WILLIAM E. ECKLUND, KAREN M. ECKLUND, Petitioners v. TANYA J. HICKEY, Respondent

Petitioners William E. Ecklund and Karen M. Ecklund filed the Petition to Partition in this action on March 4, 2020, seeking partition, pursuant to G. L. c. 241, of an improved parcel of land located at 165 Warwick Street, Lowell, Massachsuetts, 0185 (the "Property"), containing two residential apartments, which is more particularly described in the Petition to Partition.

On October 5, 2020, the court conducted a case management conference, at which counsel for Petitioners, Attorney David Plunkett, appeared. Respondent did not appear for the initial Case Management Conference and did not file an answer. Attorney Plunket confirmed that Respondent lives in the first floor apartment of the Property. Attorney Plunket reported that Respondent had been served at that address with the Petition to Partition and he had also mailed several court notices to her at that address, none of which had been returned as undeliverable. In addition, Attorney Plunket advised that Petitioner, Karen Ecklund has a restraining order against Respondent.

Petitioners hold an interest to the Property as a tenants in common with Respondent, with common title to the Propety derived under a deed of the Ecklund Family Trust. [Note 1] Petitioners claim that their individual interests are broken down as follows:

William E. Ecklund 33.33%

Karen M. Ecklund 33.33%

Tanya J. Hickey 33.33%

It is indisputable that the court, in proceeding to partition, may treat the Property as "land which cannot be divided advantageously," and order the commissioner "to sell and convey the whole . . . of the land . . . upon such terms and conditions . . . as the court may order." G.L. c. 241, § 31. The statute allows either private sale of the Property or for an order for a conveyance setting off the Property to one party, with his or her consent and upon payment to the other party. Id. §§ 14, 31.

The court has determined to appoint Neil M. Kerstein, Esquire of 632 Washington St., B-3, 02184, Braintree, Massachusetts, a member of the bar of the Commonwealth and disinterested person, to serve as commissioner. [Note 2] The court has selected the commissioner in sequence from a list the court maintains of those qualified for appointment to serve as commissioner to make partition of real property in the county in which the partition locus lies. The court makes this appointment and reference to Attorney Nichols as Commissioner under the partition statute with the instruction that he be charged with preparing a written interim report to the court concerning the specific matters referred to him. Following the filing of his interim report, the court will review it; afford the parties an opportunity to assent to, or to contest, it; and hold, if necessary, one or more hearings (including, if indicated, evidentiary hearings) before issuing a warrant and order for partition. Such a warrant and order for partition will establish the specific manner and conduct of the partition, and provide for the distribution of sale proceeds. It being clear that the method of partition will entail some manner of sale or conveyance of the whole, this court determines that the appointment of a commissioner is now necessary and appropriate.

The specific matters and issues on which the Commissioner is to address in the interim report are:

1. Undertake to contact Respondent about the Petiton to Partition and encourage Respondent to attend all future hearings with or without counsel (such as the Status Conference scheduled for January 5, 9:30 am).

2. Undertake due diligence to confirm title analysis and ownership as set forth in the Petition to Partition.

3. The advisability, cost, timing, and specific methodology of ordering sale of the Property by private sale to a third party, by public auction, and/or by setoff of the entire Property to one of the parties, with the parties' consent, subject to payment by one or more parties to other parties, including advising as to the cleanup and preparation of the Property for sale. G. L. c. 241, §§ 14, 31.

4. The manner and amounts in which the proceeds of sale, if any, ought to be distributed to the parties and others who may be entitled, subject to appropriate adjustments to be made as a result of "all matters of accounting between the parties to the petition in reference to the common land . . . ." G. L. c. 241, § 25.

Parties are to provide to the Commissioner any relevant information they possess that may assist him in the preparation of the interim report. If the parties agree to a consensual resolution and settlement of this case prior to the Commissioner's return date of December 14, 2020, they are immediately to report the settlement in writing to both the Commissioner and the court. [Note 3] Absent good cause, the Commissioner shall cease work on this case upon receiving notice of settlement from the parties and only resume work on the case with leave of this court. The parties will remain responsible for compensating the Commissioner for any work he may have performed, and for any costs, charges, or expenses he reasonably may have incurred, through the time he receives written notice of any settlement.

TO: Neil M. Kerstein, of Braintree, Massachusetts:

YOU are appointed Commissioner to make partition by division, sale, or conveyance of all the land herein described, the common owners of which are as follows:

I. CREATION OF INTERIM REPORT

First being sworn, you are ordered to take such action and make such inquiry and investigation as are reasonably necessary to render the interim report to this court as set forth above, and to render your interim report in writing to the court on or before December 14, 2020, unless the court allows a request for later filing. To prepare this interim report, you are authorized:

1. To examine and copy records and papers relating to the Property and its ownership, occupancy, improvement, value, expenses, revenues, and uses, including without limitation, investigation of concerns regarding Petitioner's title and ownership interest;

2. To meet, speak, and correspond with the parties, their counsel, and other representatives;

3. To go upon, enter, and examine the Property at any and all reasonable times upon reasonable advance notice to the parties and others affected;

4. To secure the opinions of persons who are experts in their respective fields of knowledge and endeavor, including on any matters relative to real property and the Property, including its market value, all possible uses, and its physical characteristics; and on matters of accounting; and make contracts for the payment of such persons;

5. To employ such surveyors, real estate appraisal experts, and real estate sales experts as necessary to determine the division of land and/or fair asking price at sale for the Property, and how properly to advertise and market its sale; and make contracts for the payment of such persons;

6. To employ such other assistance as is reasonably and actually necessary to make the report to the court as required of you in this interim order; and

7. To confirm that property and casualty insurance are in place for the Property.

Petitioner and Respondent may object to or request to be heard on your report and its subject matter, with any such objections and requests to be filed and served no later than 21 days following the filing of your interim report. Upon receiving the interim report and any timely objections, the court may, without hearing (or with hearing if either the court deems it necessary, or if a party, for good cause, requests one), determine: (1) the appropriate method and conduct of any division, distribution, sale, or conveyance to be carried out by you as Commissioner, and (2) the manner in which any sale proceeds shall be accounted for and distributed.

II. PAYMENT

At the conclusion of the proceeding, the parties shall pay you in proportion to their respective shares from the distribution of the sale proceeds for the actual, reasonable value of the services rendered as Commissioner, subject to the following conditions. First, in no event will the fees you charge as Commissioner exceed, when calculated on an hourly basis for time appropriately expended, the ordinary and customary fees you charge clients for comparable legal services. Further, at least seven days following beginning your work under this Order, you are to file with the court and the parties a good-faith and reasonably detailed estimate of the time and charges you anticipate will be required to complete the work referred to you by the court in this Order. See Supreme Judicial Court Rule 1:07. [Note 4]

You may only incur expenses as actually and reasonably necessary. You may engage third parties as permitted in this Order by written agreement with the third parties. You are not to engage any third party without first consulting with Petitioner and Respondent (if available), or without providing to all parties and filing in court, at least ten days in advance of the engagement, a copy of the proposed contract and a reasonably detailed, good-faith estimate of the entire cost associated with that third party's engagement. [Note 5]

III. RETAINER

If the Commissioner needs a retainer, he may request one by filing a motion with the court.

IV. BOND

Unless an order of the court issues to the contrary, you are authorized to serve as Commissioner under this Interim Order without surety or bond, but you will be required to obtain a bond if you will be responsible for handling funds in connection with the public or private sale of the Property or in connection with the set-off of the interests of some of the parties. All fees, expenses, charges and costs actually and reasonably earned or incurred by you in accordance with this Order will constitute costs of the partition, G. L. c. 241, § 22, and they will be reviewed and determined by the court in accordance with that statute.

SO ORDERED.