MISC 140459

March 31, 1992

Middlesex, ss.



Defendants, Don E. and Marion A. Cannon, filed a petition in this Court (Case 128716) under G. L. c. 60, §80B to establish their title to a parcel of land in Mattapoisett ("Locus") acquired by a tax taking and low value sale by the Town of Mattapoisett ("the Town"). That case resulted in an Order dated December 7, 1989 requiring Plaintiffs, Katherine Masotta and Dorothy Provencher, to bring and prosecute an action to try their adverse claims to Locus on or before January 8, 1990. Plaintiffs accordingly brought this Petition To Try Title. Plaintiffs seek a declaration that the tax taking and low value sale were invalid because they failed to comply with statutory requirements under G. L. c. 60, §79 and violated due process under the Fourteenth Amendment.

A trial was held on July 9, July 10, and September 5, 1991. A stenographer was appointed to record and transcribe the testimony. Thirty-seven Exhibits (some with multiple parts) were introduced into evidence (these are numbered 1 through 38, #8 not being used); all of them are incorporated in this Decision for purposes of any appeal.

The following witnesses testified: Kathleen F. Briggs, Treasurer and Tax Collector of the Town; Robert J. Fay, Assessor of the Town; Arthur Larrivee, a real estate appraiser; both Plaintiffs; and Salvatore Masotta, husband of Plaintiff Masotta, all for Plaintiffs; and both Defendants; and Pamela Cannon, Defendants' daughter, for Defendants.

I find and rule as follows:

1. Locus is a parcel of land in the Town numbered 636 on a Plan of Shore Lots, Brant Island Beach as surveyed by Frank M. Metcalf, May 1915, recorded at Plymouth County Registry of Deeds (all recording references in this Decision are to that Registry) in Plan Book 5, Page 390.

2. Locus was at one time owned by John Keohane, Jr. (also known as John J. Keohane, Jr.) ("John") and his mother Jennie F. Keohane ("Jennie"). John and Jennie owned Locus as joint tenants, by virtue of a 1954 deed to them recorded at Book 2354, Page 420 (Exhibit 1). Jennie died January 29, 1971. John died on or about October 13, 1978. Plaintiffs are John's sisters and heirs at law.

3. The Collector of Taxes for the Town published notice on June 28, 1972 in the Presto Press that he would take Locus on July 14, 1972 for failure to pay $112.80 1971 real estate taxes. The entry pertaining to Locus was "John Keohane Jr. 18 Locke Street, Arlington, Mass. Br B Lot 636P-14AL-226 B. 2354 P 420 $112.80" (Exhibit 2).

4. Locus was taken by the Town on July 21, 1972 for nonpayment of 1971 taxes assessed to John, as evidenced by a taking recorded August 3, 1972 at Book 3803, Page 508. The Taking described the property as "Brandt Beach Lot 626, (sic), P-14A, L-226, B 2354 P 420" (Exhibit 3).

5. On October 10, 1975, the Town's Treasurer applied to the Commissioner of Corporations and Taxation for a Low Value Affidavit. The Application describes Locus in the same way as the Taking and adds "Beach Lot & Cottage (7500 sq. ft.) 39.95 frontage, Zoned 30,000 Waterfront Topography-Level will flood in hurricanes". Under "Estimated Present Value of Land" is listed "4600" and under "Assessed Value" is listed "2350" (Exhibit 4).

6. An Affidavit of Low Value by the Commissioner of Corporations and Taxation was recorded at Book 4150, Page 793. That described Locus consistently with the earlier documents (Exhibit 5).

7. The Town Treasurer published notice on September 8, 1976 in the Presto Press that on September 22, 1976 he would sell Locus as a Low Value Sale. Locus is described as above and the amount due is stated as $981.36, for 1971 thru 1976-76 Real Estate Taxes (Exhibit 6).

8. A Statement Relative To Tax Title Dated October 10, 1975, concerning the taking of Locus was recorded at Book 4150, Page 794 (Exhibit 7). It recites, among other things, that demand for the payment of taxes was made upon John on May 10, 1972. It further recites that notice of the proposed sale was posted June 28, 1972 (sic) "(1) Inside Town Hall (2) outside Town Hall". Exhibit 10 is a copy of the posted notice.

9. The Town Treasurer conveyed Locus to Defendants by Treasurer's Deed To A Person Land of Low Value, dated September 24, 1976 and recorded September 30, 1976 at Book 4203, Page 471. The Deed recites sale to the highest bidder at public auction for $1,000.00.

10. At the time of Defendants' purchase, there was a one story cottage on Locus. Plaintiffs testified that the cottage had been used by the Keohane family as a weekend retreat. The parties differed as to how long the Keohanes used the property. Defendants (who were familiar with the area) testified that the property was no longer in use after 1965-1970. In any event, by 1976 when Defendants acquired title, the cottage had fallen into an advanced state of dilapidation. It was exposed to the elements and had all the appearances of having been abandoned. After their purchase, Defendants made such repairs as were necessary to render the cottage secure but did not otherwise improve it until the mid to late 1980's, when they made substantial renovations; those included installation of a septic system, rebuilding the foundation, raising the structure three or four feet to satisfy a flood plain requirement, replaced flooring, moving walls and reinforcing beams. The structure is now a completed shell, awaiting installation of electricity, heating, plumbing and interior finishing.

11. Exhibit 21 is a letter from counsel for Plaintiff Masotta inquiring as to the circumstances of the taking, indicating that at least by 1983 she knew of the Town's actions. Plaintiff Provencher testified that she did not know of the taking and sale until 1988, when counsel for her sister wrote her about that. Defendants filed their petition in Case 128716 on July 12, 1988.

12. Plaintiffs attack Defendants' title on several bases. The first is that the notice of low value sale did not comply with statutory requirements. They attack Exhibit 6, the notice of tax sale, because it was published in an allegedly ambiguous block of classified advertisements and not under any appropriate heading such as "legal notices". Exhibit 6 is not, as alleged by Plaintiffs, entitled "More Classifieds"; it does not appear to have any title. The notice of tax sales appears in a box occupying about a quarter of the page, the rest being taken up with various classified advertisements. I conclude that the law does not require more than the Town did in this particular.

13. Plaintiffs also argue that none of the documents involved in the taking and sale listed Jennie as an assessed owner. On January 1, 1971, the date of assessment, she was still alive. (She died on January 29, 1971.) The Town's error was not of significance. Plaintiffs argue that Jennie's heirs or assigns were deprived of an opportunity to pay the tax. However, John and Jennie owned as joint tenants and the only person who took on Jennie's death was John, the surviving joint owner. Finally, G. L. c. 60, §56 allows assessment, sale or taking to be made in the name of one or more of the record owners at the date of assessment.

14. G. L. c. 60, §79 requires that the notice be posted in a "convenient and public place". The Town posted the notice both inside and outside the Town Hall. That location meets the statutory requirement. Defendants allege that the notice of low value sale is defective because it states the incorrect date and recording reference for the Commissioner's Affidavit. The date and reference are indeed wrong but the error is harmless.

15. Defendants also argue that the Town's efforts to notify John and Jennie of the Tax Taking and Low Value Sale violated their due process rights. No notice to Jennie was attempted. As she was long since dead when enforcement was undertaken, and her interest having passed to John, I rule that lack of notice to her is not significant. Notice of the intended low value sale was mailed by the Town Treasurer to John certified mail, return receipt requested, on August 27, 1976. The mailing was addressed to John at 18 Locke Street, Arlington. The mailing was returned to the Town on or about September 15, 1976 marked "Returned to Sender, Moved, Left No Address". No further notice was attempted.

16. Locus had come to the Town's attention before for non-payment of taxes. A 1968 Tax Title Account (Exhibit 15) related to 1967 taxes. On it John's address was listed as 32 Essex Street, Squantum and also 18 Locke Street, Arlington. The Essex Street Address (alone) was also listed on a 1968 Tax Taking for 1967 taxes (Exhibit 16). Finally, an instrument of redemption relating to the 1967 taxes listed the Essex Street address (Exhibit 18).

17. Exhibit 19 (Tax Title Account for 1971 taxes) lists the Locke Street address. The Town's 1969 Valuation list (Exhibit 23) shows the Essex Street address stricken out and the Locke Street address written in in hand. The 1970 and 1971 Valuation lists (Exhibits 24 and 25) show the Locke Street address. Plaintiff Masotta testified that her brother lived at the Essex Street address for about 20 years, until 1972 or 1973 and that John had purchased a house in Arlington; she did not know how long he stayed there; she said he moved to the North End after leaving Essex Street.

18. Plaintiffs argue that the Town had a duty to mail to the Essex Street address once the mailing to the Locke Street address came up empty and that had the Town done so, John's mail would have been forwarded to them. However, I conclude that it would be unreasonable to expect the Town to mail to an address which, as far as its records were concerned, was stale, and from which, as a matter of fact, John had moved three or four years earlier. Also, the Town's actions should be judged against the fact that all the Town was required to do by statute, G.L. c. 60, §79, was to publish and post, both of which the Town did.

19. Plaintiffs suggest that the Town had a duty to consult public records, such as Jennie's death certificate (Exhibit 26). However, here Plaintiffs make Defendants' case. Jennie's death certificate lists John as informant, at the Locke Street address. Consultation of the records at the Registry of Deeds, together with Jennie's death certificate, would have confirmed the Town in its conclusion that John was the sole owner.

20. Defendant Don Cannon ("Don.") testified that before the tax title sale to Defendants in 1976, Don attempted to contact John to discuss the possibility of a direct purchase of Locus from John. Specifically, Don testified that he found that John was a title examiner and called John at Middlesex South Deeds in Cambridge shortly before July 15, 1976 (the sale was on September 22), spoke John about the impending tax sale and suggested that John sell Locus to Don. Don further testified that John hung up the telephone after saying "since I no longer own the property, we have nothing to discuss", or words to that effect. In reaching these findings I do not rely on evidence of any statements made to Don by other persons at the Registry as to John's whereabouts.

21. Don further testified that he sent two letters to John, one dated July 15, 1976 and the other July 26, 1976, describing the impending sale and reiterating Don's offer to purchase. Don testified that those letters were mailed to John at the Registry in Cambridge, that the letters were not returned to Don and that Don never heard further from John.

22. I find that Don did speak to John by telephone, that John had actual notice that Locus was to be sold by the Town and that Don did mail the two letters referred to above.

23. Counsel for Plaintiffs cite In Re. Stacey, 99 B.R. 142 (D. Mass. 1989), Christian v. Mooney, 400 Mass. 753 (1987) and City of Boston v. James, 26 Mass. App. Ct. 625 (1988) in support of the proposition that personal notice of the low value sale was required for the sale to meet due process requirements. I note that James and Christian involved foreclosure under the formal procedure, as to which stricter requirements apply than in the case of low value sales. LaMontagne v. Knightly, 30 Mass. App. Ct. 647 at 652-653 (1991). I note also that Stacey, although relating to a low value sale, did not involve the rights of one holding after a bona fide purchase, as is the case here.

24. The Supreme Judicial Court has perhaps extended an invitation to examine the continued validity of G. L. c. 60, §79's lack of a personal notice requirement (Christian, in dicta, fn 10, at p. 761). That issue need not be joined here, however, for two reasons: first, in light of all the circumstances, I find and rule that the Town met its due process notice obligations by its mailing to John and second, in this case, we have a taxpayer who had actual notice of the impending tax sale.

25. Defendants allege that Locus was not land of low value at the time of the sale in 1976. The real estate appraiser, Arthur Larrivee, testified and introduced an appraisal (Exhibit 38). The appraisal indicates that Locus has a land area of 7,405 square feet, a current assessed value (land) of $84,800 and building ($23,000) and deeded beach rights. The appraisal states that Locus has a water view and is a 2 to 3 minute walk from a sandy beach. The appraisal relies on two allegedly comparable sales to arrive at a July 6, 1991 value of $110,000, of which $75,000 is attributable to land. Relying on his own records of sales in the 1970's Mr. Larrivee concluded that the value of Locus in 1976 was $15,000, of which $10,000 could be attributed to land. Mr. Larrivee did not relate the 1991 value of Locus to a 1976 value. His estimate of the 1976 value was based wholly on sales of aleged comparables; he had no first hand knowledge of Locus in 1976 or even photographs. The validlty of his appraisal is beside the point, however. Under the applicable case law, the accuracy of the Commissioner's low value opinion could have been attacked until the time of the sale, but was not open thereafter. Johnson v. McMahon, 344 Mass. 348 , 356 (1962) and Bigham v. Commissioner, 371 Mass. 270 , 272 (1976).

26. Plaintiffs also point to Exhibit 4, "Application for Affidavit to Foreclose Tax Title Land of Low Value". It has two boxes, one labelled "E", "Estimated present value of land" and the other labelled "A", "Assessed Value". The "E" box for Locus has the figure "4600" and the "A" box the figure "2350". Mr. Fay, the Town's assessor for the past year or so, testified that he understands Exhibit 4 to mean that the market value of Locus in 1971 was $4,600. Under G. L. c. 60, §79 the required opinion of the Commissioner of Corporations and Taxation was that Locus not exceed $2,500 in value. I conclude that Exhibit 4 does not invalidate the Commissioner's Low Value Affidavit and that under the cases cited in the immediately preceding paragraph, Plaintiffs may not attack the Affidavit, particularly where John as assessed owner had actual notice of the proposed sale.

27. Defendants alleged that Plaintiffs' claims are barred by laches but did not develop that argument in any detail at trial and have ignored it in their brief; accordingly I do not rule on the point.

28. There is no indication in the record that the Attorney General of the Commonwealth was notified pursuant to Mass. R. Civ. P. 24 (d) of Plaintiffs' claim that the low value procedure, absent personal notice, is unconstitutional, but as I do not reach the conclusion that such is the case, the omission is not significant.

29. I find and rule that Plaintiffs have not established any claim or claims adverse to Defendants' title to Locus arising out of the tax proceedings upon which Defendants' title is based.

Judgment accordingly.