Opinion
21-P-1162
11-18-2022
DOREEN ANDERSON v. AMECHI ODIFE.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The respondent, Amechi Odife, appeals from an order of a Land Court judge partitioning property formerly owned by the parties as tenants in common. Odife argues that, in dividing the proceeds from the sale of the property, the judge should have required the petitioner, Doreen Anderson, to account for her failure to have paid any of the carrying costs on the property. We agree and thus reverse the order and remand for further proceedings.
Background.
In April 2017 the parties, who were then engaged to be married, bought a property together in Worcester. The parties took title as tenants in common without any percentage of interest indicated on the deed. The purchase price was $679,900, towards which Odife contributed $52,250 and Anderson contributed $17,997.65. Both parties signed a first mortgage note in the amount of $424,100 and a second mortgage note in the amount of $187,810.
In the spring of 2018, the parties ended their engagement; Anderson filed a petition to partition the property around two years later. In December 2020 the court-appointed commissioner issued an interim report, finding that the property was "currently occupied by [Odife], his mother and his children," that Anderson was "resid[ing] elsewhere," that Odife was "pay[ing] the first and second mortgage principal, interest, taxes and insurance and all utilities," and that Odife had received a six-month forbearance from the first mortgage lender.The commissioner concluded that "the best means to complete the partition would be to sell the property at private sale to the highest offer received."
The record reflects that the lender granted the forbearance because Odife was having financial difficulties during the COVID-19 pandemic.
In February 2021 the judge issued a warrant to the commissioner to sell the property, noting that neither party had raised any objections to the interim report. The property sold a few months later for $950,000. After payments of closing costs and liens, the commissioner received $258,871.05 in net funds, excluding his fees and expenses. In a final report, the commissioner sought authorization to disburse the net funds by refunding to the parties their respective down payments and then dividing the balance equally. The commissioner also opined that Odife should have to reimburse Anderson for the mortgage payments that he did not make during the forbearance period.
The judge held a nonevidentiary hearing in August 2021. After hearing arguments from the attorneys, including on the issue of which party was responsible for the mortgage payments, the judge explained his reasoning as follows:
"So I have a general way I do these things, and I try to be consistent. Generally, when one party is occupying the property and the other party is not, I expect that party that's occupying the property to be responsible for the mortgage, and I do not really countenance the idea that, technically, the other party may not have been formally ousted under the definition of ousted ....
"Also, generally I would not countenance, where the parties took title [fifty] percent undivided interest each, dividing it up separately based on their different contributions of down payment, but I think it's appropriate to deviate from one of my usual practices and not the other. . . .
"And it's clear that [Odife] spent significant amounts of time there, whether it was his primary residence or whether he spent significant amounts of time elsewhere or not, he had control of the property. He occupied the property. . . . And that sort of calls for the implication of my usual rule that that's the party that pays the mortgage, they have use of the property.
Based on this rationale, the judge ordered that the commissioner reimburse the parties for their respective down payments and then split the remaining proceeds, and that Odife reimburse Anderson for one-half of the deferred mortgage payments, reported to be approximately $55,000. In response to Odife's claim that he should be credited for Anderson's failure to make any mortgage payments, the judge stated, "I think that's recognized by her not getting half of the down payment, you know, getting the full split on the equity in the property."
Discussion.
Although there is a "presumption that partitioned property should be equally divided," Canepari v. Pascale, 78 Mass.App.Ct. 840, 844 (2011), the presumption is rebuttable, and, when "[c]onfronted with a petition for partition, a coowner may attempt to show that his beneficial interest is different from that indicated by the record title." Id., quoting Gonzalez v. Pierce-Williams, 68 Mass.App.Ct. 785, 787 (2007). The task for the judge is to reach a "just and equitable" division "according to the respective rights of the parties." Batchelder v. Munroe, 335 Mass. 216, 218 (1957). See Gonzalez, supra ("purpose of partition proceedings is to balance the rights and equities of the parties concerning the property at issue"). The judge has "considerable leeway in making an equitable division," but "that leeway is not boundless." Canepari, supra.
Here, Odife argues that the division was not just and equitable because it did not account for the fact that he alone made all of the mortgage, insurance, and tax payments on the property.' We agree that the judge should have taken this into consideration. "[T]axes, mortgage debt service, and insurance" are carrying costs that "are incurred to preserve the common estate and it would be a windfall to the noncontributing tenant if, upon partition, the paying tenant and the noncontributing tenant were not obliged to account so that each tenant in common bears his [or her] proportional share of the costs." Stylianopoulos v. Stylianopoulos, 17 Mass.App.Ct. 64, 69-70 (1983). It appears to be undisputed that Anderson made no contribution to the carrying costs. Indeed, there is evidence suggesting that Anderson abandoned responsibility for the property and was content to let it go into foreclosure. As Anderson admits in her brief, she "left Odife and his family to handle the [p]roperty after the parties broke up shortly after the purchase." Because Odife's assuming sole responsibility for the carrying costs preserved the equity in the property --ultimately allowing the parties to realize a gross profit of $270,100 -- Anderson should have been required to bear her proportional share of those costs. See id.
Contrary to Anderson's assertion at oral argument, Odife has not waived this issue on appeal. He adequately argued it in his brief, and his notice of appeal expresses his intent to challenge not only the requirement that he "reimburs[e] [Anderson] for one-half of the total amount of unpaid mortgage payments," but also "the failure to equitably address . . . [Anderson's] failure to contribute to the mortgage, interest and taxes at any time after the purchase."
Odife also claims that he should have been credited for certain unidentified improvements to the property, but fails to support this claim with adequate appellate argument.
We do not address whether the disparity in the parties' down payments independently warranted deviating from the presumption of equal division, as neither party has briefed that question. Even assuming it did not, we are unable to discern the factual basis for the judge's reasoning that Anderson's failure to pay her portion of the carrying costs was "recognized by her not getting half of the down payment, . . . [not] getting the full split on the equity in the property." Odife claimed, and Anderson did not dispute, that he paid over $174,769 in carrying costs. The disparity in the down payments was less than one-fifth of that.
That Odife and his family may have exclusively occupied the property for periods of time does not change our conclusion. Anderson cites no binding authority, and we have found none, supporting her assertion that it is "settled partition case law that the occupying cotenant enjoying exclusive use and occupancy of the property is solely responsible for payment of all carrying costs." Canepari, 78 Mass.App.Ct. 840, on which Anderson relies, supports the opposite proposition. There, we reaffirmed the principle expressed in Stylianopoulos that tenants in common, regardless of occupancy, must bear their proportional share of carrying costs upon partition of a property. See Canepari, supra. We then remanded the case with instructions for the judge to consider the parties' "particular contributions to the property, and the effect of those contributions on the property's increase in value." Id.
While a judge does have discretionary authority to charge an occupying tenant "with half the fair rental value of [his or] her personal occupancy of the property as a benefit received," to do so, the judge must first find that "the occupying tenant has agreed to pay rent or has ousted the other tenant or tenants in common from the property in question." Stylianopoulos, 17 Mass.App.Ct. at 66-67. See Giuggio v. Paoli, 244 Mass. 279, 281 (1923) ("If a tenant has not hindered his cotenant from entry upon the premises and thereby deprived him of his right, the bare occupation of the premises without an express agreement will not entitle the cotenant to call the occupying tenant to an account or render him liable to an action for the use and occupation of the premises"). Anderson does not claim that Odife agreed to pay rent, and, although her "'voluntary' departure would not be inconsistent with a conclusion that [Odife], as a practical matter, barred" her from the property, the judge expressly declined to reach the question of ouster. Stylianopoulos, supra at 68. Thus, the parties' dispute over whether Odife exclusively occupied the property is, in the end, immaterial to our resolution of this appeal.
While Odife's failure to file objections to the commissioner's December 2020 interim report waived any challenge to the finding that the property was "currently occupied" by Odife and his family, we note that the record is conflicting as to occupancy before December 2020. In a memorandum in support of the final distribution, the commissioner stated that Odife "had the sole possession of the premises since the purchase on April 27, 2017." At the hearing, however, the commissioner stated that he did not "know who occupied the property for how long" and that Anderson "was there part of the time when they were still engaged." The record also suggests that Odife -- who at the time of the engagement was practicing medicine in New York --was maintaining the property while also living in New York, and that the property was left unoccupied for weeks or months at a time. To the extent this factual dispute is determined relevant, it should be resolved by the judge in the first instance on remand.
Conclusion.
The order dated August 12, 2021, is reversed, and the matter is remanded for further proceedings consistent with this memorandum and order. On remand the judge shall make appropriate adjustments to the presumption of equal division so that the parties are required to bear their proportional shares of the costs of the mortgage loans, insurance, and taxes. See Canepari, 78 Mass.App.Ct. at 846; Stylianopoulos, 17 Mass.App.Ct. at 71. We do not preclude Anderson from renewing her argument that she is entitled to one-half the fair rental value of the property during any time that Odife excluded her from use and occupancy of the property.
Anderson's request for appellate attorney's fees and costs is denied. Obviously, the appeal is not frivolous.
So ordered.
The panelists are listed in order of seniority.