TLC 77327

April 19, 1988

Suffolk, ss.



The City of Boston (the "City") filed a complaint with this Court on December 23, 1985 to foreclose the tax payer's right of redemption of the premises now known as and numbered 2 Talbot Avenue in the Dorchester District of Boston in the County of Suffolk from a tax taking made by the City on October 31, 1977 and recorded with Suffolk Deeds, Book 9003, Page 520 for nonpayment of the real estate taxes assessed as of January 1, 1975 for fiscal 1976. There is no disagreement among the parties that the real estate taxes with interest, demand and court costs are due and unpaid for the period from calendar 1975 to date other than for a payment of $1,500 made as of February 19, 1988 and for an abatement granted by the City sometime during the period in question.

The matter in dispute and the sole issue between the parties is whether the City was entitled to add to its tax title account the amount charged by a contractor hired by the City to raze the building previously on the locus or whether the City's sole remedy in realizing on its lien was a contract action against the owner.

The State Building Code is applicable to Boston, See Boston v. Muscarella, Tax Lien Case No. 64709, and in 780 CMR section 124.2 there appear the following provisions relative to the removal of dangerous or abandoned structures:

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 shall, for every day's continuance of such refusal or neglect after geing so notified, be punished by a fine in accordance with Section 121.4. The provisions of the second paragraph of Section 3A of Chapter 139 of the Massachusetts General Laws Annotated as amended, 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 said building official shall act hereunder in place of the mayor or board of selectmen.

Said General Laws c. 139, §3A, as most recently amended by St. 1984, c. 166, §2 in its entirety reads as follows:

If the owner or his authorized agent fails to comply with an order issued pursuant to section three and the city or town demolishes or removes any burnt, dangerous or dilapidated building or structure or secures any vacant parcel of land from a trespass, a claim for the expense of such demolition or removal, including the cost of leveling the lot to uniform grade by a proper sanitary fill, or securing such vacant parcel shall constitute a debt due the city or town upon the completion of demolition, removal, or securing and the rendering of an account therefor to the owner or his authorized agent, and shall be recoverable from such owner in an action of contract.

Any such debt, together with interest thereon at the rate of six per cent per annum from the date such debt becomes due, shall constitute a lien on the land upon which the structure is or was located if a statement of claim, signed by the mayor or the board of selectmen, setting forth the amount claimed without interest is filed, within ninety days after the debt becomes due, with the register of deeds for record or registration, as the case may be, in the county or in the district, if the county is divided into districts, where the land lies. Such lien shall take effect upon the filing of the statement aforesaid and shall continue for two years from the first day of October next following the date of such filing. Such lien may be dissolved by filing with the register of deeds for record or registration, as the case may be, in the county or in the district, if the county is divided into districts, where the land lies, a certificate from the collector of the city or town that the debt for which such lien attached, together with interest and costs thereon, has been paid or legally abated. Within a reasonable time after making the claim the mayor or the board of selectmen shall certify to the assessors the list of claims upon the land therein who shall forthwith commit such claims with their warrant to the collector of taxes thereof, and he shall forthwith send notice in accordance, except as to the date of notice, with section three of chapter sixty, to the person who was liable to assessment therefor on the preceding January the first under the provisions of chapter fifty-nine as the owner of each parcel assessed, and any demand for payment of such claim shall be made upon such person. Such collector shall have the same powers and be subject to the same duties with respect to such claim as in the case of the annual taxes upon real estate and the provisions of law relative to the collection of such annual taxes, the sale or taking of land for the nonpayment thereof, and the redemption of land so sold or taken shall apply to such claim.

It seems clear from the language of section 3A, from the Muscarella decision and from the law prior to the enactment of the State Building Code, see Boston v. Ditson, 4 Mass. App. Ct. 323 (1976), 429 U.S. 1057 dismissing appeal and denying cert., that the action in contract is not exclusive, and that the City may add the expenses incurred in demolishing the building to its tax account if:

a) that statement of claim is seasonably filed for record in the Registry of Deeds, as was done here and;

b) the claim is certified to the assessors within a reasonable time who then are forthwith to commit such claims to the collector.

In addition to her argument as to the sole remedy, the defendant also contends that the certification was not done within a reasonable time. The computer records of the City, however, show a building razing charge for the tax year 1978 and a certification on August 31, 1979. The procedural steps required by General Laws Chapter 60 thereafter were followed. I therefore find and rule that the City is owed the sum of $26,286.53 as of February 24, 1988 and the defendant is entitled to redeem upon payment to the City on or before July 1, 1988 of said amount together with interest allowed by the statute from February 24, 1988 to date of payment and costs of $109.00.

Judgment accordingly.