Carey's, Inc. v. Carey

9 Citing cases

  1. In re Melber

    315 B.R. 181 (Bankr. D. Mass. 2004)   Cited 13 times
    Opining that "any such prejudice can be mitigated or eliminated by conditioning the allowance of the amended exemption on payment of the trustee's . . . fees and costs from assets not otherwise available to the estate."

    Referring to Mass. Gen. Laws Ch. 188, § 2 and drawing an analogy to the decision in In re Garran, 338 F.3d 1 (1st Cir. 2003), the Trustee also contends that the estate of homestead obtained by Charles Melber prior to his marriage was terminated by the conveyance of the Property from Charles Melber to himself and Linda Perry-Melber as tenants by the entirety on January 8, 2003, because the new estate, namely the tenancy by the entirety, terminated the prior estate of homestead. QuotingCarey's, Inc. v. Carey, 25 Mass. App. Ct. 290, 517 N.E.2d 850 (Mass.App.Ct. 1988), the Trustee maintains that a tenancy by the entirety is a unique entity of a husband and a wife, which "'creates one indivisible estate in them both and in the survivor, which neither can destroy by any separate act. . . .'" (Id. at 25 Mass. App. Ct. at 295, 517 N.E.2d at 853 (quotingPineo v. White, 320 Mass. 487, 490-492, 70 N.E.2d 294 (1946)). Thus, according to the Trustee, when Charles Melber transferred the property to that new estate, the transfer had the effect of terminating the earlier estate of homestead under Mass. Gen. Laws Ch. 188, § 2.

  2. Shwachman v. Meagher

    699 N.E.2d 16 (Mass. App. Ct. 1998)   Cited 8 times
    Holding that the parties' court-approved agreement for judgment was not a final judgment

    can destroy by any separate act"); Licker v. Gluskin, 265 Mass. 403, 406-407 (1929) (which the Superior Court judge rightly relied upon) ("[T]he interest of the wife [in a tenancy by the entirety] . . . may [not] be conveyed by her [or] attached by her creditors. . . . During coverture [the wife can] make no valid conveyance of any interest . . . [in the tenancy by the entirety] without the assent in writing of the husband. Her sole deed [is] void. . . . [T]he interest of the wife as tenant by the entirety is not during coverture subject to attachment, levy [or] sale."); Krokyn v. Krokyn, 378 Mass. 206, 211 (1979) ("[T]he wife's mere expectancy of title is neither alienable nor subject to execution . . . ."); West v.First Agric. Bank, 382 Mass. 534, 543, 545-546 nn. 16, 20 (1981) (reaffirming Licker v.Gluskin and noting that, for all of the modern criticisms directed at it, certain practical benefits inhered in a tenancy by the entirety, which still "made sense in common situations");Carey's Inc. v. Carey, 25 Mass. App. Ct. 290, 295 (1988) ("Thus, generally, in 1977, any attempted conveyance of property held in a tenancy by the entirety by one tenant during the lifetime of the other was void. Both spouses had to join in a deed in order to convey the entire estate and destroy both survivorships.").

  3. Quinn v. Mar-Lees Seafood

    69 Mass. App. Ct. 688 (Mass. App. Ct. 2007)   Cited 23 times
    Criticizing lower court for "second-guess[ing] the wisdom of the parties' agreement inasmuch as "agreement and amendment were negotiated at arms' length by sophisticated parties"

    Accordingly, we examine the judge's decision from the viewpoint of whether there has been an abuse of discretion. See Carey's, Inc. v. Carey, 25 Mass. App. Ct. 290, 301 (1988). In so doing, we find his expressed reason for denying relief problematic.

  4. Diep Bui v. Ha T. Ma

    62 Mass. App. Ct. 553 (Mass. App. Ct. 2004)   Cited 23 times
    Explaining how a successor in interest of property can benefit from the rules of res judicata

    The lease was voidable, not void, and Bui could ratify it by her conduct. See Rosenbloom v. Kaplan, 273 Mass. 411, 416-417 (1930); Carey's, Inc. v. Carey, 25 Mass. App. Ct. 290, 300 n. 7 (1988). In this respect we reach a different conclusion from that of the trial judge, who reasoned that although Bui engaged in conduct that, in other circumstances, could constitute ratification of the lease, there was no ratification here.

  5. Pioneer Valley Federal Credit Union v. Soja

    2002 Mass. App. Div. 193 (Mass. Dist. Ct. App. 2002)   Cited 5 times

    We are unpersuaded by the defendant's contention that G.Lc. 209, § 1 cannot serve as the basis of the plaintiff's claim because such statute deals exclusively with the rights and interests of spouses in property held as tenants by the entirety and is thus inapplicable to this case. It is undeniable that Chapter 727 of the Acts of 1979 (effective February 11, 1980) substantially revised G.L.c. 209, § 1 "to alter the attributes of a tenancy by the entirety,' Carey's Inc. v. Carey, 25 Mass. App. Ct. 290, 294 n. 3 (1988), in order "to protect the interests of a nondebtor spouse,' Frost v. Zuio. 399 Mass. 1005 (1987), and to "attempt to equalize the rights of men and women' in such property. Coraccio v. Lowell Five Cents Say. Bank, 415 Mass. 145, 150 (1993).

  6. BUI v. MA, No

    No. 9903819B (Mass. Cmmw. Apr. 8, 2002)

    Rosenbloom v. Kaplan, 273 Mass. 411, 416-17 (1930). 8) Acceptance of rents under a lease and attempts to enforce rights under the lease may evidence ratification of the lease and election to be bound. Id.; Carey's Inc. v. Carey, 25 Mass. App. Ct. 290, 300 at n. 2 (1988). 9) A tenant at will must pay the fair value of the use and occupancy of the property.

  7. Foxboro Rlty. Assoc. v. Foxboro Park, No

    No. 962082 (Mass. Cmmw. Apr. 25, 1997)

    None of these cases stand for the proposition that, if FR1 (or a supposed successor such as FRA) merely comes into position to perform under the sublease, the sublease is capable of specific performance. In Carey's, Inc. v. Carey, 25 Mass. App. Ct. 290, 298 (1988), relied upon by the defendants, all the relevant parties were in the dark about the true state of the title. Furthermore, applying the general principle of estoppel, the circumstances would have made it unjust for the defendant lessor to rely on the true state of the title.

  8. Mediplex of Massachusetts, Inc. v. Donovan

    1994 Mass. App. Div. 123 (Mass. Dist. Ct. App. 1994)   Cited 3 times

    We are unpersuaded by the defendant's contention that G.L.c. 209, § 1 cannot serve as the basis of the plaintiff's claim because such statute deals exclusively with the rights and interests of spouses in property held as tenants by the entirety and is thus inapplicable to this case. It is undeniable that Chapter 727 of the Acts of 1979 (effective February 11, 1980) substantially revised G.L.c. 209, § 1 "to alter the attributes of a tenancy by the entirety," Carey's Inc. v. Carey, 25 Mass. App. Ct. 290, 294 n. 3 (1988), in order "to protect the interests of a nondebtor spouse,"Frost v. Zullo, 399 Mass. 1005 (1987), and to "attempt to equalize the rights of men and women" in such property. Coraccio v. Lowell Five Cents Sav. Bank, 415 Mass. 145, 150 (1993).

  9. Truck Center Leasing, Inc. v. Fiumara

    1992 Mass. App. Div. 16 (Mass. Dist. Ct. App. 1992)

    Blomendale, supra at 146. By way of example only, in the context of their undertaking, exactly what did the three words "triple net lease" mean? (While by then at least one court elsewhere had interpreted "triple net lease" as requiring a tenant to pay for taxes, maintenance and insurance costs, Butler Products Co., Inc, v. Roush, 153 Ariz. 500, 501, the only reference we could find in a Massachusetts appellate decision appears in Carey's Inc. v. Carey, 25 Mass. App. Ct. 290, 293, decided in the year after these events and simply stating but not explaining the meaning or application of the phrase.) If lessee was to pay for insurance, what kind(s) would be required and how much coverage would be necessary? (The Rome lease sought to require $1,000,000 of fire insurance.