Opinion
10-P-847
12-28-2011
CITY OF CHELSEA v. GABRIEL RIVERA & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal from seven judgments foreclosing their right of redemption on nine properties located in the city of Chelsea (city). On appeal, the defendants argue that summary judgment was improperly granted in favor of the city because they redeemed the property located at 34 Cottage Street and the notices of taking issued by the city were defective. We affirm.
Background. We recite a general background of this case, with discussion of specific facts reserved for the issues raised.
The defendants own nine properties in Chelsea taken by the city for nonpayment of taxes. After the city filed seven complaints to forever foreclose the right of redemption on these properties, the defendants moved for summary judgment on the basis that the notices of taking were defective. Specifically, the defendants argued that the notices contained substantial, misleading errors because they were not properly acknowledged, did not accurately identify the owners, and did not contain accurate descriptions of the properties. The Land Court recorder denied the defendants' motions. The recorder entered summary judgment for the city and approved final judgments of foreclosure in favor of the city. The defendants' right of redemption on each of the properties was thus foreclosed.
In a well-reasoned decision, the recorder considered and rejected the defendants' claims. This decision was filed with respect to two of the cases. On the other five cases, in which the same claims were made, the recorder endorsed the motions for summary judgment as 'denied.'
Discussion. A. Validity of the notices of taking. Under G. L. c. 60, § 54, an instrument of tax taking 'shall be under the hand and seal of the collector[,]' must contain 'a substantially accurate description' of the property taken, and must reflect 'the name of the person to whom the [tax] was assessed.' 'No tax title . . . shall be held to be invalid by reason of any error or irregularity which is neither substantial nor misleading . . . .' G. L. c. 60, § 37.
The defendants argue that the notices of taking at issue in this case contained substantial and misleading errors because they were not properly acknowledged. We disagree. An acknowledgment is a formal statement to one authorized to take it that the execution of an instrument was the signor's free act and deed. McOuatt v. McOuatt, 320 Mass. 410, 415 (1946). 'No particular words are necessary as long as they amount to an admission that [the signor] has voluntarily and freely executed the instrument.' Ibid. Each of the notices was signed by the city collector and contained a notary public's certification that the collector 'personally appeared' before her and either 'acknowledged the foregoing instrument to be his/her free act and deed as Collector of Taxes,' or 'acknowledged to me that he/she signed [the notice] voluntarily for its stated purpose.' The notices were signed under the collector's 'hand and seal,' which is all that G. L. c. 60, § 54, requires. There was no error.
The defendants next argue that the notices of taking for 33 Cary Avenue, unit 1; 105 Shurtleff Street, unit 2; 407 Broadway; and 158-160 Shawmut Street contained substantial and misleading errors because they misidentified the owners and/or the properties.
The misspelling of one defendant's first name and the misidentification of the owner on the notice of taking for 33 Cary Avenue, unit 1, was neither substantial nor misleading. 'The differences in the names . . . closely approximated the true name of the owner, and it is difficult to see how [the defendant] could have thought that any other person was intended to be [named in the notice].' Trustees of the Hawes Fund in Boston v. Boston, 346 Mass. 26, 28 (1963).
The notice identified one defendant as 'Gabiel' instead of 'Gabriel,' and the owner as '33 Cary Avenue Unit 1 Condo Trust' instead of '33 Cary Avenue Realty Trust.'
There were no errors in the notice of taking for 105 Shurtleff Street, unit 2, as Mark and Paula Speers owned the unit on January 1, 1999, when the taxes for which the property was taken were assessed. See G. L. c. 60, § 54 (a notice of tax taking 'shall' contain 'the name of the person to whom the [tax] was assessed').
105 Shurtleff Street, unit 2 was taken for nonpayment of taxes in the year 1999-2000. 'Taxes on real estate shall be assessed . . . to the person who is the owner on January first,' G. L. c. 59, § 11, and 'all taxes shall be assessed as of January first preceding the fiscal year with respect to which the taxes are assessed.' G. L. c. 59, § 21. The deed transferring ownership of 105 Shurtleff Street, unit 2 from the Speerses to the defendants was recorded on February 18, 2000, therefore, the notice of taking identified the correct owners.
That the notice of taking for 407-409 Broadway listed the property being taken only as '407 Broadway' is 'of no consequence,' since the notice makes clear reference to the deed, 'which contains the more detailed description of the property.' Vee Jay Realty Trust Co. v. DiCroce, 360 Mass. 751, 755 (1972). The notice states that the land is 'described as Map 29 Parcel 0093 in the Office of the Assessors,' which pictures one lot numbered 407-409 Broadway. 'It is enough if the description is reasonably accurate and fairly designates the property for the information of those interested,' Lowell v. Boland, 327 Mass. 300, 302 (1951), and the defendants' issuance of a check to the city on October 22, 2009 (six years after the notice of taking was recorded) to redeem '407-409 Broadway' indicates that the defendants were not misled by the notice of taking.
While the defendants argue that the notice of taking for 158-160 Shawmut Street was defective because 'Gonzalez Osmany Trustee PO Box 6203 IMCN' was identified as the owner and Osmany Gonzalez was no longer the trustee, the notice was clearly addressed to Mr. Gonzalez in his capacity as trustee. The trust owned the property, and there is nothing in the record to suggest that it did not receive the notice.
The defendants have not shown how the errors, if any, in the notices of taking prejudiced them, and '[i]t has always been held that a non-compliance by the assessors with the strict requirements of the statutes, if it does not affect the rights of the tax-paying citizen, does not render the tax [taking] invalid.' Bemis v. Caldwell, 123 Mass. 299, 300-301 (1887). See Canron, Inc. v. Assessors of Everett, 366 Mass. 634, 639 (1975).
B. 34 Cottage Street. The defendants argue that summary judgment was wrongly granted with respect to 34 Cottage Street because whether a payment made on July 13, 2001, to redeem 34 Cottage Street included taxes owing for the 2000- 2001 tax year was disputed. Subsequently assessed taxes 'shall be made a part of the terms of redemption' of a property taken for nonpayment of taxes, 'except that if any of the said subsequent taxes have not been certified by the collector . . . to be added to the tax title account, then redemption may be made by payment only of the amount of the tax for which the estate was . . . taken . . . .'
G. L. c. 60, § 61. There is no indication in the record that the collector certified that the 2000-2001 taxes were added to the tax title account before the defendants tendered payment and, because the property was successfully redeemed, the payment was 'only of the amount of the tax for which the estate was . . . taken' as a matter of law. Ibid.
We do not consider the defendants' challenge to the constitutionality of the takings under the Fourth, Fifth, and Sixth Amendments to the United States Constitution because it was raised for the first time in a reply brief on appeal. See Mass.R.A.P. 16(a)(4), 367 Mass. 921 (1975); Moog v. Commonwealth, 42 Mass. App. Ct. 925, 927 (1997). The defendants' request for attorney's fees and sanctions is denied.
Judgments affirmed.
By the Court (Green, Hanlon & Carhart, JJ.),