the building (Section 7) by noon the next day nor did he exercise his right of appeal from these findings as provided for in G. L. c. 143, §10. [Note 5]

6. On May 12, 1970 the Building Inspector caused a survey of locus to be made by a board consisting of the city engineer, the head of the fire department and a disinterested person pursuant to G. L. c. 143, §8. A report of this survey entitled "Report of the Survey under Chapter 143, Section 8 of the General Laws of the Commonwealth of Massachusetts of the property located at 80-82 Lawrence Street, Lowell" was sent by certified mail to Salem Elias at 24 Park Street, Lowell. The report stated that the three member survey team found "[the] structure dangerous, should be removed, unused, uninhabited, abandoned, open to weather" and therefore found to be "(1) dangerous to life and limb; (2) unused, uninhabited, abandoned, open to weather." (Exhibit No. 13.).

7. On October 20, 1970, five months later, after a further inspection by the city's building inspector revealed that the necessary repairs had not been made, a second §6 notice was prepared (Exhibit No. 1) making the same findings as the earlier report (Paragraph 4).

8. On October 22, 1970 a new three member survey team surveyed the structure on the locus as authorized by §8 and a new report was prepared in the same form as the May 12, 1970 report (Paragraph 6). This new report delineated the same findings outlined in the earlier report but added the words "Repair or Remove immediately. Secure immediately." (Exhibit No. 1A).

9. On October 30, 1970 both the second Section 6 and section 8 reports were received in the same envelope by Salem Elias, 24 Park Street, Lowell, as shown on the registered mail return receipt (See Exhibit No, 1A).

10. Salem Elias did not appeal these findings and no further notices were sent or received by him.

11. On January 11, 1971 Salem Elias conveyed the locus to respondents (Exhibit No. 10) by a deed dated January 8, 1971 and recorded on July 9, 1971 in Book 1966, Page 316. Respondents did not reside with their father but had been involved in the maintenance and repair of the locus acting only on their father's orders prior to taking title. Salem Elias never showed the respondents any notices and reports received by him and no notices were ever sent to respondents themselves.

12. On October 1, 1971, one full year after the building inspector's last communication to Salem Elias, the city granted a permit to the Framingham Building and Wrecking Co, to raze the structure on the locus (See Exhibit No. 2), and it was demolished shortly after the permit was granted.

13. On November 16, 1971 and again on November 18, 1971, the Building Inspector inspected the locus and on the latter date found the demolition completed and the lot cleared of debris but never rendered an account of the demolition costs to Salem Elias or to the respondents.

14. On November 17, 1971, a lien in the amount of $2,280.00 for the cost of the demolition was recorded in Book 1988, Page 53. This was not in evidence but was attached to respondents' motion to stay proceedings. Not having been paid, the lien was committed by the assessors as part of the 1972 tax bill to the city's collector of taxes (See Exhibit No. 6).

15. The "Real Estate Valuation List" (Commitment Sheet - Exhibit No. 6) shows that the real estate tax for 1972 was $408.10 and that it was paid on 1-12-73. The demolition cost was listed as $2370.00 and that, with assorted other charges and fees and interest, was not paid.

16. On January 5, 1973 according to the instrument of taking (Exhibit No. 7) a demand for payment was made on the respondents as trustees and no payment was made within fourteen days. As set forth in paragraph 15 above the sum of $408.10 was paid on January 12, 1973 but nothing was paid for demolition costs or other charges and interest.

17. On August 21, 1973, the "Tax Title Account" (Exhibit No. 8) recited that the premises were advertised for taking in the Lowell Sun. Close scrutiny of the copy of the advertisement shows that it was for "Demolition of 1972-2370." The Tax Title Account shows further that the taking was September 11, 1973 and the instrument of taking was recorded on September 21, 1973. The "Tax Title Account" further shows that real estate taxes for 1974 and 1975 were thereafter paid and that taxes for the years 1976, 1977 and 1978 were not paid.

18. The demolition costs of $2370. plus $1,308.41 for taxes for the years 1976, 1977 and 1978, plus any interest and late charges have not been paid to the city.

The burden is upon the city to prove that the property was properly taken for non-payment of taxes. Under G. L. c. 60, §54 the instrument of taking if recorded, as is here the case, shall be "prima facie evidence of all facts essential to the validity of the title so taken." In this case the respondents have brought forth evidence to refute the validity of the taking.

The instrument of taking (Exhibit 7) in the present case may well be in error both on its face and on what it is based. First, it recites that a demand for payment of taxes for the year 1972 was made on January 5, 1973 and that there was no payment made within 14 days. Actually, the real estate tax of $408.10 was paid (See paragraph 15) but it did not include any amount for interest, penalties or for demolition costs.

Secondly, under G. L. c. 160, §43 the term "taxes" used in the taking instrument would include such demolition costs. But the total amount set forth in the instrument of taking - $3094.51 - can be substantiated in no way. Presumedly, this amount was reached by taking the figure $2870 - which included demolition costs of $2370., interest, real estate tax of $408.10 and penalties, and then adding interest and penalties all over again for a second time. At any rate the total figure was excessive and incorrect.

Thirdly, the assessment of demolition costs presents a series of problems. It would appear that the first notice under G. L. c. 143, §6 on March 19, 1970 (Paragraph 5) was in order. Nothing happened as a result of this notice for two months until a notice (paragraph 7) under G. L. c. 143, §8 was sent to Salem Elias, quite properly on May 12, 1970. Again, nothing happened for 5 months until October 22, 1970 when a second Section 6 and a second Section 8 notice were sent to Salem Elias together in the same envelope (See Paragraphs 8 and 10). Sending the notices in this way hardly gave heed to any possible rights of appeal Salem Elias might have had. After sending these notices on October 20, 1970 the city did nothing further about the building for over a year and by the time the city did act Salem Elias no longer owned the property for on January 11, 1971 he transferred the property to his sons as Trustees of the Elias Trust. (Paragraph 11), There was testimony that the sons had no knowledge of the Section 6 or 8 notices (Paragraph 11). There was testimony that during this year's time from October 22, 1970 until November 1971 the Elias sons had deposited some construction materials in the building and had attempted to make some repairs, no matter how small. On October 1, 1971 the Framingham Building and Wrecking Co. got a permit to raze the building. Notice of this was not given to the Elias Brothers. There was no evidence that there was even a telephone call to advise them or Salem Elias of the impending demolition. There was no evidence as to exactly when the building was demolished except that by November 18, 1971 it was inspected by the city and was certified as razed.

The Court believes that notices under Sections 6 and 8 of c. 145 should be acted upon within a reasonable time. In this case the time was unreasonable. Salem Elias may have been lulled into inaction by the city's lackadaisical inefficient handling of the matter. The Elias brothers knew nothing of the impending demolition and indeed deserved notice of it under the circumstances.

The errors did not stop with the demolition. Inconceivably, neither Salem Elias nor the brothers were ever sent a bill for the demolition. G. L. c. 139, §3A provides that "a clause for the expense of such demolition...shall constitute a debt due the city...upon the completion of demolition ... and the rendering of on account therefor to the owner...". No account was ever rendered to the owner - Salem Elias or his sons as Trustees. For a lien to be effective according to said section 3A it must be recorded within 90 days of the debt becoming due. This debt never became due because an account was never rendered to the owner. Nor was the purported lien in proper order as it was signed by the Treasurer and not by the mayor as called for under section 3A. The first the Elias brothers knew of this bill was presumedly when the demand set forth in the instrument of taking was made on them on January 5, 1975 and as noted earlier this demand recited an incorrect amount.

The building located on the locus was unquestionably grossly dilapidated, being both an eyesore and a serious hazard. The structure and its contents were worthless and proper targets for demolition but this does not mean that the demolition should not have been properly carried out.

The series of errors committed by the city in the process seriously flawed the taking. Indeed the inclusion in the 1973 taking instrument of the demolition costs, which the Court finds were improperly assessed, made the statement of the taxes due excessive and alone may have invalidated the taking. See Quincy v. Wilson, 305 Mass. 229 , 232 (1940).

The Court rules that the taking was invalid and therefore the petition to foreclose the right of redemption is dismissed.

Decree accordingly.


[Note 1] All deed references are to the Middlesex North Registry of Deeds.

[Note 2] G. L. c. 143, §6. §6. Inspector of buildings; duties. In a city or town wherein there is in force a building code, so called, established under authority of section three or corresponding provisions of earlier law or established by or under authority of any other provision of law the superintendent of public buildings or such other person as the mayor of such city or the selectmen of such town may designate shall be inspector of buildings, and, immediately upon being informed by report or otherwise that a building or other structure or anything attached to or connected therewith in that city or town is dangerous to life or limb or that any building in that city or town is unused, uninhabited or abandoned, and open to the weather, shall inspect the same; and he shall forthwith in writing notify the owner, lessee, or mortgagee in possession to remove it or make it safe if it appears to him to be dangerous, or to make it secure if it is unused, uninhabited or abandoned, and open to the weather. If it appears that such structure would be specially unsafe in case of fire, it shall be deemed dangerous within the meaning hereof, and the inspector of buildings may affix in a conspicuous place upon its exterior walls a notice of its dangerous condition, which shall not be removed or defaced without authority from him. As amended St. 1946, c. 363, §4; St. 1949, c. 541, §l; St. 1957, c. 214, §l. (Emphasis added.)

[Note 3] G.L. c. 143, §7. §7. Removal or making structure safe; putting up fence. Any person so notified shall be allowed until twelve o'clock noon of the day following the service of the notice in which to begin to remove such structure or make it safe, or to make it secure, and he shall employ sufficient labor speedily to make it safe or remove it or to make it secure; but if the public safety so requires and if the aldermen or selectmen so order, the inspector of buildings may immediately enter upon the premises with the necessary workmen and assistants and cause such unsafe structure to be made safe or taken down without delay, and a proper fence put up for the protection of passersby, or to be made secure. If such a building or structure is taken down or removed, the lot shall be levelled to uniform grade by a proper sanitary fill to cover any cellar or foundation hole and any rubble not removed. As amended St. 1949, c. 156, §2; St. 1957, c. 214, §2. (Emphasis added.)

[Note 4] G. L. c. 143, §8. §8. Failure to remove or make structure safe; survey board; survey; report. If an owner, lessee or mortgagee in possession of such unsafe structure refuses or neglects to comply with the requirements of such notice within the time limited, and such structure is not made safe or taken down as therein ordered, or made secure, a careful survey of the premises shall be made by a board consisting in a city of the city engineer, the head of the fire department, as such term is defined in section one of chapter one hundred and fortyeight, and one disinterested person to be appointed by the inspector of buildings, and in a town of a surveyor, the head of the fire department and one disinterested person to be appointed by the inspector of buildings. If there is no city engineer in such city or no head of the fire department in such city or town, the mayor or selectmen shall designate one or more officers or other suitable persons in place of the officers so named as members of said board. A written report of such survey shall be made, and a copy thereof served on such owner, lessee or mortgagee in possession. As amended St. 1945, c. 697, §l; St. 1949, c. 541, §2; St. 1957, c. 214, §3. § 9. Dangerous Structure to Be Removed or Repaired by Local Inspector; Penalty for Continued Refusal, etc., to Remove, etc., by Owner; Enforcement of Lien. If such report declares such structure to be dangerous or to be unused, uninhabited or abandoned, and open to the weather, and if the owner, lessee or mortgagee in possession continues such refusal or neglect, the local inspector shall cause it to be made safe or taken down or to be made secure, and, if the public safety so requires, said local inspector may at once enter the structure, the land on which it stands or the abutting land or buildings, with such assistance as he may require, and secure or remove the same, and may remove and evict, under the pertinent provisions of chapter two hundred thirty-nine or otherwise, any tenant or occupant thereof and may erect such protection for the public by proper fence or otherwise as may be necessary, and for this purpose may close a public highway. In the case of such demolition, the local inspector shall cause such lot to be levelled to uniform grade by a proper sanitary fill. The costs and charges incurred shall constitute a lien upon the land upon which the structure is located and shall be enforced in an action of contract, and such owner, lessee or mortgagee in possession shall, for every day's continuance of such refusal or neglect after being so notified, be punished by a fine of not less than ten nor more than fifty dollars. The provisions of the second paragraph of section three A of chapter one hundred and thirty-nine, relative to liens for such debt and the collection of claims for such debt, shall apply to any debt referred to in this section, except that the local inspector shall act hereunder in place of the mayor or board of selectmen. During the time such order is in effect it shall be unlawful to use or occupy such structure or any portion thereof for any purpose. (Amended by 1972, 802, §25, approved July 19, 1972; by §77 it takes effect on Jan. 1, 1975.)

[Note 5] G. L. c. 143, §10. §10. Person Aggrieved May Apply for Jury. An owner, lessee or mortgagee in possession aggrieved by such order may have the remedy prescribed by section two of chapter one hundred and thirty-nine; provided, that no provision of said section two shall be construed so as to hinder, delay or prevent the inspector acting and proceeding under section nine; and provided, further, that this section shall not prevent the city or town from recovering the forfeiture provided in said section nine from the date of the service of the original notice, unless the order is annulled by the jury.