Co-owners of real estate who no longer want to share title may file a petition for partition. If the property cannot be physically divided, the partition may be done in one of two ways: either one party buys out the interest of the other or the property is sold and the proceeds are divided amongst the parties (after the court decides the proportion of interest each party is entitled to).
In Massachusetts, partition proceedings are governed by General Laws Chapter 241. Section 26 deals with the death of a party during the pendency of the proceeding by providing the manner by which heirs of a deceased party may recover the portion of the partition assigned to the deceased. However, Section 26 does not specify whether it applies when the party held title as joint tenant with a right of survivorship. Joint tenancy is a form of ownership whereby, upon the death of a joint tenant, his interest automatically transfers to the surviving joint tenant. In contrast, tenants in common do not have a right of survivorship: the interest of a deceased tenant in common passes to his heirs, not to the surviving tenant in common.
Can the heirs of a deceased party maintain a partition action? It depends. In a case of first impression, Freda Battle, personal representative, v. Barbara A. Howard, the Supreme Judicial Court (“SJC”) explained the impact of a party’s death during the pendency of a petition for partition where the parties held title as joint tenants with right of survivorship.
In that case filed while the parties/joint tenant were both alive, the Land Court (Robert, J.) appointed a commissioner and authorized him to sell the property with one caveat: the purchase and sale agreement (“P&S agreement”) was subject to review and approval by the Court. The commissioner accepted an offer and submitted to the Court a request to enter into a P&S agreement. Before the Court could rule on the commissioner’s request, the petitioner passed away. The respondent then filed a motion to dismiss, alleging that the Court lacked subject matter jurisdiction because the petitioner’s death vested full title in the respondent as the surviving joint tenant. The Court denied the motion and the respondent appealed. The SJC, on its own initiative, transferred the case from the Appeals Court.
The SJC reversed the order denying the motion to dismiss but on slightly different grounds: it found that the case should have been dismissed because the heirs lacked standing to continue the action. The SJC found that the mere acceptance of the offer to purchase did not terminate the joint tenancy. Up until the death of the petitioner, each party still held title as joint tenant, irrespective of the acceptance of the offer. Only a commissioner’s deed would have severed the joint tenancy. Significantly, the SJC also held that Section 26 does not apply to joint tenancies. It observed that construing Section 26 otherwise would result in the abolition of the right of survivorship. Simply put, section 26 does not give the heirs of a joint tenant the right to continue a partition action.