MARGARET M. MILNER and WILLIAM DOHERTY, Petitioners v. SHEILA DOHERTY, Respondent

Petitioners, [Note 1] Margaret M. Milner and William Doherty, filed the petition to partition in this action on April 13, 2020, seeking partition, pursuant to G. L. c. 241, of an improved parcel of land ("Property") located at 48-50 Whitfield Road, Somerville, Middlesex County, Massachusetts, which is more particularly described in a deed from Margaret M. Milner, as Trustee of the Bridget Doherty Irrevocable Trust, u/d/t dated February 2, 2012, to Margaret M. Milner, William Doherty, and Sheila Doherty, recorded with the Middlesex South County Registry of Deeds in Book 74320 Page 454. Common title to the Property derives from said deed.

On July 17, 2020, the court conducted a case management conference, at which counsel for petitioners and respondent appeared, and at which the parties agreed, and the court so found that the Property was held by the three parties as co-tenants in equal shares and could not be advantageously divided. On September 29, 2020, the parties filed a Stipulation on the Pleadings for the Petition for Partition whereby they again agreed to title to the property as found at the July 17th case management conference and further requested that Peter J. Kajko, Esq. be appointed partition commissioner and that the property be sold at private sale. On October 8, 2020, the court conducted a status conference and found that based on his having previously worked with both counsel in unrelated matters and given his knowledge of the market in Middlesex county, particularly Somerville, that the appointment of attorney Kajko off the list was appropriate. The court ordered that attorney Kajko be appointed commissioner in this matter.

It is clear that partition lies in this case, that the Property at issue in this case may not advantageously be divided physically, and that appointment of a commissioner under the statute is necessary and appropriate. The court has determined to appoint Peter J. Kajko, Esquire, of Kajko, Weisman & Colasanti, LLP, 430 Bedford St., Suite 390, Lexington, Massachusetts, 02420, a member of the bar of the Commonwealth and disinterested person, to serve as commissioner. Per order of October 8, 2020 and in accordance with Supreme Judicial Court Rule 1:07 § (4), the court has appointed Attorney Kajko as commissioner in this matter after providing a brief written statement of reasons for not appointing from the list, rather than select 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 Kajko as commissioner under the partition statute with the instruction that he be charged with preparing a report to the court concerning specific matters referred to him. Following the filing of the commissioner's report, the court will review the report; will afford the parties the opportunity to assent to or to contest the report; and will, if necessary, hold further hearings (including, if indicated, evidentiary hearings) before issuing a warrant and order for partition by sale, which will establish the specific method, manner and conduct of the partition, and will make provision for the distribution of sale proceeds, if any, or any other adjustments necessary to make partition just and equal.

The specific matters and issues on which the commissioner is to act, investigate and report are:

1. The commissioner is to investigate the property without delay to determine whether the property is secure and covered by adequate casualty and liability insurance, and if it is not, to take such steps, and to expend such funds of the parties, as he deems necessary and proper to have the property insured and put into a secure condition. The commissioner also is to investigate without delay to determine whether the payments of real property taxes, mortgage periodic payments, and payments due under any other lien or encumbrance upon the title to the property are delinquent, and, if so, whether the delinquency is (or hereafter becomes) such that it jeopardizes the parties' title to the property to the degree that would require payment of the delinquent amounts prior to the consummation of the partition. The commissioner may make demand of the parties to post, in equal amounts, any sums he determines necessary and proper to carry out his responsibilities under this paragraph, and, notwithstanding any contrary provision of this interim Warrant, the parties shall, within 48 hours of request therefor communicated in any manner by the commissioner, pay to the commissioner good funds in the amount requested by him for these purposes.

2. The advisability, cost, timing, and specific methodology of ordering sale of the locus by private sale to a third party, G.L. c. 241 § 31; by public auction, id.; and/or by setoff of the entire property to one of the parties, with his or her consent, subject to payment by him or her to the other party, G.L. c. 241 § 14.

3. The appropriate adjustments to be made as a result of "all matters of accounting between the parties in reference to the common land..." G.L. c. 241, § 25; see also Asker v. Asker, 8 Mass. App. Ct. 634 (1979). The parties are to provide relevant information to the commissioner, who will report thereon, subject to the parties' right to object and to request hearing, before the court proceeds to make binding orders governing the specific manner of sale or conveyance and the distribution of proceeds.

4. The use and occupancy of the Property by the parties and others in the time preceding the consummation of the partition.

TO: Peter J. Kajko, Esquire, of Kajko, Weisman & Colasanti, LLP, 430 Bedford St., Suite 390, Lexington, Massachusetts, 02420:

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

Margaret M. Milner - 176 Old River Road, Lincoln, RI 02865 - 1/3

William Doherty - 26 Endmoor Road, Westford, MA 01886 - 1/3

Sheila Doherty - 1 Lincoln Avenue, Manchester, MA 01944 - 1/3

First being sworn, you are ordered to take such action and make such inquiry and investigation as are reasonably necessary to render the report to the court as set forth above, and to render your report in writing to the court not later than forty-five days from the date of this Interim Warrant, which is November 23, 2020, unless the court allows a request for later filing. To prepare this report, you are authorized:

1. To examine and copy records and papers relating to the real property and its ownership, mortgages and other liens, occupancy, improvement, value, expenses, revenues, and uses;

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

3. To go upon, enter, and examine the real 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 endeavour, 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, engineers, land use specialists, real estate appraisal experts and real estate sales experts as necessary to determine whether and how physical division is to be made, or the fair asking price at sale for the Property and how properly to advertise and market the sale of the Property; and

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 Order.

The parties will be entitled to file objections to, and requests to be heard on, your report and its subject matter, all to be filed and served no later than ten days following the filing in court of your report. Upon receipt of your report and the parties' filings, the court will, without hearing (or with hearing if either the court deems it necessary or a party for good cause requests), determine and make appropriate orders concerning the matters you are in your report to address, including without limitation the appropriate method and conduct of the partition to be carried out by you as commissioner, and the manner and amounts in which the sale proceeds shall be accounted for and distributed by you.

You will be entitled to be paid by the parties in equal shares at the conclusion of this proceeding (or earlier if the court orders) for the actual, reasonable value of your services rendered as commissioner, provided however, that (i) 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, and (ii) you are directed, at least five days prior to commencement of work hereunder, to file with the court and the parties, a good faith and reasonably-detailed written estimate of the time and charges you anticipate will be required to complete the work referred to you by the court in this Order. You may only incur expenses as actually and reasonably necessary and may only engage third parties as permitted in this Order by written agreement with the third parties, and only as actually and reasonably necessary. You are not to engage any third party without prior consultation with the parties, and without providing to the parties and filing in court, at least ten days in advance, 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 3]

Notwithstanding the other provisions of this Order, including the preceding paragraph, you are authorized to direct the parties to deliver to you, to be held by you in escrow subject to an accounting by you to be approved by the court, a retainer as an advance towards your fees, charges, and expenses as commissioner, in an amount initially not to exceed $5,000 (unless otherwise ordered by the court on your request or otherwise), reflecting your best estimate of the fees, charges, and expenses you will incur in performing your services as commissioner pursuant to this Order. Upon receiving request therefor from the commissioner communicated in any manner by the commissioner, the parties are to post, in equal amounts, those sums he determines pursuant to this paragraph to be necessary and appropriate to constitute the authorized retainer. Notwithstanding any contrary provision of this Order, the parties shall, within five business days of request therefor, pay to the commissioner to be held in escrow good funds in the amount requested by him for these purposes. In the event the commissioner determines that the amount likely to be due him for fees, charges, and expenses will be exceed the amount then in escrow as a retainer, the commissioner is to advise the parties and to file a motion with the court seeking approval of a further retainer adequate to cover the anticipated amount likely to be due.

Unless and until an order of the court issues to the contrary, you are authorized to serve as commissioner under this Order without surety or bond. 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, as they will be reviewed and determined by the court in accordance with this Order.

So Ordered.