TLC 59982

November 7, 1990

Suffolk, ss.



This is a complaint brought by the City of Boston to foreclose the owner's right of redemption of the premises at 31 Burt Street in said Boston. The defendant admits that the real estate taxes, except for the current year, are unpaid and have been unpaid since 1976 but contends that the amount alleged by the City cannot now be collected by it. The center of the defendant's case is the City's failure to eliminate from the assessment of the property a valuation attributable to the building thereon which had been demolished by the City in 1976 but remained a part of the assessment until approximately 1983. A trial was held at the Land Court on October 31, 1990 at which the proceedings were electronically recorded. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. The parties entered into the following stipulation:

1. John C. Roche, Trustee of Roche Realty Trust conveyed property known as 31 Burt Street Dorchester, Massachusetts Ward 14 Parcel 4640 on City of Boston Assessor's records to Madeline T. Butcher by deed recorded as document #325466 on September 11, 1975.

2. Madeline T. Butcher conveyed 31 Burt Street Dorchester, Massachusetts to Charles C. Handy II by deed recorded as document #418022 on February 5, 1987.

3. Charles C. Handy II conveyed 31 Burt Street Dorchester, Massachusetts to Patricia A. Johnson, Trustee of the Burt Street Realty Trust by deed recorded as document #431825 on November 19, 1987.

4. The City of Boston made a tax taking on September 13, 1977 for unpaid Fiscal Year 1976 real estate taxes against John C. Roche, Trustee of Roche Realty Trust, and notice went to Roche.

5. The City of Boston recorded a tax taking on October 31, 1977 in the Suffolk County Registry of Deeds Registered Land Division as document #335899 recorded with Certificate of Title #87067.

6. . . .

7. The City of Boston filed a Petition to Foreclose a tax taking recorded as document #335899 on Certificate #87067 on July 24, 1980.

8. . . .

9. The building at 31 Burt Street Dorchester, Massachusetts was torn down by the City of Boston and the work completed on December 2, 1976.

10. A lien for the razing charges was recorded with Certificate of Title #87067 as document #331958.

11. The cost of the razing was not paid and was not certified to the tax title account.

12. John C. Roche, Trustee of the Roche Realty Trust did not file an application for abatement with the City of Boston Assessing Department for the Fiscal Year 1976 real estate tax.

On all the evidence I find and rule as follows:

1. The defendant was not the registered owner of the premises at the time of the assessment on which the tax taking was based nor at the time of the tax taking.

2. The defendant raises a question as to whether notice of the taking was ever given to the then owner of the premises, but the statute requires that notice be given to the assessed owner, see G.L. c.60, §§53 and 56, and I find that this was done in the regular course of the City's assessing and collecting practices. When the petition to foreclose is filed, the court causes an examination by the records to be made and gives notice to "all persons appearing to be interested". G.L. c. 60, §§65 and 66.

3. The City removed the building on the premises because of its dilapidated condition and assessed a lien against the property. The amount of the lien has never been certified to the tax title account and is not included therein.

4. None of the owners of the locus from the time of the assessment on which the tax taking is based to the present have ever filed an application for an abatement.

5. The City of Boston is owed the sum of $45,052.07 for unpaid real state taxes, costs and interests for the fiscal years 1976 through 1989. The defendant does not presently have the financial ability to pay them.

The City of Boston clearly was in error in including within the assessment a sum attributable to a building which had been removed by the City itself, but this error could have been rectified by the owners from time to time of the real estate by applying for the statutory abatement and an appeal to the Appellate Tax Board pursuant to the provisions of G.L. c. 59, §§59 and 65. No owner has ever taken such a step. The defendant contends that it is within the power of the Court pursuant to the holding in Norwood Civic Association v. Norwood, 340 Mass. 518 (1960) to find such a tax void on the ground that it included within it an invalid sum. The rules of this game, however, are rigid and have recently been made more so by the general court. In any event it has long been the law of this Commonwealth that to attack the amount of an assessment as perhaps distinguished from the liability of an exempt entity to be taxed, the tax payer must file an application for abatement. Such an application has never been filed by any of the owners of this property. Moreover, the present defendant (or the beneficiary of the trust who appears to be the real party in interest, one Charles C. Handy II and who testified at the trial) purchased the property with knowledge of the amount claimed by the City and with some vague hope that relief could be obtained. The city is without power to grant an abatement where the necessary paperwork had not been filed. Any relief must come from the state albeit at the request of the City, but this does not appear to be an appropriate case. If I do have any discretion to abate the taxes or to request the City to seek authority from the state tax commission; I feel it an inappropriate case to do this. Accordingly I find that there is due the City of Boston the sum of $45,052.07 for unpaid real estate taxes, costs and interest as of September 25, 1990 and further find that the defendant may have until February 1, 1991 to make such payments in order to redeem the property.

Judgment accodingly.