MISC 16-000723

December 19, 2018

Suffolk, ss.




This is a partition action. When it was filed, the owners of the property at issue, 20-22 Sedgewick Street in Boston, were plaintiff John Sze and his brothers, defendants Paul and Peter Sze, as "joint owner[s], with right of survivorship." Peter has since died. Had all three lived, the partition (here by sale, with subsequent division of the net sale proceeds) would have been 1/3, 1/3, 1/3, subject to G.L. c. 241, §23 adjustments, G.L. c. 241, §25 accounting, and G.L. c. 241, §22 costs. Peter's death, however, raises the following question. Is the division now 1/2 John and 1/2 Paul as Peter's survivors, or have the partition proceedings ended the joint tenancy (and, if so, when), converting it to a tenancy in common where John, Paul, and Peter's estate each get 1/3? For the reasons set forth below, I find and rule that the "survivorship" rights remain, resulting in a 1/2, 1/2 split between John and Paul.


I begin with the basics.

First, the ownership structure at issue was created as a joint tenancy with right of survivorship, knowing and intending that the survivor(s) would get the deceased(s)' interests. To say that that result "deprive[s] … Peter's heirs of Peter's interest in the Property" [Note 1] misses the point. The intention that survivors receive the deceased(s)' interests is clearly expressed by the nature of the tenancy, and Peter himself, one of the grantors in the deed that created it, joined in that intent. [Note 2] See West v. First Agr. Bank, 382 Mass. 534 , 536 n. 4 (1981) (joint tenant has right to remainder if he survives the other).

Second, joint tenants have a right to partition. See G.L. c. 241, §1 ("Any person, except a tenant by the entirety, owning a present undivided legal estate in land, not subject to redemption, [Note 3] shall be entitled to have partition in the manner hereinafter provided.").

Third, a joint tenancy is "destroyed" by partition. See West, 382 Mass. at 536 n. 4.

Fourth, "[t]he mere institution by a joint tenant of partition proceedings does not work a severance of the tenancy." Minehan v. Minehan, 336 Mass. 668 , 671 (1958) (internal citations omitted). The tenancy continues until a subsequent point and, until that time, the survivorship rights remain. See id.

The question thus becomes this. When, precisely, is that subsequent point when the partition formally destroys the joint tenancy? The defendants argue that that point is the date of the interlocutory decree ordering partition and, in their view, that decree was this court's September 22, 2017 Memorandum and Order denying their motion for appointment of a commissioner to determine the "set-off" value of the property and allowing them to purchase John's interest at that price, and declaring instead that a commissioner would be appointed to sell the property on the open market. [Note 4] In their view, at that moment, the parties' right to equal division (1/3, 1/3, 1/3) was effectively "locked in" and was not changed by Peter's subsequent death. I disagree.

West states that joint tenancies are "destroyed" by partition. 382 Mass. at 536 n. 4. But, as noted above, it does not explicitly say when that destruction takes place. Minnehan makes plain that "the mere institution by a joint tenant of partition proceedings does not work a severance of the tenancy." 336 Mass. at 671 (emphasis added, internal citations omitted). The tenancy thus remains joint until the time the property is actually conveyed (a general principle of property law), [Note 5] unless it had been declared to be a different type of title in the interlocutory order previously entered in the case [Note 6] and that order had not timely been appealed, making that declaration final. Here, the interlocutory order was the Interim Order Appointing Donna Turley, Esquire Partition Commissioner for the Property Commonly Known as 20-22 Sedgwick Street, Boston, MA (Nov. 13, 2017), which declared that the property was owned by the parties as "joint tenants with rights of survivorship." Interim Order at 2. No timely appeal was taken from that declaration even though Peter had died on October 28, 2017, two weeks before the Interim Order was entered and the issue was thus ripe. The first time the issue was raised was in Plaintiff's Motion for Further Orders, which was not filed until Dec. 22, 2017 — long past the 30-day appeal period even if the motion was considered a notice of appeal. The joint tenancy finding could still be vacated, to be sure, see G.L. 215, §35 ("A warrant or commission…for the partition of land…may be revoked by the court for sufficient cause, and a new commission may be issued or other appropriate proceedings taken"), but I do not find "sufficient cause" to do so. Indeed, quite the contrary. The grantors of the deed that created the joint tenancy — including Peter himself, the party whose widow and children will now not receive a share of the sale proceeds — did so intentionally, knowing its consequences.


For the foregoing reasons, the tenancy between the parties was, and remains, joint. At present, unless one of the remaining joint tenants dies between now and the time the property is sold, the division of the net sale proceeds, after the adjustments referenced above, will be 50-50 between the surviving joint tenants, John and Paul. Wilder does not hold otherwise. All it holds is that the interlocutory order makes its finding of ownership and title final and conclusive unless immediately appealed. It did not sever a joint tenancy. Rather, it found the title to be a tenancy in common. Here, my interlocutory order declared the tenancy to be joint, and joint it remains.



[Note 1] Defendants' Further Briefing on Joint Tenancy at 1 (Feb. 22, 2018).

[Note 2] The deed by which Paul, John and Peter acquired their joint tenancy with right of survivorship came from Paul, John, Peter and Shel Sel (Dec. 21, 1992).

[Note 3] Estates in land that are subject to redemption include mortgages and municipal tax takings. Thus, neither a mortgagee nor a municipality that has taken tax title to a property have a right to its partition until the right of redemption has been foreclosed.

[Note 4] The defendants' G.L. c. 231, §118 single justice petition seeking reversal of that denial was denied by the single justice (Rubin, J.) on Oct. 27, 2017.

[Note 5] See Attorney Gen'l v. Clark, 222 Mass. 191 , 293 (1915) ("A joint tenant, as an incident of his tenure, always may terminate the joint tenancy by transfer or conveyance of his interest."). See generally Alperin, 14C Mass. Practice, Summary of Basic Law (5th Ed.) §14.28 at 713-714 (Joint tenancy: Severance).

[Note 6] There are effectively two final judgments in partition cases, addressing different phases of partition.

The first is the "interlocutory order" entered early in the case, which declares the ownership and title to the property and the consequent right to partition. It is immediately appealable and, if not immediately appealed in timely fashion, is final and binding on the parties on the ownership and title issues. See Wilder v. Steeves, 1 Mass. App. Ct. 822 , 823 (1973) (rescript) (unappealed interlocutory decree appointing commissioner and ordering partition by sale of land owned, according to the decree, as tenants in common, held to have "conclusively determined the rights of the parties; and following its entry no question remained open concerning either ownership or title," citing Brown v. Bulkley, 11 Cush. [65 Mass.] 168, 169-170 (1853); Savery v. Taylor, 102 Mass. 509 , 511 (1869); the court thus denied the parties' subsequent petition to change that finding to one of joint tenancy and, in consequence, enjoin the partition sale, even though the parties agreed that the tenancy had been joint). See also Morgan v. Jozus, 67 Mass. App. Ct. 17 , 20 (2006) (interlocutory order is "final by its nature" and, if not immediately appealed, "constitutes a conclusive determination."). The policy reason for this is obvious. Partition is an involved process with significant expense (e.g., the commissioner's fees, which can be considerable) and irrevocable consequences (sale to a third party), and the pendency of the partition question (reflected by recorded notice at the Registry of Deeds, see G.L. c. 241, §7) is a "cloud on title" much like a memorandum of lis pendens. Just as a lis pendens is immediately appealable because of the "cloud" it creates, see G.L. c. 184, §15(d), so too is the interlocutory order determining ownership and title and directing partition to occur on that basis. If a right to partition does not exist (if, for example, the property is held in partnership or in trust), this needs to be known before those expenses and conveyance occur, and the third-party purchaser of land partitioned by sale needs to be able to rely on certainty of title. Any uncertainty produces either a lower sale price or results in no sale at all, defeating the purpose of partition. Immediate appealability, conclusive thereafter as to title and ownership, solves this problem.

The second judgment in partition cases, which adjudicates the division of the net sale proceeds after determination of costs, G.L. c. 241, §22, appropriate adjustments for disproportionate contributions towards necessary property-related maintenance or physical improvements that added to market value, G.L. c. 241, §23, and other accounting matters, G.L. c. 241, §25 (e.g., "rent" owned to an ousted a co-tenant, see Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct. 64 , 69 (1983)), occurs at the conclusion of the case. Once the ownership and title questions have been conclusively determined in the interlocutory order and partition has proceeded on that basis, these are the matters that "remain[] to be done…to carry it [the partition] into effect." Brown, 11 Cush. [65 Mass.) at 169.