MISC 16-000222

December 14, 2016

Suffolk, ss.



Harvey B. Haefitz, a/k/a Harvey B. Heafitz (Haefitz), filed this partition action under G.L. c. 241 on April 25, 2016. Defendant Patrick J. Sullivan filed Defendant’s Motion to Dismiss on June 8, 2016. At the case management conference held that day, the parties agreed to try to settle this matter, and the court stayed consideration of the Motion to Dismiss. The parties ultimately reported that settlement appeared unlikely, and the court set a briefing schedule. The Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss (Opp.) was filed on October 19, 2016. Defendant’s Motion to Dismiss was heard on November 9, 2016, and taken under advisement.

The court treats Defendant’s Motion to Dismiss as brought under Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. In considering a motion to dismiss for failure to state a claim, the court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept “legal conclusions cast in the form of factual allegations.” Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000). Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Applying this standard, for the reasons set forth below, the Motion to Dismiss is allowed.

This partition action seeks partition of the property at 56 Chestnut Hill Avenue, Brighton (property). Haefitz’s petition for partition recites that Sullivan and he each hold a 50% undivided interest in the property as tenants in common, with Citizens Bank of Massachusetts as mortgagee. Title to the property is actually held by Haefitz and Sullivan as Trustees of RMV Nominee Trust, u/d/t dated October 15, 1996 and recorded in the Suffolk Registry of Deeds (registry) at Book 20934, Page 158 (Trust), conveyed to the Trust by McGarr Service Corp. by a deed dated October 15, 1996 and recorded in the registry at Book 20934, Page 165. It is therefore simply not correct that Haefitz and Sullivan own the property as tenants in common. They may be beneficiaries of the Trust, but it is the Trust that owns the property.

Because the property is owned by the Trust, Haefitz cannot bring a petition for partition. Only those owning a “present undivided legal estate in land” are entitled to bring an action to partition real estate under. G.L. c. 241, § 1. This requirement excludes trust property from the partition statute. See Rolland v. Hamilton, 314 Mass. 56 , 60 (1943) (“Only a legal estate is the subject of partition. . . and if there is a trust this proceeding cannot be maintained.”); Devine v. Deckrow, 299 Mass. 28 , 33 (1937); Liporto v. Liporto, 20 LCR 578 , 580 (2012) (stating that property owned by trust is not subject to partition); Dowd v. Stebbins, 17 LCR 431 , 436 (2009) (“Trust property is not subject to partition.”); Buell v. Rubin, 13 LCR 558 , 559 (2005) (same). Haefitz argues that because the Trust is a nominee trust, not a classic fiduciary trust, its form should be ignored and the court should recognize that the true owners are Haefitz and Sullivan, the beneficiaries. Haefitz points out that nominee trusts like the Trust “are a common device for holding title to real estate in Massachusetts and one which affords certain tax advantages to the beneficiaries.” Opp. at 3. While this may be true, it does not justify disregarding the Trust for the purposes of this partition action. Indeed, it requires that the Trust form be honored. The tax and other advantages that accrue to a nominee trust are possible because of the trust form. The beneficiaries who take advantage of this form for tax purposes are not free to disregard the same form when it suits them. The property is owned by the Trust, not by Haefitz and Sullivan as tenants in common. They have no recourse to a partition action to resolve their disputes over ownership. Their recourse, if any, is whatever is provided in the declaration of trust for the Trust.


For the foregoing reasons, the Defendant’s Motion to Dismiss is ALLOWED. Judgment shall enter dismissing this action without prejudice.