WARAPHONG DUANGPRATHEEP and NUSRA DUANGPRATHEEP v. HELEN B. CALNAN, et. al.

In May 2017, Waraphong and Nusra Duangpratheep petitioned this Court for partition of a 3200-square-foot lot at 0 Hingham Avenue in Weymouth, MA. 0 Hingham Avenue is described in a recorded 1903 deed to Martin J. Scully. The Duangpratheeps and the respondents to their petition -- all 47 of them -- are or could be the heirs or devisees of, or other successors in interest to, the late Mr. Scully.

The right of a person "owning a present undivided legal estate in land, not subject to redemption," to obtain partition of that land, G.L. c. 241, § 1, dates to colonial times. See St. 1693, c. 8. The current partition statutes, collected in c. 241 of the General Laws, still contain a presumption that partition should result in a physical division of land. See Delta Materials Corp. v. Bagdon, 33 Mass. App. Ct. 333 , 337 (1992). That's not going to happen here. 0 Hingham Avenue is in a district zoned for residences. The lot is a square relict of land once set aside for a road. The lot's now surrounded by occupied residential properties. It has no apparent access to a private way or public street. Even if it enjoyed access, the lot's too small under local zoning laws for anyone to build a separate house upon it. There's also no suggestion that 0 Hingham Avenue lies in a special location, or affords one access to rare or unusual resources. Splintering such a lot benefits no one.

But 0 Hingham Avenue has value, particularly to the Duangpratheeps. 0 Hingham Avenue abuts 51 Hingham Avenue. The Duangpratheeps have owned 51 Hingham Avenue exclusively (they don't share it with anyone else) since 2012. They've fenced in 0 Hingham Avenue, making it from all appearances part of 51 Hingham Avenue's backyard. That's one way to obtain title, but it requires twenty years of patience. See Ryan v. Stavros, 348 Mass. 251 (1964). The Duangpratheeps see within the partition statute a means by which they can more speedily obtain title to the whole of 0 Hingham Avenue free and clear of its other owners.

So what have the Duangpratheeps done, and do they now deserve title to 0 Hingham Avenue? They first acquired interests in the property – by the time they came to this Court, they had obtained a 25.65789% share of the property. They next filed a petition for partition under c. 241, §§ 1 and 6. They presented that petition to the Land Court, one of two authorized venues for partition actions, see id. at § 2, but publicly available docket information suggests that these days persons vastly prefer the Land Court for such cases. The Duangpratheeps amended their petition twice, eventually naming 47 co-owners. They filed notice of their action with the appropriate registry of deeds in accordance with id. at § 7. Over seven months, they served all of the co-owners in accordance with id. at § 8, with a little help from a guardian appointed (as id. at § 9 requires) to locate one hard-to-reach owner. (They did not publish notice of the proceeding in the manner described in id. at § 8. Their position is that, having served everyone whom their research reveals to be the co-owners, publishing notice isn't necessary. If the Duangpratheeps are willing to take title subject to the possibility that unnoticed strangers might appear – a risk that's present regardless of whether notice has been published -- then so be it. Chapter 241 provides sufficient remedies. See id. at §§ 18-21.)

After having received service of process, 39 of the co-owners, collectively holding 55.26318% of the interests in 0 Hingham Avenue (the "Defaulted Owners"), failed to file anything with the Court. The Court defaulted them. Eight co-owners, holding collectively 19.07893% of the 0 Hingham Avenue interests, did appear (the "Appearing Owners"), and they participated for a while in the proceedings. During that period, the Court determined that the Duangpratheeps owned interests in 0 Hingham Avenue, and for that reason held that they were entitled to partition. The Court thus appointed in November 2017 a "disinterested commissioner," in accordance with id. at § 12, and ordered her to advise what should be done.

As the Commissioner was preparing her recommendations, the Duangpratheeps announced they were exploring another resolution of the case. The Commissioner's first report to the Court, filed in January 2018, thus suggested only that the Court keep 0 Hingham Avenue intact. The outlines of the Duangpratheeps' proposal became evident in March 2018. They first reported that the Appearing Parties had agreed to sell to the Duangpratheeps the Appearing Parties' interests in 0 Hingham Avenue. That purchase brought the Duangpratheeps' share of 0 Hingham Avenue to 44.73682%. The Duangpratheeps then offered to purchase the Defaulted Owners' interests for what the Duangpratheeps claimed was $30,000.

To test the Duangpratheeps' offer, in April 2018 the Commissioner notified 0 Hingham Avenue's three other abutters (the only persons whom the Commissioner thought would have any use for the property) that she had received a $30,000 bid to buy the Defaulted Owners' shares. The Commissioner invited the abutters to make a higher bid. None did. The Commissioner also was aware of a third-party appraisal of the property, submitted when the Duangpratheeps petitioned for partition, that valued it at only $1,792. The Duangpratheeps also had told her in January 2018 (while they were negotiating to buy the stakes of the Appearing Owners) that they were "willing to work with" an assumed property value of $4,900. That worked out to $2,707.90 for the Defaulted Owners' 55.26318% share of the property. So the Commissioner's information led her to believe that $30,000 for the Defaulted Owners' share – eleven times its value – was a really good deal.

But the devil was in the details. By March 2018, the Duangpratheeps had incurred $20,918.40 in fees and expenses prosecuting their petition for partition. They projected they might have to spend $2,750 more to conclude the case. They also had agreed early on to bear the Commissioner's fees and expenses. By March 2018, the latter totaled $4,560, with an estimated $1,500 to go. Add those amounts and the result is $29,728, or $30,000 in round numbers. The Duangpratheeps also thought that they'd be entitled under c. 241, § 22 to obtain payment of all of those expenses "out of the sale proceeds. . . ." They expected the Court to hold that the "sale proceeds" in this case are $30,000. So what the Duangpratheeps really offered in March 2018 was a trade of their expected reimbursement of their total investment in the partition proceedings for the Defaulted Owners' interests in 0 Hingham Avenue -- the Defaulted Owners receiving, at the end of the day, nothing, but also being relieved from any responsibility to pay any partition-related costs.

Do the partition statutes allow that? Not in this case. If the court can't physically divide a co-owned property "advantageously," Delta Materials, 33 Mass. App. Ct. at 338, the statutes give the court only three tools for resolving the matter. (The court is free to use some or all of those tools, and is encouraged to revisit at any time the question of whether physical division might play a role after all. See id. at 339-340. And to the court's four options one should keep in mind a fifth: private settlement, followed by dismissal of the case. Many partition cases end that way.) The court may "set off to any one or more of the parties, with his or their consent," "the whole or any part" of the co-owned property "upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal." G.L. c. 241, § 14. The court also may order a public auction or "private sale" of "the whole or any part of the land," followed by a "distribut[ion of] the proceeds so as to make the partition just and equal." Id. at § 31.

What the Duangpratheeps had proposed was a § 14 set off. Section 14 governs the granting to a "party" in the partition action of "the whole or any part" of the co-owned property. One may not characterize the Duangpratheeps' proposal as calling for a § 31 sale: when § 31 speaks of a sale of "any part of the land," it "means a specific physical part, not any share or interest in an undivided fraction of the real estate." Jefferson v. Flynn, 348 Mass. 165 , 167 (1964).

Having proposed a § 14 setoff, the Duangpratheeps faced two consequences. The first is clear from § 14 itself: the Duangpratheeps needed to pay "to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal." (That payment's called an "owelty." See Delta Materials, 33 Mass. App. Ct. at 338, n. 7.) The Commissioner seemed ready in March 2018 to pencil in $30,000 as the owelty, payable to the Defaulted Owners. Chapter 241, §§ 15 and 34 are clear that the court may not confirm a partition that involves an award of money "to make the partition just and equal" until "the money has been paid or secured to the parties entitled thereto," even if that means depositing with the court the awards of owners who are difficult to locate.

The second consequence isn't as apparent from the partition statutes. It involves the expenses of the partition proceeding, something that the Duangthraheeps thought they could use as currency when buying out the Defaulted Owners. The chief statute that governs the expenses and charges of partition proceedings is id. at § 22. It provides (emphases added):

The reasonable expenses and charges of partition proceedings, including examination of title and preparation of a plan ordered by court under section seventeen, and the fees of counsel, of the commissioners, and of all agents, guardians and other persons appointed to represent interests in accordance with section nine, shall be determined by the court, and in the case of sale paid by the commissioners out of the proceeds; and in the case of partition by division shall be paid by the petitioner, who shall be entitled to contribution from the parties to whom shares of the land are set off who take a vested, and not contingent, interest. Such contribution shall be in proportion to the interests of the parties unless the court finds a different proportion more equitable. Costs also may be awarded under section forty-five of chapter two hundred and fifteen. Execution may issue for said contribution and costs.

Section 22 establishes two paths for payment of expenses incurred in partition proceedings. One, payment by the commissioners of all court-determined expenses "out of the proceeds," is available only "in the case of sale," meaning a § 31 sale. The other path applies to "partition by division." What does that phrase describe? It appears three other places in c. 241. It's in § 16 (which tells the commissioners what to do with a court-confirmed partition decree), § 18 (regarding the conclusiveness of partition), and § 23 (which addresses improvements to the common land). Like § 22, § 18 uses the phrase in contrast to a "partition . . . by sale," which suggests that there are only two types of partitions: those by sale, and those not by sale (the latter forming the category of "partition by division"). One sees a similar dichotomy in § 17, which allows the court to order various investigations for the "better division or sale" of the property.

So it appears that a "partition by division" likely means partitions other than by § 31 sale, which may be why Aiello v. Aiello, 63 Mass. App. Ct. 914 (2005) (rescript), comes out the way it does. Gerald Aiello petitioned the court for partition of a property co-owned by Gerald and his brothers Virgil and Robert. Virgil and Robert were "passion[ate]" for the property, and thus the court recommended that Virgil and Robert pay Gerald one-third of the property's appraised value to take him off the property's title and resolve the matter. Virgil and Robert accepted the court's recommendation. They paid Gerald for his interest in the property and the court awarded it to Virgil and Robert. But Gerald wasn't done: he moved for contribution under § 22 of his attorney's fees and expenses. The trial court denied his request, thinking that it had implicitly dealt with the parties' expense issues as part of the recommended setoff. The appeals court saw things differently. The court held that "there is little question" that, "[o]n the express terms of the statute," the trial court had effected a "partition by division." It was thus clear that Gerald (as the "petitioner") was "entitled to some contribution towards his fees" under § 22. Aiello, 63 Mass. App. Ct. at 915. The court further held that "two salient elements" of § 22 "are mandatory: first that the petitioner is entitled to take contribution . . . from the other parties who take a vested interest as a result of the partition, and second, that the contribution shall be in proportion to the respective interests of the parties. As to the latter proposition, the statute leaves room for the exercise of some discretion." Aiello, 63 Mass. App. Ct. at 915 (emphasis added).

So where would Aiello leave the Duangpratheeps and their $30,000 investment in partition-related expenses, if they followed through on buying the Defaulted Owners' interests for $30,000? Since they are the "petitioners" in this action, they (like Gerald Aiello) would have the right to apply under § 22 for contribution to their reasonable partition-related expenses. But their plan would run aground on the first of Aiello's mandatory "salient elements": § 22 would allow them to seek contribution only "from the parties to whom shares of the land are set off who take a vested, and not contingent, interest." Recall that the Duangpratheeps wanted 0 Hingham Avenue set off entirely to themselves. If the Court accepted their offer, the Duangpratheeps would have no contribution right against the Defaulted Owners. Their $30,000 investment in the proceeding thus would gain them nothing in terms of funding their proposed $30,000 owelty to the Defaulted Owners.

The Duangpratheeps understandably withdrew their $30,000 offer. The Court thus examined a potential set off to the Duangpratheeps in a more traditional fashion, by examining 0 Hingham Avenue's fair-market value. In doing so, the Court gave no consideration to 0 Hingham Avenue's unique value to the Duangpratheeps. See Delta Materials Corp. v. Bagdon, 59 Mass. App. Ct. 439 , 442-443 (2003). That brought the Court back to the January 2018 value of $4,900, or $2,707.90 for the Defaulted Owners' 55.26318% share of the property.

The Duangpratheeps expressed interest in paying an owelty of that amount, but requested the chance to prove their entitlement to a different credit, one arising under c. 241, § 23. That statute provides:

If the court . . . finds that one of the co-tenants has erected any buildings or made other permanent improvements on the common land, it may, if justice and equity so require, award such compensation as it deems proper for the value of such buildings or other improvements, not exceeding, however, the actual amount by which the market value of the common land has been increased thereby; and in awarding such compensation the court may deduct any benefit which the party claiming compensation has received from the common land. The court may make orders and decrees for the enforcement or protection of any such claim . . . .

The Duangpratheeps claim that between June 2012 and March 2014, they paid $5,784.68 to erect a fence in the back yard of 51 Hingham Avenue, which they extended along two of 0 Hingham Avenue's side lines. The Duangpratheeps ask the Court to treat 75% of their fence-related capital costs as an improvement to 0 Hingham Avenue.

Campari v. Pascale, 78 Mass. App. Ct. 840 , 846 (2011), teaches that in partition proceedings, the court should make a preliminary determination as to how the property should be divided, and then look at whether adjustments are appropriate. The Court has taken the first step:

0 Hingham Avenue is worth $4,900, and the Defaulted Owners' interests in that property are worth $2,707.90. Now to the question of whether the Duangpratheeps have established under § 23 a right to an adjustment of what they'd otherwise have to pay for the Defaulted Owners' interests. The Court finds that the Duangpratheeps have made a permanent improvement to the common land. See Stylianopoulos v. Stylianopoulos, 17 Mass. App. Ct. 64 , 67-68 (1983) (an "improvement" under § 23 is a "work of a capital, rather than a maintenance, nature"). The Court can't find, however, that the "value of such . . . improvements" (even assuming the Duangpratheeps correctly allocated to 0 Hingham Avenue 75% of their fence costs: there's nothing in the record that supports that figure) is less than "the actual amount by which the market value of the common land has been increased thereby." There's no evidence in the record that the Duangpratheeps' fence project increased 0 Hingham Avenue's value one bit. Their third-party appraiser – who provided a report "based on a physical analysis of the site and improvements" – didn't ascribe any value to the fence.

There's a second problem with the Duangpratheeps' § 23 request. While one decision suggests that § 23's language concerning a deduction for "any benefit which the party claiming compensation has received for the common land" is confined to rents, which are to be deducted from an occupying-tenant's § 23-recoverable improvements only if "the occupying tenant has agreed to pay rent or has ousted the other tenant or tenants from the property in question," Stylianopoulos, 17 Mass. App. Ct. at 66-67, several facts suggest that the Duangpratheeps' fence is an improvement to 51 Hingham Avenue, and not 0 Hingham Avenue. First, they built the fence on only two sides of 0 Hingham Avenue. It's entirely open on the side that abuts 51 Hingham Avenue. Second, the fence effectively enlarged 51 Hingham Avenue's yard, and it shields 51 Hingham Avenue from abutting properties. Third, the fence is a very nice one. Its expense is understandable if its objective is to provide an amenity to the back yard of an occupied residential property in a nice neighborhood (an apt description of 51 Hingham Avenue), but it's excessive for the more limited range of benefits a fence provides to a vacant lot like 0 Hingham Avenue (laying out the property's boundaries, or deterring trespassers).

The Court thus DENIES the Duangpratheeps' request for an order compensating them for any expenses relating to their fencing of 0 Hingham Avenue. The Court thus DETERMINES that the whole of 0 Hingham Avenue may be set off to one or both of the Duangpratheeps, if he, she or they should consent, upon payment by the consenting parties to the Defaulted Owners of $2,707.90. The Court ORDERS the Duangpratheeps to file within seven days of receipt of this Order a notice stating whether he, she or they consent to these terms.

SO ORDERED.