GERALD J. PACELLI vs. VINCENT J. PACELLI, JOHN J. PACELLI, JOSEPH V. PACELLI, ROSEMARY COWIE, ANTOINETTE POWERS, BERNADETTE RICHARD, and BANK OF AMERICA.

Factual and Procedural Background

In this case, Petitioner Gerald J. Pacelli ("Gerald") seeks to partition the property located at 134 Thorndike Street in Cambridge (the "Partition Property"), which is owned jointly by Gerald and his three brothers, Respondents John Pacelli ("John"), Joseph Pacelli ("Joseph"), and Vincent Pacelli ("Vincent") as equal tenants in common. The Pacelli brothers' three sisters -- Respondents Rosemary Cowie ("Rosemary"), Antoinette Powers ("Antoinette"), and Bernadette Richard ("Bernadette") -- also have an apparent interest in the prospective proceeds of any sale of the Partition Property based upon an agreement (defined below as the "Sales Agreement") entered into by the parties with respect to the sale of the Partition Property. All of the parties other than Vincent are in agreement that the Partition Propertyshould be partitioned bysale. Vincent disagrees, arguing that the Partition Property may not now be partitioned against his will based upon a provision of the Sales Agreement that purports to require the unanimous consent of Vincent and his brothers in order to transfer the Partition Property. In support of this claim, Vincent argues that such a restriction upon the free alienation of property is both reasonable in scope and appropriately limited in time.

On January 15, 2016, Gerald commenced this case by filing an unverified Petition to partition the Partition Property pursuant to G.L. c. 241. [Note 1] On February 24, 2016, Vincent moved to dismiss the case on procedural grounds. The court declined to act upon that motion when it became apparent that the procedural defect alleged in that motion had been corrected. On March 9, 2016, the court held a case management conference. Thereafter, byorder dated March 10, 2016, this court appointed Neil Kerstein, Esq. as partition commissioner (the "Commissioner"). The Commissioner filed his first report on May 9, 2016, in which he recommended a sale of the Partition Property by a real estate broker.

On April 28, 2016, non-party Maria Mourato ("Maria") moved to intervene in this case, alleging breach of contract against Vincent relative to an alleged agreement pertaining to the rear boundary line of the Partition Property. [Note 2] By order dated May 16, 2016, the court declined to rule on Maria's motion to intervene at that time because the issues raised by Maria "not only appear to be outside of the jurisdiction of this court, but, more importantly, appear to be resolvable by and between the parties without need for court intervention." By the same order, the court further directed the parties to brief motions for summary judgment on the question of whether Gerald is entitled to a partition of the Partition Property in view of the Sales Agreement. On May 26-27, 2016, Gerald and Vincent, respectively, filed responses to the Commissioner's first report. On June 1, 2016, Vincent filed an Answer to the Petition with counterclaims and cross-claims. On July 1, 2016, Gerald filed an Answer to Vincent's counterclaims and cross-claims.

On July 11, 2016 Vincent filed his motion for summary judgment, together with a supporting memorandum, statement of material facts, and an affidavit of Vincent. On July 27, 2016, the Commissioner filed his opposition to Vincent's summary judgment motion. On August 10, 2016, Gerald filed his opposition to Vincent's summary judgment motion, together with a supporting memorandum, statement of additional material facts, and an affidavit of Gerald. No reply briefs were filed. Oral argument on the motion was heard on August 17, 2016, at which time the motion was taken under advisement.

Based upon the evidence in the summary judgment record, I find that the following material facts are not in dispute:

1. Petitioner Gerald and Respondents John, Joseph, Vincent, Rosemary, Antoinette, and Bernadette are siblings. The Partition Property, located at 134 Thorndike Street in Cambridge, is developed with a four unit multi-family house, which has been owned by members of the Pacelli family for over thirty years. [Note 3]

2. The Pacelli Realty Trust (the "Trust") was created by Declaration of Trust (the "Declaration of Trust") dated December 31, 1985, and recorded in the Middlesex County (South) Registry of Deeds (the "Registry") at Book 16695, Page 477. Vincent and John were named as the trustees of the Trust, and the beneficiaries were Vincent, Gerald, John, and Joseph (the "Trust Beneficiaries"). The Declaration of Trust additionally provides, in relevant part, as follows:

2. A. The entire beneficial interest of this Trust shall be vested in the persons named in a Schedule of Beneficial Interests of even date, signed by the Trustees and the Beneficiaries, in the proportions therein set forth.[ [Note 4] ]

B. The term "Beneficiaries" wherever used herein shall mean the person named in the Schedule of Beneficial Interests referred to above as it may be amended by the Trustees and the Beneficiaries from time to time. The Trustees shall not be affected by any assignment or transfer of any beneficial interest by any Beneficiary until receipt by the Trustees of written notice that such assignment or transfer has in fact been made.

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3. A. This Trust shallcontinue untilterminated in the manner provided in Paragraph 6.B or on the sale and conversion into cash of the Trust Premises, whichever event shall first occur, provided, however, that this Trust shall terminate in any event twenty (20) years after the death of the last survivor of the Trustees herein named.

B. Upon the termination of the Trust, the Trust Premises shall automatically vest in the Beneficiaries hereof as tenants in common if more than one, in proportion to their respective interests, or in the name of the sole Beneficiary, if only one, subject to any mortgages, leases, contracts, or other encumbrances on the Trust Premises then existing.

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[4.] B. Except as herein provided in the case of the termination of this Trust, the Trustees shall have no power to deal in or with the Trust Premises, except as directed in writing by all of the Beneficiaries. . . . The Trustees shall not be required to inquire into the propriety of any direction received from the Beneficiaries. Any person dealing with the Trustees shall be fully protected in accordance with the provisions of Paragraph 8 hereof.[ [Note 5] ]

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6. A. This Declaration of Trust may be amended from time to time by the Trustees with the written consent and approval of the Beneficiaries by an instrument in writing signed by the then Trustee or Trustees hereunder and acknowledged by one or more of them . . . . The amendment shall be effective upon the recording with the [Registry] of the instrument of amendment or a Certificate of Amendment which sets forth the exact terms of such amendment which has been signed by a majority of the Trustees or the Trustee, if only one, and acknowledged in the manner required for recording.

B. This Trust may be terminated at any time by any one or more of the Beneficiaries by delivery to all of the Trustees (or to the Trustee, if at that time there shall be only one Trustee) of an instrument in writing setting forth such termination and signed by any one or more of the Beneficiaries and acknowledged in proper form for recording. This Trust may also be revoked and terminated at any time by any one or more of the Trustees by delivery to the Beneficiaries (and to the other Trustees, if such revocation and termination is by less than all of the Trustees) of an instrument in writing setting forth such revocation and termination and signed by any one or more of the Trustees and acknowledged in proper form for recording. Upon delivery of such instrument to the Trustees (or to the Trustee, if at that time there shall be only one Trustee), or to the Beneficiaries, as the case may be, the Trustee or Trustees shall acknowledge receipt of the same and the same shall be recorded in the [Registry]. Such termination shall be effective upon the recording of such instrument with [the Registry].

3. By quitclaim deed dated January 7, 1986, and recorded in the Registryat Book 16695, Page 477 (the "Deed"), Vincent A. and Joseph P. Pacelli [Note 6] deeded the Partition Property to Vincent and John, as trustees of the Trust. In connection with this transfer, John and Vincent, as trustees of the Trust, granted to Central Co-operative Bank an $80,000.00 purchase-money mortgage, which was recorded in the Registry at Book 16695, Page 484 (the "First Mortgage"). [Note 7] [Note 8]

4. By mortgage dated December 27, 1999 and recorded in the Registry at Book 31041, Page 114, John and Vincent, again acting as trustees of the Trust, granted a $100,000.00 mortgage to Fleet Bank (the "Third Mortgage").

5. By document dated February 22, 2000 and recorded in the Registry at Book 31198, Page 176 (the "Resignation"), John resigned as trustee of the Trust, leaving Vincent as the sole trustee.

6. By mortgage dated October 6, 2000 and recorded in the Registry at Book 32004, Page 115, Vincent, acting as sole trustee of the Trust, granted a $150,000.00 mortgage to Fleet Bank (the "Fourth Mortgage"). Concurrently therewith, by trustee's certificate dated October 6, 2000 and recorded in the Registry at Book 32004, Page 114, Vincent claimed to "have been authorized in writing by holders of 100% of the beneficial interests of the Trust to give [the Fourth Mortgage]." Shortly thereafter, a discharge of the Third Mortgage was recorded in the Registry at Book 32046, Page 229.

7. By agreement dated February 3, 2003 and recorded in the Registry at Book 42030, Page 454 (the "Sales Agreement"), Vincent, Gerald, John, Joseph, Rosemary, Bernadette, and Antoinette mutually agreed, in Paragraph 1 thereof, that, in the event of a sale of the Partition Property, the proceeds of such sale would be split evenly amongst themselves. [Note 9] The Sales Agreement further provides, in Paragraph 6, that "in the event, and if/when the premises gets sold, all of the surviving beneficial interest holders [a term defined therein] will need to be in agreement for the sale of the premises." [Note 10] The Sales Agreement defines the "beneficial interest holders" as being, at that time, Vincent, Gerald, John, and Joseph (the "Sales Agreement Beneficiaries"). It further specifically provides also that it "does not alter, supersede, delete or take the place of the [Declaration of Trust]." Additionally, like the Declaration of Trust itself, the Sales Agreement allows for the possibility that outside parties could succeed to the Sales Agreement Beneficiaries' interests under the Sales Agreement. [Note 11]

8. On August 14, 2014, Gerald filed a Petition with the Middlesex County Probate and Family Court (Case No. MI14P4207EA) (the "Probate Action"), seeking to have Vincent removed as trustee of the Trust and replaced by John, and raising objections to Vincent having entered into the Fourth Mortgage in 2000.

9. By document dated March 20, 2015 (the "Probate Settlement"), Vincent and Gerald agreed, among other things, that "Vincent [is] to step down as trustee on March 31, 2015" and "[t]he court shall appoint attorney James Long as the new trustee of that time." [Note 12]

10. Four days after the date of the Probate Settlement, by notice dated March 24, 2015 and recorded in the Registry at Book 65111, Page 25 (the "Notice of Termination"), Vincent, acting as one of the Trust Beneficiaries, terminated the Trust in accordance with Section 6(B) of the Declaration of Trust, which, as noted, permitted any one or more of the beneficiaries thereof to unilaterally terminate the Trust by giving notice of such termination to the trustee(s) of the Trust and recording a notice of such termination in the Registry. In accordance with Section 3(B) of the Declaration of Trust, title to the Partition Property thereby immediately vested in the Trust Beneficiaries (i.e., Vincent, Gerald, John, and Joseph).

11. On April 28, 2016, John, Antoinette, Joseph, Rosemary, Bernadette, and Gerald commenced the Prior Partition Action. As in this case, Vincent was the only party opposing such partition.

12. On June 26, 2015, the parties to the Prior Partition Action filed a document entitled "Settlement and Release Agreement" dated June 24, 2015 (the "Partition Settlement"). [Note 13] In it, the parties thereto agreed, inter alia, that all seven of the Pacelli siblings "are valid beneficiaries of [the Trust] and, as such, each listed individual holds a one-seventh (1/7) ownership interest in the [Partition Property]." [Note 14] The Partition Settlement further contemplated that the Partition Property would be appraised and sold, with each of the Pacelli siblings receiving a one-seventh share of the net proceeds of such sale, with Vincent's share to be reduced by $100,000.00 "in order to repay the [Fourth Mortgage]". The parties further agreed that "upon full satisfaction of the above terms, no criminal charges will be pursued against [Vincent] for the [Fourth Mortgage]." [Note 15] On October 13, 2015, the parties filed a stipulation of dismissal of the Prior Partition Action without prejudice.

13. On January 15, 2016, Gerald (individually) brought this case, seeking to partition the Partition Property by sale, with the proceeds distributed equally to all seven Pacelli siblings. [Note 16] Gerald, John, Joseph, Rosemary, Bernadette, and Antoinette all consent to the partition and sale of the Partition Property. Vincent is the sole party who objects to the partition and does not agree to the sale (for reasons he has not stated). He thus now seeks to exercise his rights under Paragraph 6 of the Sales Agreement to veto such sale and prevent the partition.

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Summary judgment is appropriate where there are no genuine issues of material fact in dispute and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm'r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c). When summary judgment is sought by a party opposing the relief sought in the case, the moving party need only demonstrate a lack of evidence needed to support an essential element of a non-moving party's case. Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706 , 715 (1991). Once that occurs, the burden falls to the non-moving party to "set forth specific facts showing that there is a genuine issue at trial." Mass. R. Civ. P. 56(e).

As noted above, Gerald filed this case seeking to partition the Partition Property pursuant to G.L. c. 241, § 1. Under that section, "[a]ny person, except a tenant by the entirety, owning a present undivided legal estate in land, not subject to redemption, shall be entitled to have partition in the manner hereinafter provided." G.L. c. 241, § 1. Vincent opposes such partition, [Note 17] claiming that Paragraph 6 of the Sales Agreement requires unanimous consent of the beneficial interest holders thereof, and thus allows him to veto any attempt by Gerald to partition the Partition Property -- in effect overriding G.L. c. 241, § 1. [Note 18]

As a threshold matter, Gerald argues that the Sales Agreement lacks the requisite consideration to make it a binding, enforceable contract, and that he entered into it simply out of love for his sisters. [Note 19] On this point, the Sales Agreement offers little help, providing only that the Sales Agreement Beneficiaries "desire that their three sisters benefit equally from any cash disbursement. . . if/when the premises is sold . . . ." Vincent argues that there was valid consideration for the Sales Agreement, since, he claims, Rosemary, Antoinette, and Bernadette each acquired a 1/7 interest in the Partition Property in exchange for granting the Sales Agreement Beneficiaries, in effect, a right to veto any sale of the Partition Property. Thus, the Sales Agreement Beneficiaries each accepted a reduction (from 1/4 to 1/7) of their interests in the Partition Property in exchange for such veto rights.

Notably, at the time the parties entered into the Sales Agreement, the Declaration of Trust was still in effect, so Vincent, Joseph, John, and Gerald, in their capacities as the Trust Beneficiaries, already possessed veto power over any sale of the Partition Property pursuant to Paragraph 4B of the Declaration of Trust. However, that power expired upon the termination of the Trust, which subsequently occurred. Thus, in exchange for granting Rosemary, Antoinette, and Bernadette rights in the proceeds of the sale of the Partition Property, Vincent, Joseph, John, and Gerald acquired veto rights that they could exercise (as Sales Agreement Beneficiaries) irrespective of whether the Trust was in effect. As such, it appears that there was valid consideration for the Sales Agreement.

I thus turn to consider Gerald's principal argument: that the provision of the Sales Agreement requiring unanimous consent of the Sales Agreement Beneficiaries constitutes an unreasonable restriction upon the free alienation of property. In general, public policy strongly disfavors restraints on the alienability of property. Fisher v. Fisher, 23 Mass. App. Ct. 205 (1986); Bowen v. Campbell, 344 Mass. 24 (1962). However:

Reasonable restraints on alienation may be enforced. The following factors, if found, tend to support a conclusion that the restraint is reasonable: 1. the one imposing the restraint has some interest in land which he is seeking to protect by the enforcement of the restraint; 2. the restraint is limited in duration; 3. the enforcement of the restraint accomplishes a worthwhile purpose; 4 the type of conveyances prohibited are ones not likely to be employed to any substantial degree by the one restrained; 5. the number of persons to whom alienation is prohibited is small . . . .

Franklin v. Spadafora, 388 Mass. 764 , 766 (1983) (quotation and citation omitted). Thus, case law has carved out a limited exception to the statutorily-protected right of partition: "a tenant in common may bind himself by agreement from asserting any right to partition, and [ ] such an agreement if extending for only a reasonable time is not contrary to public policy and operates by way of waiver or estoppel to prevent the maintenance of partition proceedings." Roberts v. Jones, 307 Mass. 504 , 506 (1940).

The Roberts court sought to determine whether an agreement entered into by co-owners of property created an undue restraint on the free alienation of property. The petitioner in Roberts had sought a partition of that property, to which the respondent objected, claiming that the agreement between the parties acted as a bar to the petitioner exercising her right of partition. [Note 20] However, the court found, "[t]he agreement fixes no time for its duration . . . [and] not only purports to bind the parties while they remain coowners but it may extend to successive purchasers of the interest of each of the parties." Id. at 507. Under such circumstances, the court found that the agreement at issue effected an undue restraint on the alienability of property, holding as follows:

If [the non-selling owner] accepted the [third-party] purchaser [rather than purchasing the selling owner's share, such third-party purchaser] became bound by the terms of the agreement in selling his share. The party not desiring to sell can thus extend the agreement to successive purchasers. The alienation of the property may be restricted over a long period of years. As a practical matter, the situation is not much different from what it would have been if the agreement expressly provided that there could be no sale without the consent of all tenants in common. The agreement unduly restricts the alienation of the property for an unreasonable length of time. Accordingly, it does not come within the general rule that an agreement postponing partition for a reasonable time will bar partition, and as the operation of the agreement may result in restricting the alienation of the property for years, contingent in substance upon a sale being made with the consent of both parties, the agreement imposing such a restraint upon the alienation of an estate in fee simple for a period beyond that fixed by the rule against perpetuities is contrary to public policy and cannot be enforced.

Id. at 507-508.

In support of his claim of enforceability, Vincent cites the case of Rocco v. Martignetti, 33 LCR 97 , 99 (Mass. Land Ct. Mar. 4, 2014), which offers an example where the Land Court (Scheier, J.) upheld an agreement not to seek a partition. The factual background in Rocco, however, is significantly different than that presented here. In Rocco, the parties had entered into an agreement not to partition property that they jointly owned in connection with their settlement of a prior partition proceeding involving another former interest holder, with the specific motivationofavoiding another future partition proceeding. To that end, the agreement was "replete with language that sets the context for the parties' concern that [they] would be able to remain in their homes without fear of a partition action causing a sale and subsequent possible eviction." Id. Moreover, the court, noting that the parties to the agreement in question were of advanced age when they entered into it, found that "[t]he age of the parties at the time of the agreement is one factor in the determination of reasonableness." Id. [Note 21] Further, unlike in Roberts, the agreement at issue in Rocco specifically provided that the right to prevent a partition ceased upon the death of the parties themselves, and thus could not be passed on to any subsequent transferee.

In sum, Roberts and Rocco, read together, stand for the proposition that agreements not to seek a partition of property are "not contrary to public policy", Roberts, 307 Mass. at 506, but only if the specific circumstances surrounding such agreements are such that the restriction placed on the free alienability of property "extends for only a reasonable time", Rocco, 22 LCR at 99. Here, however (as was the case in Roberts), the Sales Agreement does not contain any language whatsoever purporting to limit temporally the time in which the veto rights acquired by the Sales Agreement Beneficiaries could be exercised. Rather, such rights are limited only in terms of who is permitted to exercise them. On this point, Vincent argues that "when one reads the [Sales] Agreement as a whole, it is apparent that such control does not last forever" because, he claims, the language of the Sales Agreement ("if/when the premises gets [sic] sold") implies an intent to sell the Partition Property (at some point). Further, Vincent claims, "the right of a brother to object to the sale of the Property terminates with that brother's death" insofar as it requires only the consent of "all of the surviving beneficial interest holders" for such a sale.

This argument, however, is unavailing because, on its face, the Sales Agreement does not specify that the "surviving beneficial interest holders" refers only to Vincent, Joseph, John, and Gerald. Rather, as noted, the Sales Agreement specifically permits third parties to succeed Vincent, Joseph, John, or Gerald as the Sales Agreement Beneficiaries without any restriction or requirement for approval of such a succession, in which case such successors in interest would be bound by the terms of the Sales Agreement. [Note 22] Contrast Rocco, 33 LCR at 99 (noting that the veto power expired upon the death of the parties themselves, without possibility of succession).

As such, nothing on the face of the Sales Agreement would prevent Vincent, Joseph, John, and Gerald (in their capacities as the Sales Agreement Beneficiaries) from designating another person as their successor in that role -- nor for any such successor to, in turn, appoint further successors ad infinitum -- in which case that party's veto power would be exercisable at any time during the life of any such future successor. Thus, the Sales Agreement countenances the possibility that the Sales Agreement Beneficiaries' veto rights could be exercised not only by Vincent, Joseph, John, and/or Gerald during the time of their lives, but also by any future successor to their respective rights and interests as Sales Agreement Beneficiaries. This is a textbook example of a perpetuity. [Note 23]

As was the case in Roberts, the restriction in the Sales Agreement that Vincent, in his capacity as one of the Sales Agreement Beneficiaries, now seeks to enforce has the potential to effect a perpetual restriction on the alienation of the Partition Property. Accordingly, "it does not come within the general rule that an agreement postponing partition for a reasonable time will bar partition . . . [since] the operation of the agreement may result in restricting the alienation of the property for years . . . ." Roberts, 307 Mass. at 507. Rather, because it would permit a restriction on property for a period "beyond that fixed by the rule against perpetuities [it] is contrary to public policy and cannot be enforced." Id. at 508.

In addition to running afoul of the concerns articulated in Roberts as to temporal limitations, none of the factual considerations cited in Rocco in support of enforcement is present here. As discussed above, in Rocco, the agreement in question was created bythe parties thereto in connection with their resolution of a prior partition proceeding involving another former interest holder, and was specifically designed to avoid a future partition proceeding. The reason for this was that the parties were of advanced age, and thus desired to ensure that they could remain living at the property for the remainder of their natural lives without fear or risk of being forced to vacate the property in the event one of their co-owners sought a partition. Here, however, there was no prior partition proceeding, nor any indication of a desire to forestall a future partition proceeding, nor does the Sales Agreement express any intent to shield the parties from the possibility of eviction. [Note 24] Indeed, the Sales Agreement contains no indication whatsoever as to why the veto rights were created. Rather, they appear to have been motivated by a general desire to enable Vincent, Joseph, John, and Gerald, as the Sales Agreement Beneficiaries, to retain the ability to control the disposition of the Partition Property after granting interests in said property to their non-beneficiary sisters and after the termination of the Trust. As such, none of the equitable factors cited in Rocco appears to be present here.

In sum, because it is not reasonably limited in time, and because no other equitable factor supports enforceability, public policy concerns mandate the conclusion that the restriction in the Sales Agreement is unenforceable as an undue restriction on the free alienation of property. [Note 25]

Conclusion

Based upon the foregoing discussion, it is the determination of this court that Paragraph 6 of the Sales Agreement (stating that "in the event, and if/when the premises gets sold, all of the surviving beneficial interest holders will need to be in agreement for the sale of the premises") is VOID as an unreasonable restraint on the free alienability of property. In all other respects, the Sales Agreement appears to be valid and enforceable. [Note 26] Vincent is thus not entitled to rely on Paragraph 6 of the Sales Agreement to prevent the partition of the Partition Property and/or to veto the sale thereof. Vincent's motion for summary judgment is therefore DENIED in all respects.

The Commissioner is hereby instructed to proceed with the partition by sale of the Partition Property forthwith in accordance with Paragraph 1 of the Sales Agreement, which provides that each of the seven Pacelli siblings are entitled to a one-seventh share of the proceeds of the sale of the Partition Property. [Note 27] The parties shall attend a status conference on November 8, 2016 at 11:30 A.M. to discuss how to proceed in this case.

Judgment shall enter after all matters in this case are resolved.