MISC 13-478429

March 4, 2014

Middlesex, ss.

Scheier, J.


Plaintiff initiated this action on July 3, 2013, by filing a petition for partition asking the court to appoint a commissioner to make the partition of property co-owned by the parties, in equal shares. [Note 1] On July 23, 2013, Defendants filed an answer, which included Defendant’s assertion that both Plaintiff and Defendant (and others who had then-existing interests or possible future interests) had entered an agreement dated August 27, 1990, not to partition the real estate that is at issue in this litigation.

The case is before the court on cross-motions for summary judgment. On August 15, 2013, Defendant filed a motion for summary judgment on Plaintiffs’ Petition. [Note 2] Plaintiff filed a written opposition [Note 3] together with a cross-motion for summary judgment, a memorandum in support of the motion for summary judgment, and Plaintiff’s affidavit. Thereafter, Defendant retained limited representation counsel and filed a memorandum in support of her motion for summary judgment on October 8, 2013. A hearing was held on October 21, 2013, at which all parties were heard. [Note 4] For the reasons discussed below, this court rules that Plaintiff’s Motion for Summary Judgment is DENIED and Defendant’s motion is GRANTED.

The summary judgment record includes pleadings and Mr. Rocco’s affidavit, in addition to the parties’ briefs and submissions, to which are attached several documents filed pursuant to Land Court Rule 4. The following material facts are not in dispute. [Note 5]

1. Plaintiff and Defendant are tenants in common of a three-family house and property located at 42 Radcliffe Road in Somerville (Property).

2. Under Certificate of Title No. 220613 registered with the Land Court District of the Middlesex South Registry of Deeds, Plaintiff and Defendant each own an undivided one-half co-tenancy interest in the Property.

3. Plaintiff lives at the Property on the third floor in apartment #3.

4. Defendant lives at the Property on the first floor in apartment #1.

5. Apartment #2 on the second floor is, and has been for some time, unoccupied, but it had been occupied for some time by Agnes Gioia, sister of Jenny and Anna, and Agnes’ family.

6. Plaintiff’s late wife, Jenny P. Rocco, Defendant Anna Martignetti, and Agnes Gioia were sisters. [Note 6] They came into co-ownership of the Property from their mother in 1962.

7. Upon the death of Agnes Gioia, her husband Lawrence Dolloff, and three heirs became co-owners of the one-third undivided interest in the Property held by Agnes.

8. On March 22, 1990, Mr. Dolloff and other heirs of Agnes brought a Petition for Partition of the Property in the Middlesex Probate and Family Court, which was settled by the purchase of Agnes’ interest by her sisters, Jenny Rocco and Anna Martignetti, who became equal co-tenants of one-half undivided interests. Shortly after Jenny and Anna purchased their sister’s interest, they entered into a notarized agreement dated August 27, 1990 (Agreement),which provides in relevant part:

“After the death of either Jenny P. Rocco [Plaintiff’s late wife] or Anna Martignetti and during the life of either the survivor of them and/or Anthony Rocco, there shall by no sale of this real estate without the consent of all the surviving parties to the AGREEMENT nor shall any party to this AGREEMENT bring a petition for partition of this real estate.” (Emphasis added).

9. Other signatories to the Agreement were: Plaintiff Anthony Rocco, Jenny’s husband, and Anthony Martignetti, Sylvia Martignetti, and Sandra Martignetti, the daughters of Anna and Anthony Martignetti.

10. Following the death of Jenny Rocco in February 2001, her husband, Anthony Rocco, became the registered owner of his late wife’s one-half undivided co-tenancy interest in the Property, with his sister-in-law as his equal co-tenant. [Note 7]

11. Plaintiff brought this action on July 23, 2013, seeking to partition the Property because he lives on the third floor and living on the third floor has become difficult for him due to his failing physical health and his inability to walk up three flights of stairs to his apartment. [Note 8]

* * * * *

This case is before the court pursuant to cross-motions for summary judgment. “Rule 56(c) of the Massachusetts Rules of Civil Procedure. . . provides that a judge shall grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Attorney General v. Bailey, 386 Mass. 367 , 370-71 (1982) (citations omitted). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue of fact and that the record entitles them to judgment as a matter of law. Kourouvacilis v. G.M. Corp., 410 Mass. 706 , 711 (1991). This case is ripe for summary judgment because the material facts are not in dispute and the case may be decided based on applicable law.

In considering the materials in support of any motion for summary judgment, “the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.” Hub Assocs. v. Goode, 357 Mass. 449 , 451 (1970), quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). However, where, as here, the court is faced with cross-motions, the court must analyze the parties' legal positions at the summary judgment stage guided by which party has the burden on the issues before the court.

Ordinarily, a plaintiff in a partition action need only establish his or her co-tenancy in the property at issue in order to have a right to partition by division or sale. G. L. c. 241. While as a general rule, every co-tenant “is entitled as a matter of right to a partition, and . . . one cannot be required to hold a tenancy in common against his consent,” the possibility of waiving one’s right to partition also has been recognized. See Roberts v. Jones, 307 Mass. 504 , 506 (1940) (recognizing that co-tenants may agree to waive their right to partition, but declining to enforce such an agreement that fell outside the Rule Against Perpetuities). Thus, the Agreement in question should be analyzed and interpreted as any contract would. “[C]ontract interpretation is largely an individualized process, with the conclusion in a particular case turning on the particular language used against the background of other indicia of the parties' intention.” Shea v. Bay State Gas Co., 383 Mass. 218 , 222-23 (1981) (quoting United States v. Seckinger, 397 U.S. 203, 213 n. 17 (1970)).

Here, the parties to this action and other signatories to the Agreement expressly described within it that “Jenny P. Rocco and Anna Martignetti desire and intend that they and Anthony Rocco, the husband of Jenny P. Rocco, shall reside in said real estate for the remainder of their natural lives.” Importantly, the Agreement was entered into by the two sisters (and their immediate potential heirs) on the heels of a settlement in the partition action brought by their late sister Agnes’ heirs. The Agreement is replete with language that sets the context for the parties’ concern that each of Jenny Rocco, Anna Martignetti and Anthony Rocco would be able to remain in their homes without fear of a partition action causing a sale and subsequent possible eviction. [Note 9] Defendant correctly argues that the Agreement constitutes a valid and enforceable contract among the parties to it, preventing the current co-tenants Anthony Rocco or Anna Martignetti from bringing this petition for partition. This court agrees that, barring a failure for other reasons, the Agreement may be enforced, despite the harsh consequences for Plaintiff that he alleges he will suffer.

Plaintiff makes three arguments in support of deficiencies in the Agreement that he argues should prevent its enforcement as a contract: Lack of adequate consideration, illegal restraint on alienation, and violation of the Rule Against Perpetuities.

1. Lack of Consideration

Mr. Rocco argues that the Agreement lacks sufficient consideration to bind the parties, but that position is against the weight of authority. Forbearance of a legal right has been considered sufficient consideration in Massachusetts contract law since the mid-1800’s. See Mecorney v. Stanley, 62 Mass. 85 (1851). Further defining the import of forbearance, it is also well-settled that mere forbearance without any promise or agreement is not consideration. Id. at 85. Here, the Agreement to forbear is clear and explicit, with both parties (and their potential heirs) agreeing to waive their respective individual rights to seek partition. The very existence of cases where there have been agreements prohibiting partition is proof that these agreements are valid within certain parameters. See Roberts v. Jones, 307 Mass. 504 (1940); Alexander v. Snell, 12 Mass. App. Ct. 323 (1981). Tellingly, no mention of any other consideration is made in these cases. Thus, with no specific law indicating that consideration must be completely independent of the actual purpose of the contract, sufficient consideration may be found here in the mutual forbearance of each of the parties to the Agreement.

2. Restraint on Alienation and the Rule Against Perpetuities

The Agreement does not fail as an invalid restraint on alienation. In fact, the Supreme Judicial Court held in Roberts supra, that an agreement between tenants-in-common binding the parties from asserting any right to partition is not contrary to public policy if it extends for only a reasonable time. See Roberts, 307 Mass at 506. While the term ‘reasonable’ has not been clearly delineated, in Roberts a fifteen year restraint on alienation was deemed reasonable. Id. at 507. The age of the parties at the time of the agreement is one factor in the determination of reasonableness. See Monahan v. Crossley, C.A. 74-185, 1979 WL 196027 (R.I. Super. July 24, 1979) (citing Michalski v. Michalski, 142 A.2d 645, 50 N.J. Super. 454 (1958)) (where parties who executed agreement to waive right to petition were advanced in age, the plaintiff having been over 60 and the defendant over 70). Here, the Agreement was entered into twenty-four years ago, when Plaintiff and Defendant were approximately sixty years old. [Note 10] While several of the signatories to the Agreement were younger, it is the ages of Plaintiff and Defendant that determines the possible length of the restraint on alienation.

Finally, the Agreement does not violate the rule against perpetuities. Plaintiff incorrectly argues that the Agreement is unlimited in time. This is not correct as the last paragraph in the Agreement expressly indicates that the waiver of the right to partition or sell ceases when Anna Martignetti, Jenny Rocco, and Anthony Rocco, all the designated lives-in-being, are deceased.

This court holds that the Agreement entered into on August 27, 1990, operates as a valid and enforceable waiver of the right to partition by the parties to this action. The court has been informed that the parties have engaged in some discussions regarding a possible buy-out of Plaintiff’s interest. They are encouraged to confer further, with the help of counsel if possible, and if Defendant is able to engage counsel for this purpose, to determine whether they will pursue mediation. The court is tasking Plaintiff’s counsel with responsibility to report to the court in writing not later than March 21 (copies to Defendant or her attorney, or both if she retains an LAR attorney), to inform the court whether the parties are interested in mediation. If they are, and they desire that this court refer them to a mediation provider, the court will proceed to do that after conferring further with the parties by telephone. If no one contacts the court on or before March 28, 2014, a judgment in Defendant’s favor dismissing the partition petition will issue in conformance with this decision.

So ordered.


[Note 1] The property at issue is subject to a mortgage in favor of RBS, Citizens Bank granted by the parties on July 12, 2002, noted as Document no. 1487112, on Certificate of Title no. 220613 filed with the Middlesex South Registry District of the Land Court.

[Note 2] Defendant filed this motion without representation. Even though Defendant’s correspondence attached to the motion indicated that she wished to file both a summary judgment motion and a motion to dismiss, because documents outside the pleadings were attached to the motion, the court is treating it as a motion for summary judgment.

[Note 3] Plaintiff’s opposition likewise is treated as an opposition to a motion for summary judgment.

[Note 4] An LAR appearance was filed on behalf of Ms. Martignetti for the summary judgment hearing. The LAR attorney appeared and argued, and has since withdrawn.

[Note 5] The parties did not provide a Joint Statement of Material Facts, in accordance with Land Court Rule 4, so the undisputed facts are gleaned from the record.

[Note 6] The finding that Agnes Giogia is Jenny and Anna’s sister is taken from paragraph 2 of the “undisputed facts” contained in Defendant’s Memorandum In Support of Summary Judgment.

[Note 7] Plaintiff’s affidavit states that he and his wife Jenny together purchased their interests in the Property in July 1990, from Lawrence Dolloff and others, but the various deeds submitted indicate that the grantors conveyed their interests to Jenny Rocco and Anna Martignetti. In any event, Plaintiff’s co-tenancy status has not been put in issue in this case and it appears that either as a surviving tenant-by-the-entirety, or as the surviving widower, Mr. Rocco has a one-half undivided interest in the Property.

[Note 8] Mr. Rocco proffered a letter from his doctor dated June 6, 2013, confirming that Plaintiff has “multiple medical problems” and moving to a place “where there are fewer stairs to climb seems like a medically advisable plan.” Plaintiff’s medical condition has not been challenged.

[Note 9] The Agreement further sets forth in paragraph II “After the death of either JENNY P. ROCCO or ANNA MARTIGNETTI and during the life of either the survivor of them and/or ANTHONY ROCCO, there shall be no sale of [the Property] without the consent of all of the surviving parties to this AGREEMENT nor shall any party to this AGREEMENT bring a Petition for Partition of this real estate.”

[Note 10] In his affidavit, Mr. Rocco refers to having executed the Agreement thirty-three years ago, but the Agreement, a copy of which is in the record, is dated August 27, 1990.