On September 16, 1983, the Plaintiff, City of Boston ("City"), filed a petition to foreclose all rights of redemption in the Defendant, Terry Triantafyllos, with respect to a certain parcel of real estate located at 8 Moloney Street in the West Roxbury District of Boston ("Locus"). This petition was filed allowing a taking of Locus by the City on September 13, 1977 due to nonpayment of real estate taxes for the fiscal year 1975, said taxes having been assessed to one Herbert L. O'Neil. Thereafter, on December 3, 1984, Terry and Mary Triantafyllos (collectively referred to as the "Triantafylloses") commenced Miscellaneous Case No. 115261, seeking a declaration as to the validity of the City's tax lien. Tax Lien Case No. 69742 and Miscellaneous Case No. 115261 were consolidated for trial.
On October 1, 1987, this Court entered an Order denying the Triantafylloses' motion for summary judgment. Subsequently, on May 12, 1989, the cases were submitted on an Agreed Statement of Facts, with nine stipulated exhibits attached thereto, and oral arguments of counsel. Certain of the stipulated facts and all exhibits are incorporated herein for purposes of any appeal.
On all of the evidence, I find and rule as follows:
1. On January 1, 1975, Locus was owned and occupied by one Herbert L. O'Neil ("O'Neil").
2. O'Neil died on April 3, 1975 (See Exhibit No. 1), his will being allowed by the Suffolk County Probate Court on June 5, 1975 (See Exhibit No. 2).
3. In accordance with O'Neil's will, his son, James H. O'Neil, and his daughter, Marilyn M. Morrissey (collectively referred to as "Co-Executors"), were appointed Co-Executors of the same on June 5, 1975 (See Exhibit No. 3).
4. A Certificate of Municipal Liens ("Certificate") was issued by the City to the Triantafylloses on September 19, 1975. The Certificate indicated that no property taxes were due on Locus for the years, 1973, 1974 and 1975.
5. A license for the sale of Locus was issued to the CoExecutors by the Suffolk County Probate Court on September 23, 1975 (Exhibit No. 5).
6. The Co-Executors conveyed Locus to the Triantafylloses on October 15, 1975, the same being evidenced by a deed recorded at Book 8824, Page 328 in the Suffolk County Registry of Deeds (Exhibit No. 6). The Triantafylloses have occupied Locus as their principal residence since the date of this conveyance.
7. The Suffolk County Probate Court number previously assigned to O'Neil's estate (No. 489334) was entered on the City of Boston Assessors' records and on the aforementioned deed into the Triantafylloses (See Exhibit No. 7).
8. On January 1, 1976, the real estate taxes due on Locus for the 1977 fiscal year were assessed to the Triantafylloses (See Exhibit No. 8).
9. On October 31, 1977, the City recorded an Instrument of Taking ("Instrument") at Book 9004, Page 577 in the Suffolk County Registry of Deeds (Exhibit No. 9). The Instrument includes the following pertinent language:
Whereas the taxes . . . assessed by the Board of Assessors of the City of Boston as of January 1, 1975, to O'Neil, Herbert L. upon [Locus] . . . and
Whereas said taxes having not been paid, a demand for the payment of said taxes and the interest, costs and charges then due was made in conformity with law on June 4, 1976, upon O'Neil, Herbert L. . . . (emphasis supplied).
Massachusetts General Laws Chapter 60, section 16 sets forth the procedure governing the Tax Collector's duty to make a demand for payment of unpaid property taxes prior to a sale of such property. Section 16 provides in relevant part as follows:
The collector shall, before selling the land of a resident . . . [for nonpayment of taxes], serve on him a statement of the amount thereof with a demand for its payment . . . Such demand for the tax upon the land may be made upon the person occupying the [property] on January first of the year in which the tax is assessed (emphasis added) Demand shall be made by the collector by mailing the same to the last or usual place of business or abode, or to the address best known to him, and failure to receive the same shall not invalidate a tax or any proceedings for the enforcement or collection of the same.
As written, section 16 requires the Tax Collector to make his demand for taxes upon only the party occupying the premises as of January first of the year in which the tax is assessed, which year is not in this instance the fiscal year. G.L. c. 59, §11; City of Boston v. Lynch, 304 Mass. 272 , 275-276 (1939); Milton v. Ladd, 348 Mass. 762 , 764 (1965).
In the matter herein, the City of Boston made a taking of Locus due to nonpayment of taxes for the fiscal year 1976, such period having commenced on July first of 1975 and having ended on June thirteenth of 1976. Accordingly, upon the City's failure to receive payment of the same, the city Collector-Treasurer properly made a demand for such payment upon Herbert L. O'Neil, the party occupying Locus as of January first of 1975, the year in which the property tax for fiscal year 1976 was assessed. The Certificate of Municipal Liens which was issued to the Triantafylloses on September 19, 1975 is thus correct inasmuch as it certifies that the property taxes due on Locus for the years 1973 through 1975 were paid as of that date. Specifically, on September 19, 1975, all property taxes due on Locus for fiscal year 1975 had been paid. Fiscal year 1976 was thus in progress as of the date of the Certificate, even though taxes for the first half of such year would not be due until November. [Note 1] In so finding, I acknowledge the complexity in interpreting G.L. c. 60, §16, but note further that the owners in fact of any given parcel of real estate hold such parcel subject to a lien for the payment of the property tax thereupon, irrespective of the person to whom such property may be assessed. City of Boston v. Quincy Market Cold Storage Co., 312 Mass. 638 , 644-645 (1945); Milton at 764; City of Springfild v. Schaffer, 12 Mass. App. Ct. 277 , 278-279 (1981).
In consideration of the foregoing, I find and rule that, as to Miscellaneous Case No. 115261, the Collector-Treasurer for the City of Boston committed no procedural error in making a demand for payment of property taxes due on Locus for fiscal year 1976 upon Herbert L. O'Neil, as Locus was owned and occupied by O'Neil as of January 1, 1975. Accordingly, the City of Boston's tax taking of Locus is valid. I further rule that, as the present owners in fact of Locus, the Defendants Triantafyllos are liable for the payment of property taxes due on Locus for fiscal year 1976, such taxes totalling $747.46, as well as for the payment of all incidental expenses, costs and interest which have accrued as of the date of this decision.
Such payment shall be made within thirty (30) days from the date of the entry of a final judgment herein, after all appeals have been resolved. Otherwise, the City's petition in Tax Lien Case No. 69724 will be allowed.
[Note 1] I take judicial notice herein of the fact that tax bills for any given fiscal year are usually issued to be payable in the months of November and May.