Opinion
10-P-1996
04-09-2012
OMLC, LLC v. MYSTIC LANDING, LLC, & others.
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
OMLC, LLC (OMLC), and Mystic Landing, LLC (Mystic), entered into a purchase and sale agreement (P&S) under which Mystic agreed to sell real estate located partly in Everett and partly in Boston. A week before the closing, as part of its pre-closing due diligence, OMLC discovered that the city of Boston had recorded a taking of the Boston portion of the property for nonpayment of real estate taxes. OMLC brought this matter to Mystic's attention and demanded that the tax be paid. Five days before the scheduled closing, Mystic's attorneys paid the amounts due and obtained a receipt from the city. OMLC was informed that the taxes had been paid and confirming documentation from the city to that effect was provided to OMLC. However, because of the timing, the city could not produce a certificate of tax redemption prior to the closing and, as a result, Mystic could not deliver the certificate at the closing. OMLC refused to close, claiming that Mystic had breached the P&S because -- without the certificate of tax redemption -- Mystic could not convey such title as was required by the P&S. Mystic later sold the property to Boston Development Ventures LLC (BDV). OMLC brought suit against Mystic seeking specific performance and, in the alternative, return of its deposit. BDV intervened, and FBT Everett Realty LLC, to whom BDV had assigned the property, joined BDV as an intervener. The parties cross-moved for summary judgment on the specific performance claim, and the judge ruled against OMLC. OMLC appeals from the resulting separate and final judgment, and we affirm.
The deposit is not at issue in this appeal.
We review the record to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). On appeal, '[w]e may consider any ground supporting the judgment.' Ibid. We interpret an unambiguous contract as a matter of law on summary judgment. Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002). The standard is the same when reviewing a decision on a summary judgment motion involving specific performance. See Coviello v. Richardson, 76 Mass. App. Ct. 603, 607-608 (2010).
Mystic was required to 'convey a title in accordance with the requirements of the agreement.' Siegel v. Shaw, 337 Mass. 170, 172 (1958). Paragraph 2.1 of the P&S provides that 'Seller agrees to sell and transfer, and Buyer agrees to purchase and acquire, all of Seller's right, title, and interest in and to [the property]' (emphasis added). Under this provision, OMLC 'bought whatever [Mystic] might have to sell' and 'accepted the chance that there might not be any enforceable title; or even the right of possession.' United Sugar Co. v. Guaranty Trust Co., 254 Mass. 292, 293 (1926) (construing the phrase 'right, title and interest'). Consistent with this conclusion is paragraph 11.1, which required Mystic only to execute and deliver a 'quitclaim deed conveying title to the Land.' 'Quitclaim covenants do not guarantee full and paramount title, but do guarantee that the grantor is conveying whatever title he has and that he has done nothing to impair or encumber that title.' Dalessio v. Baggia, 57 Mass. App. Ct. 468, 470 n.4 (2003). See Quimby v. McHugh, 3 Mass. App. Ct. 797, 797 (1975) ('[T]he plaintiff's promise was not to convey the premises in question but to convey by a quitclaim deed . . . all her right, title, and interest (if any) in and to the premises . . .'). Finally, paragraph 6.2 does not state that the list of permitted encumbrances is exclusive or that clear record title is otherwise required. In short, the P&S did not require Mystic to convey clear record title, but only such title as it had. In other words, the P&S required OMLC to purchase the property even subject to the city's tax taking.
Paragraph 2.2 provides that 'Seller agrees to convey, and Buyer agrees to accept, on the Closing Date . . . title to the Land,' but does not contradict the provisions requiring a quitclaim deed, as opposed to a deed conveying clear record title.
Even were that not the case, the tax obligation had been satisfied by the time of closing. Under G. L. c. 60, § 62, payment of the delinquent taxes and interest redeemed title to the property by operation of law. The statute provides that '[a]ny person having an interest in land taken or sold for nonpayment of taxes . . . may redeem the same by paying or tendering to the treasurer the amount of the tax title account of the land being redeemed.' Ibid., as appearing in St. 1935, c. 414, § 2. Before the taxes were paid, the city merely held tax title to a portion of the property, analogous to the bare legal title held by a mortgagee. See Maglione v. BancBoston Mort. Corp., 29 Mass. App. Ct. 88, 90 (1990). Just as a mortgagee takes title to property only to secure a debt, see Negron v. Gordon, 373 Mass. 199, 204 (1977), the tax title provisions of G. L. c. 60 were 'enacted by the Legislature to provide municipalities with a mechanism for the prompt collection of delinquent real estate taxes,' Lynnfield v. Owners Unknown, 397 Mass. 470, 474 (1986). Once the taxes and interest were paid, the city's interest in the property terminated. Cf. Pineo v. White, 320 Mass. 487, 489 (1946) ('The payment of the mortgage notes at or before maturity, or the due performance of any other condition that is expressed in the mortgage, terminates the interests of the mortgagee without any formal release or discharge and revests the legal title in the mortgagor').
General Laws c. 60, § 63, requires recording of the certificate of tax redemption to restore title following the tax taking if the property has been conveyed by a tax collector's deed, see G. L. c. 60, § 48; Hebda v. O'Brien, 6 Mass. App. Ct. 661, 662-663 (1978), which the record shows is not the case here.
For these reasons, we conclude that Mystic's inability to produce a certificate of tax redemption at the closing did not put it in breach of its obligations under the P&S and that summary judgment was properly allowed in favor of Mystic and the interveners.
Deciding as we do, we need not address the parties' arguments about who was responsible for payment of the real estate taxes.
Judgment entered September 14, 2010, affirmed.
By the Court (Cypher, Cohen & Wolohojian, JJ.),