SUSAN L. SCANGAS, Plaintiff, v. DIANNE C. CORMIER, Defendant

The court issues this Revised Order on Commissioner's Motion for Instructions to correct certain scrivener's errors in the original Order on Commissioner's Motion for Instructions issued November 3, 2020.

Plaintiff Susan L. Scangas filed her petition for partition on June 7, 2019. Ms. Scangas and respondent Dianne C. Cormier each hold a 50% undivided interest in the property at 8 Sorensen Court, Arlington, Massachusetts (property). On January 21, 2020, the court allowed Ms. Scangas's Motion to Appoint Commissioner to Sell Real Estate and issued its Interim Order Appointing Lawrence F. Army, Esquire as Partition Commissioner (Interim Order). After various motions and delays resulting from the COVID-19 pandemic, the court issued its Warrant for the sale of the property on September 17, 2020. In the meantime, Ms. Cormier has represented that she is seeking financing to enable her to buy out Ms. Scangas's interest in the property, including seeking financing under a first-time homeowners' program sponsored by the Boston Housing Authority (BHA).

On September 30, 2020, the Commissioner filed his Motion for Instructions. The Commissioner reported that he had accepted an offer for the sale of the property for $730,000, with execution of a purchase and sale agreement contingent on the approval of the court. Ms. Scangas filed her Motion in Support of Commissioner' Motion for Instructions on October 2, 2020. The hearing on the Motion for Instructions was continued to October 21, 2020, both because the Warrant provided that no purchase and sale agreement would be entered before that date and because Ms. Cormier requested an accommodation for additional time to respond. Ms. Cormier filed a Notice of Appeal on October 16, 2020. Ms. Scangas filed her Supplemental Motion in Support of Commissioner's Motion for Instructions on October 19, 2020. On October 20, 2020, Ms. Cormier filed her Response to Commissioner's Request for Instructions to Sell House. That same day, she also filed a motion for stay with the Appeals Court, and the Appeals Court stayed appellate proceedings pending the outcome of the hearing. The hearing was held on October 21, 2020, and the Commissioner's Motion for Instructions was taken under advisement. After the hearing, Ms. Cormier filed two emails with the court on October 22, 2020, and on October 30, 2020, she filed her Response to Plaintiff's Supplemental Motion, a copy of the Appeals Court cover sheet in her petition for a stay, and a copy of the Appeals Court status report.

Ms. Cormier objects to the Motion for Instructions and any sale of the property for two primary reasons. First, she argues that the marketing and sale of the property was unreasonable. She objects to the proposed buyer on the grounds that the buyer is not really seeking to purchase the property for her own use but only as an investment. Even assuming that is true, it has not affected the sales price. The Commissioner has shown that he and the real estate broker have found a buyer for a price within the range designated by the Warrant who, in their reasonable judgment, is likely to be able to close. The proposed sale to this buyer is reasonable.

Second, Ms. Cormier maintains that she has not had sufficient time to ascertain whether she will be able to buy out the 50% interest of Ms. Scangas. In particular, Ms. Cormier had applied to the BHA for financing under a first-time homebuyers' program that would have allowed her to borrow an amount sufficient to buy out Ms. Scangas's 50% interest. That application was denied on January 20, 2020, and Ms. Cormier has filed an administrative appeal. She states that the appeal has been delayed due to a variety of factors, including the pandemic, her health concerns, and questions for the Department of Housing and Urban Development (HUD). She now states that the BHA will hear her on November 6, 2020. Ms. Cormier asks the court to delay any sale of the property pending this appeal. [Note 1]

As a 50% co-tenant, Ms. Scangas has an absolute right to partition of the property. G.L. c. 241, § 1. Questions around the estate of Ms. Scangas's and Ms. Cormier's parents do not affect that right. On the other hand, Ms. Cormier is entitled to enough time to determine if she will be able to buy out Ms. Scangas. Given that this case was filed in 2019 and Ms. Cormier's initial application to the BHA was denied in January 2020, that time, notwithstanding delays caused by the pandemic, is coming to an end. That end is not here yet, as Ms. Cormier now has a date for her appeal to the BHA. Weighing the interests of all the parties, the court finds that the best course is to hold off execution of the purchase and sale agreement for enough time to reasonably expect a decision from the BHA. However, that time should be fixed so that a purchase and sale agreement can be executed at that time whether or not the BHA has ruled.

The court finds that, given the November 6 date of the hearing, a reasonable deadline is December 15, 2020. Therefore, it is ORDERED that execution of a purchase and sale agreement for the sale of the property is STAYED until December 15, 2020. On that date, the Commissioner may execute the purchase and sale agreement for the offer that is the subject of the Motion for Instructions. If for any reason the offer is withdrawn or that sale does not go through, the Commissioner is authorized to continue to market the property pursuant to the Warrant, but may not execute a purchase and sale agreement before December 15, 2020. Ms. Cormier may demonstrate to the court before December 15, 2020, that she has the financing necessary to buy out Ms. Scangas's interest at its market value, as determined by the sales price of the current offer or any other offers. Such a demonstration will be in the form of a motion for approval of a buyout, supported by loan commitments or other demonstration of firm financing or ability to pay. Absent such a showing, no further extensions of the sale of the property will be allowed. All other orders of the court in this proceeding remain in effect.

SO ORDERED