MISC 99384

November 17, 1980

Plymouth, ss.

Fenton, J.


This case came on to be heard and was argued by counsel for the plaintiffs upon their motion for summary judgment.

Plaintiffs filed a complaint to remove a cloud on title to land jointly owned by them in Pembroke, Plymouth County. Plaintiffs allege that their title is clouded by a purported Notice of Contract placed on record by the defendant corporation. They further allege that the Notice of Contract does not comply with G. L. c. 254, §2 and is, therefore, invalid. Plaintiffs ask that the court declare that the Notice of Contract is invalid and of no force and effect and that plaintiffs own their property in fee simple as joint tenants, free from any rights in favor of the defendant or its assigns.

Defendant corporation answers that the Notice of Contract complies with statutory requirements and creates a valid lien on the plaintiffs' property.

Based on the pleadings and documentary materials (including the purported Notice of Contract), I rule that there are no issues as to any material facts. Therefore, the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P. See Community National Bank v. Dawes, 369 Mass. 550 (1976).

From the aforesaid information I find the following facts:

The plaintiffs are owners as joint tenants of a certain parcel of land with the buildings thereon located at 5 Hatch Road, Pembroke, Plymouth County, being Lot No. 322 (the premises) on a plan entitled, "Furnace Pond Colony, Pembroke, Mass., Nov. 2, 1949" recorded in Plan Book 7, Page 934. [Note 1] Plaintiffs acquired title by a deed from Lawrence Ginsberg, Trustee of Sinai Realty Trust, dated May 2, 1980, recorded at Book 4825, Page 106.

On January 16, 1980, a handwritten instrument entitled "Notice of Contract" and dated January 16, 1979, was recorded at Book 4782, Page 215, listing Sinai Realty Trust as owner of the premises and signed by "R. A. Messineo, President, Randy's Plumbing and Heating."

The instrument sets forth that services, including labor and material for the erection, alteration, repair or removal of a plumbing and heating system on the premises rendered "up to and including January 16, 1980 show a fair market value due to said contractor of Four Thousand ($4,000.00) Dollars." The instrument does not make reference to any written contract between the parties, nor does it contain a completion date.

The sole issue before the court is whether or not the purported notice of contract recorded by the defendant complies with the requirements of G. L. c.254, §2, thereby constituting a valid lien on the premises.

In order to establish a lien pursuant to G. L. c. 254 §2, strict compliance with the statute is necessary. "One essential requirement is that the notice set out that 'said contract is to be completed on or before .'" Baltimore Contractors, Inc. v. Dupree, 352 Mass. 83 (1967).

The pleadings in the instant case establish that the instrument, a copy of which is appended to the complaint as Exhibit 3, and recorded by the defendant on January 16, 1980, did not set out a date on or before which the contract was to be completed as required by statute. I, therefore, rule that no statutory lien was established. Plaintiffs' motion for summary judgment is granted.

Judgment accordingly.


[Note 1] All instruments referred to herein as being recorded are recorded with Plymouth County Deeds.