MISC 117905

August 26, 1988

Suffolk, ss.



This matter was commenced by complaint filed October 10, 1985. The plaintiff seeks a determination as to the nature and extent of her title to the premises located at 115 Shore Drive, Winthrop. The defendant claims to hold said premises under a 99-year lease containing an option to purchase. It is agreed by the parties that there has been no recording of the lease or any memorandum thereof as provided for by G.L. c. 183, §4. However, the defendant alleges the plaintiff had actual notice of the lease prior to the closing date.

This matter was tried on May 15, June 24, July 20 and December 4, 1987. At each session a stenographer was sworn to record and transcribe the testimony. Eight witnesses testified and portions of the deposition of Stephen Young, grantor of premises to the plaintiff, were read into the record. Twenty-five exhibits were introduced into evidence and are incorporated herein for the purpose of any appeal.

In consideration of all of the evidence, I find as follows:

1. During the spring of 1981, the plaintiff through her agent and husband, Edward F. Bomarsi, negotiated with Stephen Young for the purchase of the premises located at 115-117 Shore Drive, Winthrop (the "premises").

2. The premises contained a six-family dwelling [Note 1] and an ice cream stand known as The Sundae. The premises were so described by Stephen Young to Edward Bomarsi. At this time, the premises were owned by Stephen and Elaine Young.

3. During the course of negotiations, Stephen Young showed the premises to Edward Bomarsi and informed him that The Sundae was rented to the defendant Philip R. Boncore who operated it three months of the year and in return paid the annual taxes on the portion of the premises The Sundae occupied.

4. In the spring of 1980, the defendant Philip R. Boncore and the Youngs entered into a 99-year lease for that portion of the premises known as "The Sundae." The "lease" is not notarized and was never recorded (Exhibit 21). Around the same time, the defendant made a written offer to purchase The Sundae provided a zoning variance could be obtained to divide the premises into two separate lots. This proposal is signed by the defendant and a real estate broker but not by the Youngs (Exhibit 20).

5. Neither of the Bomarsis was informed of or knew of the alleged 99-year lease on The Sundae until well after the closing.

6. In April of 1981, Stephen Young told Edward F. Bomarsi that the defendant had been given an "option" to purchase the premises for the sum of $92,500, but that he had refused to purchase the property at that price. There was no evidence presented as to the details or full nature of such "option" and accordingly, I do not find that the defendant as a matter of law had an option.

7. By agreement dated April 22, 1981, the plaintiff agreed to buy and Stephen and Elaine Young agreed to sell the premises. Line 21 of the agreement reads "The Seller to give Buyer possession of the Real Estate with Tenants at Will - No Leases ...."

8. Attorney Thomas F. Hanley, representing the mortgagee bank, searched the title on the premises forward from March 8, 1920 to June 15, 1981, the date of the closing. There is no record notice of a 99-year lease of the premises. The defendant agrees there was no such recording.

9. On June 15, 1981, the plaintiff purchased the premises in accordance with the agreement. The closing was at the office of Mr. Hanley. Present were Mr. Hanley, the plaintiff, her husband, and the Youngs. There was no mention of a 99-year lease and/or option on "The Sundae".

10. Had they been aware of a 99-year lease on The Sundae, the plaintiff would not have bought the premises and Mr. Hanley would not have certified title to the premises nor advised the mortgagee to complete the financing.

11. In November 1981, the plaintiff sent the defendant a bill for rent for an unspecified period, presumably one-half of calendar 1981. The bill contained the phrase "Below is a breakdown of the rent due as per lease and agreement." In December, she sent the defendant a form "Notice to Quit For Non-Payment of Rent." The form uses statutory language generally pertaining to a residential tenant at will. Bills were also sent for 1982, 1983 and 1984 rent; none of which refer to a lease. I find that the use of the words "as per lease" in 1981 by plaintiff was intended by her to refer to the defendant's tenancy at will - a practice not uncommon among persons not particularly well versed in law.

12. In 1985, the plaintiff brought an action in the East Boston District Court seeking to evict the defendant for nonpayment of rent. At the hearing, the plaintiff and her husband first heard the defendant's allegation of a 99-year lease.

13. Neither the plaintiff nor her husband interfered with the lease between P & S Catering, Inc. and Robbie's Restaurant, Inc.

14. The defendant Philip R. Boncore is an attorney at law and has been engaged in practice in this Commonwealth for approximately the last fifteen years.

In consideration of the foregoing and all of the evidence, I rule as follows:

G.L.c. 183, §4 states in part:

. . . a lease for more than seven years from the making thereof shall not be valid against any person except the . . . lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy . . . or a notice of lease . . . is recorded in the registry of deeds for the county . . . in which the land to which it relates lies. . . .

The defendant does not contest the fact that neither the lease nor any notice of it was so recorded. The defendant as an attorney is presumed to know the possible consequences of such failure.

The defendant relies upon the provisions of the statute that provide that such lease is valid against persons having actual knowledge of it. In such instances, the burden of proof as to such knowledge is upon the party relying upon the unrecorded instrument, Hughes v. William, 229 Mass. 467 , 470 (1918). The words "actual notice" have been construed with considerable strictness since the holder of an unrecorded instrument can protect himself simply by recording it in the appropriate registry of deeds, Richardson v. Lee Realty Corp., 364 Mass. 632 , 635 (1974). This is so even in this situation where the lease is not acknowledged. Initially, the defendant could have required such acknowledgment prior to creating the lease and secondly, if omitted by oversight, there are available means of putting notice, at least of the claim of leasehold, on record. "Knowledge of facts which would ordinarily put a party on inquiry is not enough ." Tramontozzi v. D'Amicus, 344 Mass. 514 , 517 (1962) citing McCarthy v. Lane, 301 Mass. 125 , 128.

Inasmuch as neither the plaintiff nor her husband had any notice at all of the lease or defendants claims thereunder until about four years after the purchase of the premises, the plaintiff's title to the premises was and is not affected by the defendant's claimed lease. The plaintiff is the holder of a fee simple in the entire premises to the exclusion of the defendant.

The parties have requested various findings of fact and rulings of law. I have considered all of such requests. Certain of the requests I have incorporated into this decision. Those I have not so incorporated are denied either as unsupported by the evidence or as immaterial.

Judgment accordingly.


[Note 1] The title to the six-family dwelling, 117 Shore Drive, is not in question.