JOSE MINAYA & others [Note 1] vs. MASSACHUSETTS CREDIT UNION SHARE INSURANCE CORPORATION.

ABRAMS, J. In this action, the plaintiffs allege that their dwellings were destroyed by a fire proximately caused by the

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dangerous and hazardous conditions maintained by the defendant on an adjacent property. The defendant's answer was a denial, and an affirmative defense that, on the date of the fire, September 9, 1982, the owner of the property was the city of Lynn, because, on August 13, 1982, a final decree in the city's tax lien case against the defendant had been recorded. In its answer, the defendant claimed that it "was not in control, did not own nor have any interest in the premises" on the date of the fire. The defendant moved for judgment on the pleadings. Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). A Superior Court judge allowed the defendant's motion, and we granted the plaintiffs' application for direct appellate review. We reverse.

The effect of a motion for judgment on the pleadings is "to challenge the legal sufficiency of the complaint." Burlington v. District Attorney for the N. Dist., 381 Mass. 717, 717-718 (1980). See Liberty Mut. Ins. Co. v. United States, 490 F. Supp. 328, 329 n.1 (E.D.N.Y. 1980) ("On a 12 [c] motion, the movant is deemed to admit his adversary's allegations of fact; the movant's allegations, conversely, are taken as true only if specifically admitted by the adversary"). "For purposes of the court's consideration of the [rule 12 (c)] motion, all of the well pleaded factual allegations in the adversary's pleadings are assumed to be true and all contravening assertions in the movant's pleadings are taken to be false." 5 C.A. Wright & A.R. Miller, Federal Practice and Procedure Section 1368, at 691 (1969).

The essence of the complaint is that the defendant's property was in a dangerous and hazardous condition, and that the condition of the property created a nuisance for which the defendant was liable. The plaintiffs assert that "[a]s a direct and proximate result of the nuisance created or allowed to exist by the defendant and the negligence, or intentional acts of the defendant as aforesaid, the plaintiff[s'] personal property and [that] of the plaintiff[s'] famil[ies] [was] damaged and destroyed by fire, all to the plaintiff[s'] damage."

The parties do not dispute the fact that on the date of the fire. September 9, 1982, the defendant did not own the property

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because on August 13, 1982, the city of Lynn had recorded a final decree in its tax lien case against the defendant. The complaint, however, does allege that the defendant continued to maintain the nuisance "for several days" after the city recorded its tax lien.

The narrow issue before us is whether the fact that title to the property was in the city of Lynn insulates the defendant from any liability. We conclude that it may not, and therefore we remand for further proceedings.

A transfer of ownership of land does, in most cases, relieve the prior owner of liability for dangerous conditions existing on the land. See Restatement (Second) of Torts Section 352 (1965). There is, however, an exception to this general principle which, on the pleadings before us, may apply to the instant case.

The "exception to the general rule of nonliability of the vendor is found in a number of cases where the land, when it is transferred, is in such condition that it involves an unreasonable risk of harm to those outside of the premises. In nearly all of the decided cases, this has amounted to either a public or a private nuisance, but this is clearly not essential. In such a case the vendor remains subject, at least for a reasonable time, to any liability which he would have incurred if he had remained in possession, for injuries to persons or property outside of the land, caused by such a condition. The reason usually given is the obviously fictitious one that by selling the land in such condition he has `authorized the continuance of the nuisance.' A more reasonable explanation would appear to be merely that the vendor's responsibility to those outside of his land is regarded as of such social importance that he is not permitted to shift it, even by an outright sale" (emphasis supplied). W. Prosser, Torts Section 64, at 413 (4th ed. 1971). The Restatement (Second) of Torts Section 840A (1977) states that a transferor of land "upon which there is a condition involving a nuisance for which he would be subject to liability if he continued in possession remains subject to liability for the continuation of the nuisance after he transfers the land ... until the vendee or lessee has had reasonable opportunity to discover the condition and abate it." See id., Section 373 (analogous

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provision for negligence). See also O'Connor v. Altus, 67 N.J. 106, 114 (1975) ("liability for physical harm caused by a natural or artificial condition, of which the vendor has actual or constructive notice, involving unreasonable risk to persons on or off the land continues only until the vendee has had a reasonable opportunity to discover the condition and take appropriate precautions"). Cf. Walter v. Wagner, 225 Ky. 255, 258 (1928) ("the one who creates a nuisance on his land is not relieved from liability for the damage it occasions to others by a sale of the property .... [Liability] would continue until the liability of the purchaser becomes fixed").

Further, "[p]ublic policy in a civilized community requires that there be someone to be held responsible for a private nuisance on each piece of real estate, and, particularly in an urban area, that there be no oases of nonliability where a private nuisance may be maintained with impunity." Kurtigian v. Worcester, 348 Mass. 284, 291 (1965). Thus, an owner of land who has maintained a nuisance may not be discharged of responsibility for that nuisance merely by either failing to pay property taxes or by a transfer until the new titleholder has had a reasonable time to correct the nuisance. Resolution of the plaintiffs' claims is therefore contingent on the development of facts relative to the nature of the nuisance, the time at which the defendant relinquished control of the property, and whether the period commencing on the date on which the city assumed control and ending on the date of the fire was reasonably sufficient to permit the city to abate the particular nuisance.

Our decision is not inconsistent with Kurtigian v. Worcester, supra, relied on by the defendant. In that case, liability for a private nuisance was imposed on the defendant city, which had recorded an instrument of taking nine years before the plaintiff's injury. We held that, despite the fact that the city had not foreclosed the prior owner's right of redemption until after the injury, "the city's right to possession long preceded the date of injury." Id. at 287. We stated that "[l]iability for damage caused by the defective condition of premises turns upon whether a defendant was in control, either through ownership or otherwise," id. at 285, and concluded that the nuisance

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"was on land owned by and subject to the control of the city." Id. at 290. Because the city was liable, [Note 2] we specifically did not reach the issue of the liability of the prior owner. Id. at 285-286.

Because in some limited circumstances a prior owner of real estate may be liable for a nuisance even after the transfer of title to the property, the plaintiffs' complaint is legally sufficient to survive a motion under Mass. R. Civ. P. 12 (c). [Note 3] The judgment is reversed and the matter remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.