Real property – Partition – Buyout

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Where the parties to a partition proceeding have agreed to a buyout, the defendants may buy out the plaintiff’s interest, in its entirety, for $182,708.04.

“This is a partition action between three sisters — plaintiff Donna Brennan and defendants Diane Burke and Sandra McIntosh — who are the children of the late Joseph and Lena Rigoli. The property at issue (registered land) is the single family house at 37 Lawrence Street in Falmouth, built by the Rigolis and left to the sisters in accordance with various trusts and other instruments. These instruments were the subject of prior proceedings in this court, which determined that they divided the property as follows.

“* The underlying fee in the property, currently titled in the name of the Rigoli Realty Trust, is beneficially owned by the sisters in the following percentages: Ms. Brennan (16 2/3%), Ms. Burke (41 2/3%), and Ms. McIntosh (41 2/3%).

“* That fee is subject to the following life estates: Ms. Brennan and Ms. Burke, each with a present 50% undivided life estate in the property, and then Ms. McIntosh with a subsequent life estate, i.e. one that vests after Ms. Brennan and Ms. Burke have died, assuming she outlives them.

“Ms. Burke and Ms. McIntosh currently live in the house. Ms. Brennan does not, and has not for many years.

“By agreement of the parties, partition will be through Ms. Burke’s and Ms. McIntosh’s buyout of Ms. Brennan at the price set by this court after due proceedings. …

“The parties agreed to be bound by the findings of a mutually chosen real estate appraiser, Steven Backus, regarding the present market value and gross rental value of the property. …

“Based on Mr. Backus’ findings, the testimony and documents admitted at trial, my assessment of the credibility, weight, and appropriate inferences to be drawn from that evidence, and as explained more fully below, I find and rule that the present value of Ms. Brennan’s life estate is $101,610.70 and her remainder interest has a present value of $81,097.34, for a total of $182,708.04. Ms. Burke’s corresponding figures are $89,754.11 (the present value of her life estate) and $202,743.33 (the present value of her remainder interest) for a total of $292,497.44, and Ms. McIntosh’s corresponding figures are $22,051.19 (the present value of her life estate) and $202,743.33 (the present value of her remainder interest) for a total of $224,794.52. These three sets of interests total up to $700,000, the present market value of the property. I further find and rule that (1) Ms. Brennan was not ousted from the property and is thus not owed any rent for that reason, and (2) for equitable and other reasons, no one is owed any contribution towards any ‘disproportionate’ amount of maintenance, renovation, or improvement to the property they may have paid or caused. There are thus no adjusting set-offs. Accordingly, Ms. Burke and Ms. McIntosh may buy out Ms. Brennan’s interest, in its entirety, for $182,708.04. If buyout does not occur within 90 days of the Judgment, which I find to be a reasonable time for Ms. Burke and Ms. McIntosh to obtain any necessary financing, interest on the buyout amount shall begin accruing from and after that date at the statutory rate (12% per annum) see G.L. c. 231, section6C, thus increasing the buyout price by that amount. If buyout does not occur within six months of the date of Judgment, Ms. Brennan may purchase Ms. Burke’s and Ms. McIntosh’s interests at the values set forth above.”

Brennan v. Burke, et al. (Lawyers Weekly No. 14-055-19) (15 pages) (Long, J.) (Barnstable Land Court) (Docket No. MISC 15-000010) (June 13, 2019).

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