SAVITRI P. HINGORANI and PRIBHU L. HINGORANI, Plaintiffs v. SUNIL P. LULLA, Defendant

By Interim Order dated June 9, 2020, the court appointed J. Marlin Hawthorne, Esquire, to serve as partition commissioner in this action. As a matter of record title, the Plaintiffs, Savitri P. Hingorani and Pribhu L. Hingorani, each hold a 1/3 undivided interest in the property known and numbered as 208-210 River Street, Unit 210.5, Waltham, Middlesex County, Massachusetts, in common with defendant, Sunil P. Lulla, who holds a 1/3 undivided interest. The property is that described in a deed from Sushila G. Lulla dated April 26, 2013, and recorded with the Middlesex (South) District Registry of Deeds in Book 61684, Page 472 (partition parcel). The court determined in its June 9, 2020 Interim Order that the right to partition had been established.

The Report of the Commissioner was filed August 3, 2020. The Report of Commissioner Part I was filed August 17, 2020. Plaintiff's Responses to Commissioner's Report was filed August 31, 2020. A (Proposed) Order for Sale was filed September 15, 2020. An Assent of Petitioners to Proposed Order of Sale was filed September 15, 2020, and an Assent of Respondent to Proposed Order for Sale was filed September 16, 2020. The court issued an Order for Sale on September 17, 2020, where the court ordered that a separate warrant issue for the sale of each property incorporating the provisions of the Order for Sale. By agreement of the parties and the Commissioner, the court now issues this Warrant, pursuant to G.L. c. 241, §§ 12 and 31.

TO: J. Marlin Hawthorne, Esquire, of Pembroke, Massachusetts.

YOU were appointed commissioner, by Order of this court dated June 9, 2020, to make partition by sale of all the land herein described, the sole, common owners of record of which are, as follows: to Savitri P. Hingorani, Pribhu L. Hingorani, and Sunil P. Lulla, each holding an undivided 1/3 interest.

Having been previously sworn, you are ordered to effect partition by making sale of the whole of said real estate by private sale. The sale of said real estate shall take place as promptly as reasonably possible, and in no event later than April 30, 2021, unless the court on motion allows a later date. Under this Warrant, sale of said real estate shall occur by private sale in accordance with the following terms:

1. The Commissioner shall enter into a listing and commission agreement with one or more qualified licensed real estate broker or brokers, familiar with the real estate market in the area in which the partition parcel is located. The Commissioner need not obtain the approval of the court for the selection of the broker, nor for the terms of the listing agreement and the amount of the broker's commission, charges, and fees, but the Commissioner shall, in his judgment, engage a broker whose commission, charges, fees, and other terms of engagement are customary, fair, reasonable, and calculated best to maximize the net value which will be derived from the sale. The Commissioner shall, to the extent possible and in his judgment, include in any agreement with the broker an exclusion for potential buyers who have previously approached the Commissioner, but shall not be required to include such a term if in his judgment such a term is not customary, fair, reasonable, and calculated best to maximize the net value which will be derived from the sale. In choosing the broker and entering into an agreement with the broker, the Commissioner shall act with due regard for, but shall not be bound to follow, the preferences of the parties, if any, so long as they are timely expressed to him.

2. The Commissioner shall, subject to any particular requirements of law and this Warrant and other orders of this court, arrange, control, oversee, and establish the terms of the sale of said real estate by the broker(s). The Commissioner shall sell the partition parcel by listing it in the Multiple Listing Service (MLS PIN) for sale by conventional brokerage. Showings will consist of a preview by the broker(s) for assessment and photographs, one initial Sunday open house (with a second open house if needed). The goal will be to attempt to create a "rolling" auction with flexible enough terms such as not to exclude end-use (retail) buyers. Terms of sale will be a deposit of 5% of offer price with an offer to purchase, 10% at signing of a Purchase and Sale Agreement (with fiduciary covenant) payable by cash, Cashier's bank check, or certified funds, to be held by the Commissioner (not by brokers), with closing in 75 days.

3. The Commissioner shall enter into an agreement with a buyer for the purchase and sale of the partition property (and any necessary and proper amendments to that agreement) and thereafter shall proceed to consummate the sale, all in accordance with and subject to the terms and provisions of applicable law, this Warrant, and any other orders of this court. The purchase and sale agreement shall contain customary, fair, and reasonable terms, but the property generally shall be sold without warranty or representation of any kind, and without any covenant or undertaking which will survive the delivery of the deed by the Commissioner. The partition parcel to be sold "as is" with no warranties or guarantees. The purchase and sale agreement shall provide that the price and other terms of sale shall be subject to review and approval by the court, as provided in this Warrant, and that the sale shall not be consummated unless and until approved by the court on application of the Commissioner, subject to the rights of the parties to object, all as set forth in this Warrant.

4. The Commissioner shall forthwith direct the real estate broker to list said partition parcel for sale initially at a gross sales price of no less than $280,000.00. If there is no purchase and sale agreement within thirty (30) days after said partition parcel is listed for sale, the Commissioner may seek authorization from the court to direct the broker to list the partition parcel for a gross sales price of less than $280,000.00, and to thereafter negotiate a sale of said real estate for a sales price in an amount which is less than $280,000.00, net of any broker's commissions, or as the court otherwise orders.

5. The expenses and charges of the sale and partition, including those of or incurred by Commissioner Hawthorne, shall, to the extent they are reasonable, be paid directly by the parties if they agree or if unable to agree, out of the net proceeds of the sale prior to distribution to the parties. (In no event, however, shall the total fees to be paid to the Commissioner exceed, when calculated on an hourly basis for time appropriately expended, the ordinary and customary fees he charges clients for comparable legal services.) After making payment for all such just and proper expenses and charges of the sale and partition, and paying any amounts actually necessary to clear any liens and encumbrances upon the title to the partition parcel, Commissioner Hawthorne shall hold the remaining net proceeds of the sale in escrow pending further order of the court. Additional non-routine expenses such as additional advertisement, etc. will be with agreement of the parties. The parties have already agreed to a $500.00 expense for virtual tours to be created.

6. All offers accepted by the Commissioner with a signed Purchase and Sale agreement, will be subject to approval by this court, unless both the plaintiffs and defendant in this action agree to the sale price in writing. Unless the parties agree to the sale price in writing, within ten (10) days after execution of the purchase and sale agreement, the Commissioner shall present to the court (and serve upon the parties to this action) by written report: a true account of the terms of the private sale; of his incurred and anticipated expenses and charges (with receipts); the name of the buyer and the sum committed by the buyer to be paid for said real estate; and an accounting of the payments, credits, and debits to be made to or for the benefit of the parties and others upon consummation of the sale. Within seven (7) days of service of the Commissioner's written report, the parties are to file and serve any responses they have concerning the report, or their responses will be deemed waived. The court will act on any such objections which may be filed and approve or disapprove the price and terms of sale, on the papers submitted, without hearing, unless the court otherwise orders.

7. Once the court has approved the price and terms of sale, the Commissioner shall proceed to consummate the sale; to convey title by commissioner's deed; to receive the purchase price from the seller; to make all necessary adjustments, distributions, and payments associated with the sale (including payments or credits to discharge the property of any liens thereon, pay off unpaid invoices, and make adjustments); all on the closing date set in the purchase and sale agreement, in accordance with this Warrant, and any further orders the court may enter.

8. The parties may, if they so agree in writing, enter into an agreement to sell the property (and then may sell it) on any particular terms and at any price on which the parties may in writing agree, without prior approval from the court, under the following terms:

a. Prior to entering into any binding purchase and sale agreement, and prior to the consummation of any sale, the parties will (i) execute a written settlement agreement and report the settlement jointly in writing to both the Commissioner and the court, and (ii) file a stipulation of dismissal of this case, pursuant to Mass. R. Civ. P. 41(a)(1)(ii).

b. The Commissioner will no longer be involved in the sale, will be discharged from service, and the parties independently will consummate the sale.

c. Notwithstanding any settlement agreement and dismissal of this case, the parties shall assume in writing and remain jointly and severally liable for the fees, commissions, expenses, and charges of the sale, including without limitation those of or incurred by the Commissioner and the real estate broker, all of which shall be paid in good funds no later than the earlier of the date they are due or the time of closing of the sale of the property.

9. The parties are directed to provide full access to the Commissioner and the broker to the extent necessary to ready the property for sale, to market the property, and to show the premises on short notice. Without limiting the generality of the preceding sentence, the parties are upon request to provide the Commissioner and/or the broker with keys, access codes, and anything else required to facilitate access.

10. Within fourteen (14) days following the closing on the sale of said real estate, unless the court shall otherwise order, or unless written report is filed by you indicating the need for evidentiary proceedings pursuant to above paragraph 6, you are required to present to this court, under oath, a true account of the payments made by you, and to return this Warrant with your doings endorsed thereon, accompanied by the receipts of the persons whom you have paid. All proceeds of sale shall be held by the Commissioner in escrow pending further order of the court.

11. If the parties agree to a consensual resolution of this case, they are immediately to report the settlement jointly in writing to both the Commissioner and the court. Absent good cause, the Commissioner and broker, if any then is engaged, shall cease work upon receipt of notice of settlement from the parties, and only resume work with leave of this court. The parties will be responsible for compensating the Commissioner and the broker, if any, for any work they may have performed, and any costs, commissions, fees, charges, or expenses they reasonably may have earned or incurred, through the time they receive written notice of any settlement.

SO ORDERED