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USA Statutes : massachusetts
Title : PART III. COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
Chapter : TITLE III. REMEDIES RELATING TO REAL PROPERTY
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Section 1. All estates of freehold in fee simple, fee tail or for life may be recovered in a civil action.
Section 10. Non-tenure, disclaimer, several tenancy and sole tenancy may be pleaded in answer.
Section 11. The plaintiff may recover any specific part or undivided portion of the land to which he proves a sufficient title, although less than demanded in the complaint.
Section 12. If the plaintiff recovers judgment, he shall recover in the same action, subject to the limitations provided in this chapter, damages for rents and profits of the land from the time when his title accrued and for any destruction or waste of the buildings or other property for which the defendant is liable.
Section 13. Rents and profits for which the defendant is liable shall be the clear annual value of the land while he was in possession thereof, after deducting all lawful taxes and assessments on the land paid by him and all necessary and ordinary expenses of cultivating the land or collecting rents, profits or income thereof.
Section 14. In determining rents and profits, the value of the use by the defendant of any improvements made by him or by those under whom he claims shall be excluded.
Section 15. The defendant shall not be liable for rents and profits for any time more than six years prior to the commencement of the action or for waste or damage committed before said six years, unless rents and profits are allowed to diminish the defendant’s recovery upon his counterclaim for improvements under section twenty-seven.
Section 16. If the land demanded has been actually held and possessed by the defendant and by those under whom he claims for six years next before the commencement of the action, he shall, if judgment is against him, be entitled to compensation as hereinafter provided for the value of any buildings or improvements made or erected on the land by him or by any person under whom he claims.
Section 17. The defendant shall also be entitled to like compensation although the land has not been so held for six years, if he holds it under a title which he had reason to believe good.
Section 18. The defendant may interpose a counterclaim for the value of such improvements.
commonwealth Section 2. A civil action to recover freehold estates in fee simple, fee tail or for life may be prosecuted against the commonwealth under this chapter.
Section 20. The amount recovered by the defendant upon such counterclaim shall not exceed the amount actually expended by the defendant and those under whom he claims, nor shall it exceed the amount by which the value of the land is actually increased thereby as assessed at the time of the action.
Chapter 237: Section 21. Court assessments; postponements Section 21. Except as provided in sections twenty-two to twenty-four, inclusive, and in section twenty-six, if there is a trial in the land court, it shall at the same time assess the amounts due the plaintiff for rents and profits or other damages, if any, and shall determine the amount to be allowed to the defendant for improvements, if any, and also, if duly required, the value of the plaintiff’s estate, unless, on its own motion or that of either party, made before its finding or decision on the title is recorded, it postpones such assessment or determination until after its trial of the title and its finding or decision thereon.
Chapter 237: Section 22. Jury assessments; postponements Section 22. If trial by jury shall be demanded and if issues therefor are to be framed to obtain an assessment of the amounts due to the plaintiff for rents and profits or other damages, or a determination of the amount to be allowed to the defendant for improvements, or of the value of the plaintiff’s estate, the land court, on its own motion, or on that of either party, made at any time before the papers required by section fifteen of chapter one hundred and eighty-five have been entered in the superior court, may postpone such issues until after its trial of the title and its findings or decision thereon. In such case said court shall order that the procedure provided by section fifteen of chapter one hundred and eighty-five be suspended pending its further order under section twenty-three.
Chapter 237: Section 23. Resumption of procedure for assessment by jury Section 23. If issues are postponed under the preceding section, and if, on its trial of the title, the land court shall make a finding or decision in favor of the plaintiff, that court shall, on motion of either party, made before its finding or decision on the title is recorded, order that the procedure provided by section fifteen of chapter one hundred and eighty-five be resumed, except that the papers required by said section fifteen shall be entered in the superior court for the county where the land lies within thirty days after such order.
Chapter 237: Section 24. Waiver of jury trial Section 24. If issues have been postponed under section twenty-two, and if, after a finding or decision in favor of the plaintiff on the title, no motion under section twenty-three is seasonably made, that the procedure provided by section fifteen of chapter one hundred and eighty-five be resumed, jury trial on such postponed issues shall be deemed to be waived, and such assessment or determinations shall be made as provided in section twenty-one or twenty-five.
Chapter 237: Section 25. Assessment by assessors Section 25. In cases where an assessment of the amounts due to the plaintiff for rents and profits and other damages, or a determination of the amount to be allowed to the defendant for improvements, or of the value of the plaintiff’s estate is to be made by the land court, such assessment or determination may, if the parties consent, be made by assessors appointed by that court.
Chapter 237: Section 26. Judgments to both parties Section 26. The defendant shall have judgment upon his counterclaim for the value of the improvements. The plaintiff shall have judgment and execution for the amount found due him for rents and profits and other damages due from the defendant as well as for seisin of the land.
Chapter 237: Section 27. Excess of improvements over rents and profits; effect Section 27. If the amount found due to the defendant for improvements exceeds the amount found due from him for rents and profits accruing within six years, he shall be chargeable with rents and profits accruing before that time, so far as necessary to balance his judgment for improvements; but in such case he shall not be liable to repay rents and profits in excess of the value of the improvements.
Chapter 237: Section 28. Payment of balance due defendant Section 28. The plaintiff shall, except as provided in the following section, before taking out execution for seisin of the land, pay to the defendant, or for his use to the recorder of the land court, the amount, if any, by which the defendant’s judgment upon his counterclaim for improvements exceeds the amount recovered against the defendant by the plaintiff upon his claim for rents and profits and other damages; but the defendant or person claiming under him shall not be liable for rents and profits accruing between the date of the judgment and payment by the plaintiff of said amount.
Chapter 237: Section 29. Writ of seisin before judgment Section 29. If the plaintiff has had judgment for seisin of the land, he may take out a writ of seisin before judgment has been rendered upon his claim for rents and profits or other damages or upon the defendant’s counterclaim for improvements, but if there is pending such a counterclaim, the plaintiff, before taking out his writ of seisin, shall furnish such security or pay into court such amount of money as the land court may order, to secure to the defendant the payment of any amount found due him for such improvements.
Section 3. The plaintiff shall declare on his own seisin within twenty years then last past, without specifying any particular day, and shall allege a disseisin by the defendant, but need not aver a taking of the profits. He shall set forth the estate which he claims in the land whether in fee simple, fee tail or for life, and if the latter, whether for his own life or for the life of another, but he need not set forth the original gift, devise or other conveyance or title by which he claims the estate.
Chapter 237: Section 30. Collection of balance due defendant Section 30. If the defendant has judgment for such improvements, he may have an execution therefor or he may collect the same, with all reasonable costs and expenses for such collection, out of the security furnished, or may receive it out of the money paid into court and the residue thereof, if any, shall be returned to the plaintiff.
Chapter 237: Section 31. Valuation without considering improvements Section 31. If the defendant counterclaims for improvements as before provided the plaintiff may, by motion, require the value of his estate in the land demanded, without the improvements, to be determined as provided for the assessment of rents, profits and improvements. Such value shall be the value which, at the time of assessment, the land would have had if the improvements had not been made by the defendant or a person under whom he claims.
Chapter 237: Section 32. Relinquishment of estate; recording election Section 32. After said determination of value the plaintiff may, at the sitting at which judgment is entered for him, enter upon the record his election to relinquish his estate in the land to the defendant at said value; and upon his motion for further time in which to make such election the land court may postpone the entry of judgment without further costs for him.
Chapter 237: Section 33. Relinquishment of estate; effect; payments by defendant Section 33. If the plaintiff elects to relinquish the land as before provided, the defendant shall thenceforth hold all the estate which the plaintiff had therein at the commencement of the action, if he pays said value thereof in three equal instalments on or before the expiration of one, two and three years, respectively, from the time when said election was entered on the record, with interest therefrom on the amount unpaid.
Chapter 237: Section 34. Nonpayment by defendant; effect Section 34. Said payments shall be made to the plaintiff or for his use to the recorder of the land court; and if the defendant fails to make any such payment within the time limited therefor, the plaintiff may, within three months after default of payment, take out his writ of seisin on the judgment recovered, and shall take and hold the land without allowance for any improvements made thereon.
Chapter 237: Section 35. Failure of title to relinquished land; remedies; notice Section 35. If the defendant or his heirs or assigns, after the land is so relinquished to him, are evicted therefrom by force of a better title than that of the original plaintiff, the person so evicted may recover in a civil action from such plaintiff, or from his executors, administrators, heirs or devisees under chapter one hundred and ninety-seven, the amount so paid for the land, with lawful interest thereon; but in order to be so entitled to recover, the defendant or those holding under him shall give notice to the person so liable to refund the purchase money of the pendency of the action for the recovery of the land, so that he may offer evidence tending to prove that the original plaintiff had the better title.
Chapter 237: Section 36. Effect on mode of payment Section 36. If, after judgment for the plaintiff, either party dies before the writ of seisin is executed, or before the case is otherwise settled under this chapter, any money payable by the plaintiff or defendant, respectively, may be paid by him or his executor or administrator, or by a person entitled to the estate under him, to the defendant or plaintiff, respectively, or his executor or administrator.
Chapter 237: Section 37. Writ of seisin Section 37. The writ of seisin issued in such case shall be in the name of the original plaintiff against the original defendant, although either or both of them are dead, and when executed it shall enure to the benefit of the plaintiff or of the person entitled to the land under him, as if it had been executed on the day when the judgment was rendered.
Chapter 237: Section 38. Recovery by life tenant from remainderman, etc. Section 38. If a plaintiff claiming an estate for life only satisfies a judgment upon the defendant’s counterclaim for improvements, he or his executor or administrator shall, at the determination of his estate, be paid by the remainderman or reversioner the value of the improvements as they then exist, shall have a lien on the land for said value as if it had been mortgaged for the payment of such value, and may keep possession of the land until such payment is made.
Chapter 237: Section 39. Amount due from remainderman; determination Section 39. If the amount due from the remainderman or reversioner is not agreed on by the parties, it may be determined in a civil action brought by the remainderman or reversioner; and the proceedings shall be the same as in a suit for the redemption of a mortgage.
Section 4. The plaintiff need not prove an actual entry under his title, but proof that he is entitled to such an estate as he claims in the land and that he has a right of entry therein shall be sufficient to prove his seisin. No such action shall be maintained unless the plaintiff has at the time of commencing his action a right of entry into the land demanded.
Chapter 237: Section 40. Limitation on amount recoverable Section 40. The remainderman or reversioner, or those claiming under him, shall not recover from the adverse party the excess, if any, of rents and profits accruing after the determination of the estate for life, over the amount due for the improvements.
Chapter 237: Section 41. Time for bringing action; limitation Section 41. The remainderman or reversioner, or those claiming under him, shall be deemed disseized at the determination of the life estate, and the civil action under section thirty-nine and all other remedies by action or entry for the recovery of the land shall be barred as in other cases of disseisin, and the limitation of three years provided for the redemption of a mortgage shall not apply.
Chapter 237: Section 42. Recording execution for possession and return Section 42. An officer serving an execution issued upon a judgment for possession shall, within three months after the service, and before the return of the execution into the recorder’s office, cause such execution with his return thereon to be recorded in the registry of deeds for the county or district where the land affected thereby lies, and the expense thereof shall be added to his charge for service.
Chapter 237: Section 43. Actions for mesne profits or damage to land Section 43. This chapter shall not prevent the plaintiff from maintaining an action for mesne profits, or for damage done to the land, against any person, except the defendant in the action to regain seisin.
Chapter 237: Section 44. Actions by mortgagees Section 44. The provisions of this chapter relative to rents and profits to be recovered, an allowance for improvements made on the land demanded and the value of the land without the improvements shall not apply to an action brought by a mortgagee, his heirs or assigns, against a mortgagor, his heirs or assigns, for the recovery of the land mortgaged.
Section 5. Such action shall be prosecuted in the same manner as if the plaintiff, at the time of commencing the action, had made an actual entry on the land demanded and had been immediately ousted by the defendant. In a trial upon the general issue, if the plaintiff proves that he is entitled to the estate set forth in the complaint and that he had a right of entry on the day when the action was commenced, he shall recover the land unless the defendant proves a better title in himself.
Section 6. A person in possession of land demanded in a civil action, claiming an estate of freehold therein, may be considered as a disseisor for the purpose of trying the right, irrespective of the manner of his original entry therein.
Section 7. If the person in possession has actually ousted the plaintiff or withheld from him the possession of the land, he may, at the election of the plaintiff, be considered as a disseisor for the purpose of trying the right, although he claims an estate less than a freehold.
Section 8. Joint tenants or tenants in common may join in a civil action for the recovery of land, or any one of them may sue alone for his share.
Section 9. The law and practice relative to pleadings and evidence in a writ of entry upon disseisin, as heretofore recognized and established, shall continue in force, except as altered by this chapter and chapters one hundred and eighty-five and two hundred and thirty-one and by the Massachusetts Rules of Civil Procedure.
Section 1. If a forcible entry into land or tenements has been made, if a peaceable entry has been made and the possession is unlawfully held by force, if the lessee of land or tenements or a person holding under him holds possession without right after the determination of a lease by its own limitation or by notice to quit or otherwise, or if a mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, or if a person has acquired title to land or tenements by purchase, and the seller or any person holding under him refuses to surrender possession thereof to the buyer, or if a tax title has been foreclosed by decree of the land court, or if a purchaser, under a written agreement to purchase, is in possession of land or tenements beyond the date of the agreement without taking title to said land as called for by said agreement, the person entitled to the land or tenements may recover possession thereof under this chapter. A person in whose favor the land court has entered a decree for confirmation and registration of his title to land may in like manner recover possession thereof, except where the person in possession or any person under whom he claims has erected buildings or improvements on the land, and the land has been actually held and possessed by him or those under whom he claims for six years next before the date of said decree or was held at the date of said decree under a title which he had reason to believe good.
Section 10. Upon application for such a stay of proceedings, the court shall hear the parties, and if upon the hearing it appears that the premises of which possession is sought to be recovered are used for dwelling purposes; that the applicant cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated; that he has used due and reasonable effort to secure such other premises; that his application is made in good faith and that he will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted, the court may grant a stay as provided in the preceding section, on condition that the terms upon which such stay is granted be complied with.
In any action to recover possession of premises occupied for dwelling purposes brought pursuant to this chapter in which a stay or stays of execution have been granted, by the court or by agreement of the parties, or in any such action where there is an agreement for judgment that grants the tenant a right to reinstate the tenancy, no execution shall issue prior to the expiration of the period of such stay or stays or such reinstatement period unless the plaintiff shall first bring a motion for the issuance of the execution and the court after a hearing shall determine that the tenant or occupant is in substantial violation of a material term or condition of the stay or a material term of the agreement for judgment.
Section 11. Such stay shall be granted and continue effective only upon the condition that the applicant shall make a deposit in court of the entire amount, or such instalments thereof from time to time, as the court may direct, for the occupation of the premises for the period of the stay, at the rate to which he was liable as rent for the month immediately prior to the expiration of his term or tenancy plus such additional amount, if any, as the court may determine to be reasonable. The deposit shall also include all rent unpaid prior to the period of the stay. The amount of the deposit shall be determined by the court at the hearing upon the application for the stay, and such determination shall be final and conclusive in respect only to the amount of the deposit, and the amount thereof shall be paid into court, in such manner and in such instalments, if any, as the court may direct. A separate account shall be kept of the amount to the credit of each proceeding, and all such payments shall be deposited by the clerk of the court, and paid over to the landlord or his duly authorized agent, in accordance with the terms of the stay or the further order of the court.
Section 12. Any provision of a lease whereby a lessee or tenant waives the benefits of any provision of sections nine to thirteen, inclusive, shall be deemed to be against public policy and void.
Section 13. Costs recoverable under section three shall, in actions to which sections nine to eleven, inclusive, apply, include only legal costs covering actual disbursements and shall not include fictitious costs, so-called.
action by lessor under this chapter to recover possession; conditions and restrictions Section 1A. A lessor of land or tenements used for residential purposes may bring an action under this chapter to recover possession thereof before the determination of the lease by its own limitation, subject to the following conditions and restrictions. The tenancy of the premises at issue shall have been created for at least six months duration by a written lease in which a specific termination date is designated, a copy of which, signed by all parties, shall be annexed to the summons. No such action may be initiated before the latest date permitted by the lease for either party to notify the other of his intention to renew or extend the rental agreement, or in any case before thirty days before the designated termination date of the tenancy. The person bringing the action shall notify all defendants by registered mail that he has done so, which notification shall be mailed not later than twenty-four hours after the action is initiated. The person bringing the action shall demonstrate substantial grounds upon which the court could reasonably conclude that the defendant is likely to continue in possession of the premises at issue without right after the designated termination date, which grounds shall be set forth in the writ. No execution for possession may issue in any such action before the day next following the designated termination date of the tenancy. Any action brought pursuant to this section shall conform to and be governed by the provisions of this chapter in all other respects and no remedy or procedure otherwise available to any party, including any stay of execution which the court has discretion to allow, shall be denied solely because the action was brought pursuant to this section.
[Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 2. Such person may bring an action in the superior court in the county in which the land lies if the plaintiff seeks money damages and there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000, or such other amount as is ordered from time to time by the supreme judicial court. Where multiple damages are allowed by law, the amount of single damages claimed shall control. Such person may bring an action in the district court in the judicial district in which the land lies.
Such person may bring the action by a writ in the form of an original summons to the defendant to answer to the claim of the plaintiff that the defendant is in possession of the land or tenements in question, describing them, which he holds unlawfully against the right of the plaintiff, and, if rent and use and occupation is claimed, that the defendant owed rent and use and occupation in the amount stated; but, subject to the approval of the supreme judicial court, the judge of the housing court of the city of Boston shall determine the form of the writ in the actions brought in his court. Failure to claim rent and use and occupation in the action shall not bar a subsequent action therefor.
tenant’s union activity; defense; presumption Section 2A. It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or exercising rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four, or reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six, or organizing or joining a tenants’ union or similar organization or making, or expressing an intention to make, a payment of rent to an organization of unit owners pursuant to paragraph (c) of section six of chapter one hundred and eighty-three A. The commencement of such action against a tenant, or the sending of a notice to quit upon which the summary process action is based, or the sending of a notice, or performing any act, the purpose of which is to materially alter the terms of the tenancy, within six months after the tenant has commenced, proceeded with or obtained relief in such action, exercised such rights, made such report, organized or joined such tenants’ union, or made or expressed an intention to make a payment of rent to an organization of unit owners, or within six months after any other person has taken such action or actions on behalf of the tenant or relating to the building in which such tenant resides, shall create a rebuttable presumption that such summary process action is a reprisal against the tenant for engaging in such activities or was taken in the belief that the tenant had engaged in such activities. Such presumption may be rebutted only by clear and convincing evidence that such action was not a reprisal against the tenant and that the plaintiff had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, even if the tenant had not commenced any legal action, made such report or engaged in such activity.
Section 3. Except as hereinafter provided, if the court finds that the plaintiff is entitled to possession, he shall have judgment and execution for possession and costs, and, if rent is claimed as provided in section two and found due, the judgment and execution shall include the amount of the award. If the plaintiff becomes nonsuit or fails to prove his right to possession, the defendant shall have judgment and execution for costs.
At least forty-eight hours prior to serving or levying upon an execution issued on a judgment for the plaintiff for possession of land or tenements rented or leased for dwelling purposes, the officer serving or levying upon the execution shall give the defendant written notice that at a specified date and time he will serve or levy upon the execution and that at that time he will physically remove the defendant and his personal possessions from the premises if the defendant has not prior to that time vacated the premises voluntarily.
The notice shall contain (1) the signature, full name, full business address and business telephone number of the officer; (2) the name of the court and the docket number of the action; (3) a statement that the officer will place any personal property remaining on the premises at the time the execution is levied in storage at a licensed public warehouse, and the full name, full business address, and business telephone number of the warehouse to be used; (4) a statement that the warehouser’s storage rates may be ascertained by contacting the commissioner of public safety and the address and telephone number of such agency; (5) a statement that the warehouser may sell at auction any property that is unclaimed after 6 months and may retain that portion of the proceeds necessary to compensate him for any unpaid storage fees accrued as of the date of the auction, except as provided in section 4; and (6) a statement that the defendant should notify the warehouser in writing at the business address listed in the notice of any change in the defendant’s mailing address. The notice referred to in this section shall be served in the same manner as the summary process summons and complaint and shall be filed in the court that issued the execution.
The officer shall select the public warehouser identified in the notice described in the preceding paragraph in a manner calculated to ensure that the defendant’s personal property will be stored within a reasonable distance of the premises at issue in the summary process action. The officer shall not select pursuant to this section a warehouser whom the officer knows or reasonably believes to be in violation of any provision of section 4.
No execution for possession of premises rented or leased for dwelling purposes shall be served or levied upon after five o’clock p.
m. or before nine o’clock a.
m.
, nor on a Saturday, Sunday, or legal holiday.
If the underlying money judgment in any summary process action for nonpayment of rent in premises rented or leased for dwelling purposes has been fully satisfied, together with any use and occupancy accruing since the date of judgment, the plaintiff shall be barred from levying on any execution for possession that has issued and shall return the execution to the court fully satisfied. If no execution has issued, the plaintiff shall notify the court of the satisfaction of judgment and no execution shall issue thereafter. If the underlying money judgment has been fully satisfied and use and occupancy fully paid, the defendant shall be considered a lawful tenant and may enforce this right through judicial process, including injunctions barring the issuance of or levying upon the execution and motions to supersede or recall the execution. Notwithstanding this paragraph, the plaintiff shall not be required to accept full satisfaction of the money judgment. Any refusal by the plaintiff to accept full satisfaction of the money judgment under this paragraph shall not be a bar to the enforcement of said judgment in any lawful manner.
[Seventh paragraph applicable as provided by 2004, 252, Sec. 23.
] In case of appeal from the district court on either or both issues involved or on any counterclaim, the appeal shall be to the appellate division under section 5.
enforcement; penalties Section 4. (a) If an officer, serving an execution issued on a judgment for the plaintiff for possession of land or tenements, removes personal property, belonging to a person other than the plaintiff, from the land or tenements, he shall forthwith cause it to be stored for the benefit of the owners thereof. Such property shall be stored with the licensed public warehouser identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a warehouser or other storage facility of the defendant’s choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property. The officer shall file with the court that issued the summary process judgment and provide to the defendant in hand, or if the defendant is not present at the time of execution by receipted mail to the defendant’s last and best known address, a receipt containing a description of the goods removed or of the packages containing them, as well as name and signature of the officer.
(b) Any public warehouser who accepts property for storage pursuant to this section: (1) shall be licensed and bonded pursuant to section 1 of chapter 105 ; (2) shall file its current storage rates with the commissioner of public safety and shall not change such rates more than once annually, unless the commissioner of public safety or his designee gives prior written approval upon a showing of extraordinary circumstances; (3) shall not impose charges for storage under this section in excess of the rates filed with and not rejected by the commissioner of public safety at the time of service of the notice provided for in section 3; (4) shall not impose charges for storage under this section in excess of the fair market rates for storage facilities of similar quality in the warehouse’s general locale; (5) shall not impose charges other than those for the actual storage of goods pursuant to this section, including, but not limited to, docking fees, warehouse labor fees, administrative fees, or other similar fees imposed in addition to the storage rates listed with the commissioner of public safety; (6) shall not impose minimum fees or otherwise charge storage fees for any period other than the period of actual storage; (7) shall credit toward the defendant’s costs of storage any amount paid by the plaintiff or other third party in connection with the storage of the property in question; (8) shall send by first class mail to the defendant’s last and best known address monthly statements of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien or security interest pursuant to this section; and (9) shall insure the defendant’s property against fire and theft in the amount of no less than $10,000. A warehouser who accepts goods under this section is liable for any loss or injury to the goods caused by his or her failure to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances but unless otherwise agreed or provided in this section, the warehouser is not liable for damages which could not have been avoided by the exercise of such care. No person shall be required to release a warehouser from liability as a condition of release of any stored property.
(c) The plaintiff in the summary process action shall pay the costs of removing the property to the place of storage. The plaintiff shall be entitled to reimbursement by the defendant for any costs and fees so advanced.
(d) Upon receipt of personal property under this section, a public warehouser shall forthwith, but no later than 7 days after the removal of the property from the land or tenements at issue in the summary process action, issue a warehouse receipt that complies with the requirements of section 7-202 of chapter 106. Such receipt shall contain as additional terms: (1) a statement that the warehouser may sell any property unclaimed after six months and retain that portion of the proceeds necessary to compensate the warehouser for lawful storage fees actually accrued as of the date of the auction, except as provided in this section; (2) a list of the warehouser’s storage rates and a statement that such rates may be verified by contacting the commissioner of public safety, as well as the address and telephone number of such agency; (3) a conspicuous statement that the defendant should notify the warehouser in writing at the business address listed in the notice of any change in the defendant’s mailing address; (4) a description of the applicable procedures for reclaiming the stored property, including, but not limited to, a statement that the defendant is entitled to reclaim items of personal or sentimental value but limited auction value once during the period of storage without payment of any fee and that the defendant shall be entitled to purchase individual items at any auction held to enforce the warehouser’s lien created under this section and an identification of the publication in which any such auction will be advertised pursuant to subsection (f) of section 7-210 of said chapter 106. A duplicate copy of the warehouse receipt shall be kept on file at the place of storage and the original shall be served by receipted mail or hand delivery to the defendant at his last and best known address. The warehouser shall keep separate the goods covered by each receipt so as to permit at all times identification and delivery of those goods. A warehouser who fails to comply with the requirements of this subsection shall be liable for damages caused by the omission to a person injured thereby.
(e) Any warehouser who accepts personal property pursuant to this section shall have a lien thereon for charges for storage, insofar as such charges are imposed in accordance with this section. The lien shall not be enforced by sale or disposal of the property until it has been kept in storage for at least 6 months. Thereafter, the warehouser may enforce the lien in the manner provided for in subsection (2) of section 7-210 of chapter 106, except as otherwise provided in this section. The defendant shall be entitled to postpone the sale or disposal of his property for 3 months upon payment of one half of all storage fees incurred plus costs reasonably incurred in preparation for their sale pursuant to law. The warehouser may satisfy his lien from the proceeds of any sale or disposition under this section but must hold the balance for delivery on the demand of any person to whom he would have been bound to deliver the goods. A warehouser’s failure to comply with any of the requirements of this section shall result in the forfeiture of his lien.
(f) The defendant may access his stored property once, without charge or payment of storage fees, either to inspect the property or to remove items having primarily personal or sentimental value, or both. Items having primarily personal or sentimental value, shall include but not be limited to photographs, passports, documents, funeral urns, and the like. All personal property stored under this section may be reclaimed at any time upon payment of all storage fees lawfully owed by the defendant. If the property is sold at auction, the defendant shall be entitled to purchase the property in bloc or in parcels, regardless of the terms of the public sale. The failure of any third party to pay monies owed by him to the warehouser shall not affect the rights of the property owner to reclaim property under this subsection.
(g) A warehouser who violates this section shall pay a civil penalty of not more than $5,000, in an amount to be determined by the commissioner of public safety after notice and an opportunity for an adjudicatory hearing under chapter 30A. The commissioner or his or her designee may at any time conduct an inspection of a public warehouse storing goods under this section for the purpose of assessing compliance with applicable health and safety codes and the requirements of this section. The commissioner may reject the rates filed by a warehouser for storage pursuant to this section if the commissioner determines that such rates are not commercially reasonable or otherwise violate this section. The failure of the commissioner to reject a warehouser’s rates shall not create a presumption that such rates are commercially reasonable for purposes of liability under chapter 93A or this section.
(h) Notwithstanding any civil penalty imposed pursuant to subsection (g), the defendant may petition the court in which the summary process action was heard for damages or injunctive relief in connection with any violation of this section. A violation of this section shall also be a violation of section 2 of chapter 93A.
waiver or periodic payments; notice of decision [Text of section applicable as provided by 2004, 252, Sec. 23.
] Section 5. (a) If either party appeals from a judgment of the superior court, a housing court, or a district court in an action under this chapter, including a judgment on a counterclaim, that party shall file a notice of appeal with the court within 10 days after the entry of the judgment. An execution upon a judgment rendered pursuant to section 3 shall not issue until the expiration of 10 days after the entry of the judgment.
(b) In an appeal of a judgment of a district court, other than an appeal governed by subsection (c), the appellant shall, before any appeal under this section is allowed, file in the district court a bond payable to the appellee in the penal sum of $100, with surety or sureties as approved by the court, or secured by cash or its equivalent deposited with the clerk, conditioned to satisfy any judgment for costs which may be entered against the appellant in the appellate division within 30 days after the entry thereof.
(c) Except as provided in section 6, the defendant shall, before any appeal under this section is allowed from a judgment of the superior court, a housing court, or a district court, rendered for the plaintiff for the possession of the land or tenements demanded in a case in which the plaintiff continues at the time of establishment of bond to seek to recover possession, give bond in a sum as the court orders, payable to the plaintiff, with sufficient surety or sureties approved by the court, or secured by cash or its equivalent deposited with the clerk, in a reasonable amount to be fixed by the court. In an appeal from a judgment of a district court the bond shall be conditioned to enter the action in the appellate division at the return day next after the appeal is taken. In an appeal from a judgment of the superior court or a housing court the bond filed shall be conditioned to enter the action in the appeals court. Appeals from judgments of the superior court or a housing court shall otherwise be governed by the Massachusetts Rules of Appellate Procedure. The bond shall also be conditioned to pay to the plaintiff, if final judgment is in plaintiff’s favor, all rent accrued at the date of the bond, all intervening rent, and all damage and loss which the plaintiff may sustain by the withholding of possession of the land or tenements demanded and by any injury done thereto during the withholding, with all costs, until delivery of possession thereof to the plaintiff.
(d) In appeals from a judgment of the superior court, a housing court or a district court the deposit shall not be transmitted to the appeals court or the appellate division unless specifically requested by said appeals court or appellate division. The superior court, a housing court or a district court may give directions as to the manner of keeping the deposit. Upon final judgment for the plaintiff, all money then due to him may be recovered in an action on the bond provided for in the third paragraph of this section.
(e) A party may make a motion to waive the appeal bond provided for in this section if the party is indigent as provided in section 27A of chapter 261. The motion shall, together with a notice of appeal and any supporting affidavits, be filed within the time limits set forth in this section. The court shall waive the requirement of the bond or security if it is satisfied that the person requesting the waiver has any defense which is not frivolous and is indigent as provided in said section 27A of said chapter 261. The court shall require any person for whom the bond or security provided for in subsection (c) has been waived to pay in installments as the same becomes due, pending appeal, all or any portion of any rent which shall become due after the date of the waiver. A court shall not require the person to make any other payments or deposits. The court shall forthwith make a decision on the motion. If the motion is made, no execution shall issue until the expiration of 6 days from the court’s decision on the motion or until the expiration of the time specified in this section for the taking of appeals, whichever is later.
(f) Any party aggrieved by the denial of a motion to waive the bond or who wishes to contest the amount of periodic payments required by the court may seek review of the decision as hereinafter provided. If the motion was made in the superior court or a housing court, the request for review shall be to the single justice of the appeals court at the next sitting thereof. If the motion was made in any district or municipal court, the request for review shall be to the appellate division then sitting pursuant to section 108 of chapter 231. The court receiving the request shall review the findings, the amount of bond or deposit, if any, and the amount of periodic payment required, if any, as if it were initially deciding the matter, and the court may withdraw or amend any finding or reduce or rescind any amount of bond, deposit or periodic payment when in its judgment the facts so warrant.
(g) Any party to the action may file a request for the review with the clerk of the court originally hearing the request to waive bond within the time period provided in this section for filing notice of appeal, or within 6 days after receiving notice of the decision of the court on the motion to waive bond, whichever is the later. The court shall then forward the motion, the court’s findings and any other documents relevant to the appeal to the clerk of the court reviewing the decision which, upon receipt thereof, shall schedule a speedy hearing thereon and send notice thereof to the parties. Any request for review filed pursuant to this section shall be heard upon statements of counsel, memoranda and affidavits submitted by the parties. Further testimony shall be taken if the reviewing court shall find that the taking of further testimony would aid the disposition of the review.
(h) Upon the rendering of a decision on review, the reviewing court shall give notice of the decision to the parties and the defendant shall comply with the requirements of the decision within 5 days after receiving notice thereof. If the defendant fails to file with the clerk of the court rendering the judgment, the amount of bond, deposit or periodic payment required by the decision of the reviewing court within 5 days from receipt of notice of the decision, the appeal from the judgment shall be dismissed. Where a defendant seeks review pursuant to this section, no execution shall issue until the expiration of 5 days from the date defendant has received notice of the decision of the reviewing court.
foreclosure of mortgage; after purchase Section 6. If the action is for the possession of land after foreclosure of a mortgage thereon, the condition of the bond shall be for the entry of the action and payment to the plaintiff, if final judgment is in his favor, of all costs and of a reasonable amount as rent of the land from the day when the mortgage was foreclosed until possession of the land is obtained by the plaintiff. If the action is for possession of land after purchase, the condition of the bond shall be for the entry of the action and payment to the plaintiff, if final judgment is in his favor, of all costs and of a reasonable amount as rent of the land from the day that the purchaser obtained title to the premises until the delivery of possession thereof to him, together with all damage and loss which he may sustain by withholding of possession of the land or tenement demanded, and by any injury done thereto during such withholding with all costs. Upon final judgment for the plaintiff, all money then due to him may be recovered in an action on the bond.
Section 6A. If the action is for the possession of land after foreclosure of a tax title thereon, the condition of the bond shall be for the entry of the action and payment to the plaintiff, if final judgment is in his favor, of all costs and of a reasonable amount as rent of the land from the day when the tax title was foreclosed until possession of the land is obtained by the plaintiff, and of all damage and loss which he may sustain by the withholding of possession of the land or tenements demanded and by any injury done thereto during such withholding.
Section 7. The judgment in an action under this chapter shall not be a bar to any action thereafter brought by either party to recover the land or tenements in question, or to recover damages for any trespass thereon; but the amount recovered for rent under section five shall be deducted in any assessment of damages in such subsequent action by the original plaintiff.
Section 8. There shall be no recovery under this chapter of any land or tenements of which the defendant, his ancestors or those under whom he holds the land or tenements have been in quiet possession for three years next before the commencement of the action unless the defendant’s estate therein is ended.
presumptions and burden of proof; procedures Section 8A. In any action under this chapter to recover possession of any premises rented or leased for dwelling purposes, brought pursuant to a notice to quit for nonpayment of rent, or where the tenancy has been terminated without fault of the tenant or occupant, the tenant or occupant shall be entitled to raise, by defense or counterclaim, any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law. The amounts which the tenant or occupant may claim hereunder shall include, but shall not be limited to, the difference between the agreed upon rent and the fair value of the use and occupation of the premises, and any amounts reasonably spent by the tenant or occupant pursuant to section one hundred and twenty-seven L of chapter one hundred and eleven and such other damages as may be authorized by any law having as its objective the regulation of residential premises.
Whenever any counterclaim or claim of defense under this section is based on any allegation concerning the condition of the premises or the services or equipment provided therein, the tenant or occupant shall not be entitled to relief under this section unless: (1) the owner or his agents, servants, or employees, or the person to whom the tenant or occupant customarily paid his rent knew of such conditions before the tenant or occupant was in arrears in his rent; (2) the plaintiff does not show that such conditions were caused by the tenant or occupant or any other person acting under his control; except that the defendant shall have the burden of proving that any violation appearing solely within that portion of the premises under his control and not by its nature reasonably attributable to any action or failure to act of the plaintiff was not so caused; (3) the premises are not situated in a hotel or motel, nor in a lodging house or rooming house wherein the occupant has maintained such occupancy for less than three consecutive months; and (4) the plaintiff does not show that the conditions complained of cannot be remedied without the premises being vacated; provided, however, that nothing in this clause shall be construed to deprive the tenant or occupant of relief under this section when the premises are temporarily vacated for purposes of removal or covering of paint, plaster, soil or other accessible materials containing dangerous levels of lead pursuant to section one hundred and ninety-seven of chapter one hundred and eleven.
Proof that the premises are in violation of the standard of fitness for human habitation established under the state sanitary code, the state building code, or any other ordinance, by-law, rule or regulation establishing such standards and that such conditions may endanger or materially impair the health, safety or well-being of a person occupying the premises shall create a presumption that conditions existed in the premises entitling the tenant or occupant to a counterclaim or defense under this section. Proof of written notice to the owner or his agents, servants, or employees, or to the person to whom the tenant or occupant customarily paid his rent, of an inspection of the premises, issued by the board of health, or in the city of Boston by the commissioner of housing inspection, or by any other agency having like powers of inspection relative to the condition of residential premises, shall create a presumption that on the date such notice was received, such person knew of the conditions revealed by such inspection and mentioned in such notice. A copy of an inspection report issued by any such agency, certified under the penalties of perjury by the official who inspected the premises, shall be admissible in evidence and shall be prima facie evidence of the facts stated therein.
There shall be no recovery of possession pursuant to this chapter pending final disposition of the plaintiff’s action if the court finds that the requirements of the second paragraph have been met. The court after hearing the case may require the tenant or occupant claiming under this section to pay to the clerk of the court the fair value of the use and occupation of the premises less the amount awarded the tenant or occupant for any claim under this section, or to make a deposit with the clerk of such amount or such installments thereof from time to time as the court may direct, for the occupation of the premises. In determining said fair value, the court shall consider any evidence relative to the effect of any conditions claimed upon the use and occupation of residential premises. Such funds may be expended for the repair of the premises by such persons as the court after a hearing may direct, including if appropriate a receiver appointed as provided in section one hundred and twenty-seven H of chapter one hundred and eleven. When all of the conditions found by the court have been corrected, the court shall direct that the balance of funds, if any, remaining with the clerk be paid to the landlord. Any tenant or occupant intending to invoke the provisions of this section may, after commencement of an action under this chapter by the landlord, voluntarily deposit with the clerk any amount for rent or for use and occupation which may be in dispute, and such payments shall be held by the clerk subject to the provisions of this paragraph.
There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section. If the amount found to be due the landlord exceeds the amount found to be due the tenant or occupant, there shall be no recovery of possession if the tenant or occupant, within one week after having received written notice from the court of the balance due, pays to the clerk the balance due the landlord, together with interest and costs of suit, less any credit due the tenant or occupant for funds already paid by him to the clerk under this section. In such event, no judgment shall enter until after the expiration of the time for such payment and the tenant has failed to make such payment. Any such payment received by the clerk shall be held by him subject to the provisions of the preceding paragraph.
Any provision of any rental agreement purporting to waive the provisions of this section shall be deemed to be against public policy and void. The provisions of section two A and of section eighteen of chapter one hundred and eighty-six shall apply to any tenant or occupant who invokes the provisions of this section.
Section 9. In an action of summary process to recover possession of premises occupied for dwelling purposes, other than a room in a hotel, or a dwelling unit in a lodging house or rooming house wherein the occupant has maintained such occupancy for less than three consecutive months, where a tenancy has been terminated without fault of the tenant, either by operation of law or by act of the landlord, except by a notice to quit for nonpayment of rent as provided in section twelve of chapter one hundred and eighty-six, a stay or stays of judgment and execution may be granted, as hereinafter provided, for a period not exceeding six months or for periods not exceeding six months in the aggregate, or, for a period not exceeding twelve months or for periods not exceeding twelve months in the aggregate in the case of premises occupied by a handicapped person or an individual sixty years of age or older, as the court may deem just and reasonable, upon application of the tenant or the surviving spouse, parent or child of a deceased tenant if such spouse, parent or child occupied said premises for dwelling purposes at the time when said tenancy was terminated and such occupancy was not in violation of the terms of the tenancy; provided, however, that a stay or stays of judgment and execution in the case of premises occupied by an employee of a farmer conditioned upon his employment by such farmer and which employment has been legally terminated shall not be granted for a period exceeding two months or for periods exceeding two months in the aggregate. For the purpose of this section, the words “handicapped person” shall mean a person who:(a) has a physical or mental impairment which substantially limits such person’s ability to care for himself, perform manual tasks, walk, see, hear, speak, breathe, learn or work; or(b) has a physical or mental impairment which significantly limits the housing appropriate for such person or which significantly limits such person’s ability to seek new housing; or(c) would be eligible for housing for handicapped persons under the provisions of chapter one hundred and twenty-one B.
Chapter 240: Section 1. Petition to compel adverse claimant to try title Section 1. If the record title of land is clouded by an adverse claim, or by the possibility thereof, a person in possession of such land claiming an estate of freehold therein or an unexpired term of not less than ten years, and a person who by force of the covenants in a deed or otherwise may be liable in damages, if such claim should be sustained, may file a petition in the land court stating his interest, describing the land, the claims and the possible adverse claimants so far as known to him, and praying that such claimants may be summoned to show cause why they should not bring an action to try such claim. If no better description can be given, they may be described generally, as the heirs of A B or the like. Two or more persons having separate and distinct parcels of land in the same county and holding under the same source of title, or persons having separate and distinct interests in the same parcel or parcels, may join in a petition against the same supposed claimants. If the supposed claimants are residents of the commonwealth, the petition may be inserted like a declaration in a writ, and served by a copy, like a writ of original summons. Whoever is in the enjoyment of an easement shall be held to be in possession of land within the meaning of this section.
Chapter 240: Section 10. Proceeding in rem; effect of judgment Section 10. After all the defendants have been served with process or notified as provided in section seven and after the appointment of a guardian ad litem or next friend, if such appointment has been made, the court may proceed as though all defendants had been actually served with process. Such action shall be a proceeding in rem against the land, and a judgment establishing or declaring the validity, nature or extent of the plaintiff’s title may be entered, and shall operate directly on the land and have the force of a release made by or on behalf of all defendants of all claims inconsistent with the title established or declared thereby. This and the four preceding sections shall not prevent the court from also exercising jurisdiction in personam against defendants actually served with process who are personally amenable to its judgments.
Chapter 240: Section 10A. Restrictions on land; determination; jurisdiction; petition Section 10A. The superior court and the land court shall have concurrent jurisdiction of a civil action by any person or persons claiming an estate of freehold, or an unexpired term of not less than ten years, in land subject to a restriction described in section twenty-six of chapter one hundred and eighty-four, to determine and declare whether and in what manner and to what extent and for the benefit of what land the restriction is then enforceable, whether or not a violation has occurred or is threatened. The complaint shall state the names and addresses, so far as known to the plaintiff or plaintiffs, of the owners of the subject parcels as to which the determination is sought, of the owners of any benefited land and of any persons benefited other than persons interested in benefited land. There shall be filed therewith (1) a certified copy of the instrument or instruments imposing the restriction, or of a representative instrument if there are many and the complaint includes a summary of the remainder, and (2) a plan or sketch showing the approximate locations of the parcels as to which the determination is sought, and the other parcel or parcels, if any, which may have the benefit of the restriction, and the ways, public or open to public use, upon which the respective parcels abut or nearest thereto, and the street numbers, if any, of such parcels.
Chapter 240: Section 10B. Notice of proceedings; parties Section 10B. The court shall, after consideration of the complaint, instrument or instruments and plan or sketch, and such further documents or evidence as it may require, prescribe the form of notice to be given, the persons to be named or described therein, the manner of service of the notice, and the proof to be required of such service. The court may (1) permit service by registered mail on any person, (2) permit names and addresses of owners to be given from the last assessments for local taxation and record search for subsequent changes, (3) require notice to be published in a newspaper or posted on the subject land or both, (4) name as representative of all persons entitled to enforce the restriction, if it benefits more than four parcels, the owners of the benefited land abutting the subject parcel or parcels and of such additional benefited land in or facing the same block or blocks or in the same vicinity as it deems appropriate, describing the remaining persons generally as the owners of certain identified land and permitting service upon them by publication only, (5) order other or additional notice at any time as it deems most effectual, and (6) if it finds that there are persons benefited but not actually served and for whom others served are not sufficiently representative, appoint a disinterested person to represent them and order costs thereof paid by the plaintiff or plaintiffs. Any person entitled to enforce the restriction, whether or not named or described in the notice, may become a party to the proceeding by filing answer within the time specified by the notice or by the court.
Chapter 240: Section 10C. Determination of restrictions; manner Section 10C. Any determination or declaration that the restriction is or is not enforceable, or is enforceable only in a certain manner or to a certain extent or for the benefit of certain land shall be in rem and operate directly upon the subject land, and be binding upon all persons entitled to enforce the restriction thereon. If the court determines that the restriction is enforceable only by award of money damages it shall, whether or not a violation has occurred, make such award according to general rules of equity, and upon payment thereof determine that the land is free of the restriction.
Chapter 240: Section 11. Petition in land court to determine encumbrances Section 11. If the title to land appears of record to be affected by a possible condition, restriction, reservation, stipulation or agreement made or imposed more than thirty years prior to the commencement of the proceedings hereinafter provided for, a person having a freehold estate, vested or contingent, in possession, reversion or remainder, in said land, or in any undivided or any aliquot part thereof, or any interest therein which may become a freehold estate, and any person who has conveyed such estate or any such interest therein with covenants of title or warranty, may file a petition on oath in the land court to determine the validity, or define the nature and extent, of such possible condition or other encumbrance, against any person who might be entitled in any event to enforce it or avail himself thereof. Two or more persons owning in severalty different portions of such estate or different interests therein may join in such petition, or two or more such defects of the same general character in the title to the same parcel of land or to different portions of the same parcel of land may be set forth in the same petition, and if the petition is contested the court shall make an appropriate order for separate issues.
Chapter 240: Section 12. Unknown, etc.
, respondents; describing; amending petition Section 12. If it is averred in the petition that there are necessary or proper respondents whose names are unknown to the petitioner, they may be described generally, as heirs or devisees of a person deceased, as persons claiming under certain persons named, as the owners of certain land, or otherwise, and if it is so averred that the true name of a respondent cannot be ascertained, he shall be described as accurately as practicable. If it is so averred that there are classes of necessary or proper respondents whom it is impracticable and unnecessary to name and to serve with process individually, they may be described generally. The court may, if in its opinion the petitioner can and should do so, require him by amendment to name or describe respondents more particularly.
Chapter 240: Section 13. Respondents upon whom service cannot be made; notice; appointing agents Section 13. The court shall prescribe the notice to be given to non-resident respondents, to respondents whose residences are unknown, to unknown or unnamed respondents, and to any other respondents upon whom for any reason service cannot be made. If the court finds that there are respondents to be affected by the decree, who have not had actual notice of the petition, it shall appoint a disinterested person to act for them.
Chapter 240: Section 14. Jurisdiction; hearings; decrees; costs Section 14. Upon service of such notice, the court shall have jurisdiction of all persons made respondents to the petition in the manner above provided, and shall, upon a hearing, make a decree determining the validity, nature or extent of any such possible condition or other encumbrance, which shall be effectual to exclude all the respondents from any claim thereunder contrary to such determination, and shall have the same effect as a release by such respondents of such claims. The court may award costs in its discretion.
Chapter 240: Section 14A. Municipal zoning ordinances, etc.
; petition for judicial determination of validity Section 14A. The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition. The right to file and prosecute such a petition shall not be affected by the fact that no permit or license to erect structures or to alter, improve or repair existing structures on such land has been applied for, nor by the fact that no architects’ plans or drawings for such erection, alteration, improvement or repair have been prepared. The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not.
Chapter 240: Section 15. Petition in land court; notice Section 15. If the record title of land or of easements or rights in land held and possessed in fee simple is encumbered by an undischarged mortgage or a mortgage not properly or legally discharged of record, and the mortgagor and those having his estate therein have been in uninterrupted possession of the land or exercising the rights in easements or other rights in land, either for any period of twenty years after the expiration of the time limited in the mortgage for the full performance of the condition thereof, or for any period of twenty years after the date of a mortgage not given to secure the payment of money or a debt but to secure the mortgagee against a contingent liability which has so ceased to exist that no person will be prejudiced by the discharge thereof, the mortgagor, or those having his estate in the land, or exercising the rights in easements, or any person named in section eleven, may file a petition in the land court; and if, after such notice by publication or otherwise as the court orders, no evidence is offered of a payment on account of the debt secured by said mortgage within such period of twenty years after the expiration of the time limited for the performance of the condition thereof, or of any other act within said time in recognition of its existence as a valid mortgage, or if the court finds that such contingent liability has ceased to exist and that the mortgage ought to be discharged, it may enter a decree, reciting the facts and findings, which shall, within thirty days after its entry, be recorded in the registry of deeds for the county or district where the land lies, and no action to enforce a title under said mortgage shall thereafter be maintained. Two or more persons owning in severalty different portions or different interests, such as are described in section eleven, in the land subject to the mortgage may join in one petition, and two or more defects arising under different mortgages affecting one parcel of land may be set forth in the same petition. If the petition is contested, the court shall make an appropriate order for separate issues.
Chapter 240: Section 16. Jurisdiction of land court; determining enforceability of restrictions Section 16. The land court shall have jurisdiction upon a petition to register land, or if land has been previously registered, upon a supplemental petition by the owner thereof, to hear and determine the question whether or not equitable restrictions arising under contracts, deeds or other instruments limiting or restraining the use or the manner of using land are enforceable in whole or in part.
Chapter 240: Section 17. Restrictions injurious to public interests; registration of land; damages Section 17. If the land court shall find and determine, after hearing, that the enforcement of any of such restrictions or limitations would be injurious to the public interests, it shall register title to the land free from said restrictions as and to the extent required by the public interests, or, in case of registered land, shall enter an appropriate order therefor; provided, that if the land court shall find and determine that any of such restrictions or limitations, though they ought not to be enforced, are nevertheless valid and have not become inoperative, it shall, before registering said land free from said restrictions or limitations or any of them, ascertain and determine whether any person or property entitled to the benefits of any of such restrictions or limitations may be damaged by the non-enforcement thereof. If so, the case shall be referred to the superior court for the assessment of such damages. Chapter seventy-nine, so far as applicable, shall govern such assessment. The amount of any damages so assessed, with interest thereon from the date of such assessment to the date of payment at the rate allowed by law upon judgments, may be paid by the owner of the land into the superior court at any time after such assessment for the benefit of the persons or property entitled thereto; and, if so paid, the clerk of the superior court shall so certify to the land court, and shall pay the sum so received by him to the parties to whom it has been awarded. If no damages shall be awarded the clerk of the superior court shall certify that fact to the land court. Upon such certification from the clerk of the superior court of the final determination of such proceedings for assessment and of the payment of any damages therein assessed, the title may be registered free from any restrictions, or in case of registered land may be freed therefrom by the entry of such order as may be appropriate therefor.
Chapter 240: Section 18. Appeal Section 18. Any party aggrieved by a finding or decision of the land court that the enforcement of any such restrictions or limitations would be injurious to the public interests may appeal therefrom to the supreme judicial court, which may draw from the facts and instruments stated in the record, findings or decision any inferences of fact that might have been drawn therefrom at a trial, and reverse or order such modification of said findings or decision as justice may require. The appeal shall be taken within twenty days after receipt of notice of the filing of such finding or decision, and further proceedings under the preceding section shall be suspended until after the determination of said appeal. If an appeal is not duly prosecuted, the finding or decision shall stand as if no appeal had been taken.
Chapter 240: Section 19. Petition to land court Section 19. One or more persons holding land or flats adjacent to or covered by high water may apply by petition to the land court for the settlement and determination of the lines and boundaries of their ownership therein.
Chapter 240: Section 2. Proceedings upon petition Section 2. If the petition is not so served, the court shall order notice thereof by publication to the supposed claimants, whether residents or non-residents of the commonwealth. Such notice shall bind all the world, but the court may also require personal or other notice, and if, upon return of the order of notice duly executed, the parties notified do not appear within the time limited or, having appeared, disobey the lawful order of the court to try their claim, the court shall enter a decree that they be forever barred from having or enforcing any such claim adversely to the petitioner, his heirs or assigns, in the land described, and may require them to execute, within such time as the court orders, a conveyance, release or acquittance duly relinquishing the same. A judgment or decree under this section may require the giving of a bond to respond to any action brought under section four within five years after the entry of such judgment or decree.
Chapter 240: Section 20. Proceedings Section 20. Upon such petition the court may by a warrant appoint one or more commissioners who shall, before entering upon their duties, be sworn to faithfully and impartially execute the warrant, and a certificate of such oath shall be made on the warrant by the person administering it. The commissioners shall notify all persons interested, by personal service or by publication as the court orders, to appear at a time and place named and be heard relative to a proposed survey of such flats, and thereafter shall survey the flats of the petitioners and all adjacent flats owned by other parties whose rights may be affected by a determination of the lines of the flats of the petitioners, shall determine the boundary lines thereof and report to the court the boundaries established for each owner, with a plan of the several portions of flats showing the lines established for each owner, which, after its approval, shall by order of the court be recorded in the registry of deeds for the county or district where said flats lie. The proceedings upon such petition shall be according to sections two, four, six, seven and eight of chapter two hundred and forty-one, so far as applicable thereto.
Chapter 240: Section 21. Report and plan of commissioners; effect Section 21. When the report and plan of said commissioners has been accepted by the court and recorded as aforesaid, it shall forever fix and determine the rights of all persons and parties, except where definite boundary lines have been established by parties legally authorized to establish them.
Chapter 240: Section 22. Costs Section 22. The expenses and charges of the commissioners shall be allowed by the court; the other costs shall be taxed in the usual manner, and the whole shall be apportioned by the court among all parties interested in the determination of the boundary lines in such flats, and shall be paid in proportion to the value of the interests which they respectively hold therein.
Chapter 240: Section 23. Determination of boundaries by court Section 23. Instead of appointing the commissioners authorized by section twenty, the court may exercise the powers and duties of such commissioners.
Chapter 240: Section 24. Parties; subsequent purchasers as Section 24. Whoever, during the pendency of proceedings for the division of flats, acquires by purchase, devise or descent, or by the enforcement of a mortgage or lien, an interest or title in or to any flats which are the subject matter of such proceedings, may by order of the court be made a party to such proceedings, and shall be chargeable with such share of the expenses as the court orders.
Chapter 240: Section 25. Boundaries determined concurrently with registration Section 25. A petitioner for registration may in his petition request the court to proceed under sections nineteen to twenty-four, inclusive, concurrently with the registration proceedings, and the court may comply with the request, if such compliance seems conducive to justice and the rights of all parties.
Chapter 240: Section 26. Rights of commonwealth Section 26. Proceedings under sections nineteen to twenty-five, inclusive, shall not affect any right or title of the commonwealth to any land or flats, unless it consents to become a party thereto.
ESTATE UNDER WRITTEN INSTRUMENTS Chapter 240: Section 27. Fiduciaries, etc.
; establishing power or authority Section 27. Any person having, in a representative or fiduciary capacity or otherwise, a power or authority created by any written instrument to sell, convey, mortgage or otherwise transfer any interest in real estate may file a petition in the land court setting forth the act or acts which he proposes to do by virtue of such power or authority, and praying that his power or authority under such written instrument to do such act or acts may be established.
ESTATE UNDER WRITTEN INSTRUMENTS Chapter 240: Section 28. Determination by court Section 28. Upon such petition, after such notice as the court may direct, it may determine the existence and extent of the power or authority of the petitioner to do such act or acts, including the existence of the necessity for its exercise and also any other fact or circumstance required for the exercise of such power or authority.
Chapter 240: Section 29. Procedure under this chapter Section 29. Except as otherwise provided, procedure in the land court under this chapter shall be that provided by sections fifteen to twenty-five, inclusive, of chapter one hundred and eighty-five and by the Massachusetts Rules of Civil Procedure.
Chapter 240: Section 3. Proceedings upon appearance Section 3. If the persons notified or summoned appear and disclaim all right and title adverse to the petitioner, they shall recover costs. If they claim title, they shall by answer show why they should not be required to bring an action to try such title, and the court shall enter an appropriate decree relative to bringing and prosecuting such action. If the party or parties against whom a judgment or decree for a conveyance, release or acquittance may be rendered by any court in the commonwealth do not comply therewith, within the time therein limited, such judgment or decree shall, subject to the following section, have the same effect as if the conveyance, release or acquittance had been executed conformably thereto.
Chapter 240: Section 4. Parties without actual notice; remedies Section 4. A party against whom, without other notice than publication in a newspaper, a judgment or decree has been rendered under section two and whose right is barred thereby, may recover from the person in whose favor such judgment or decree was entered, or from his executors, administrators, heirs or devisees, in accordance with chapter one hundred and ninety-seven, the value at the time action is brought of any interest or right, except of improvements made by the defendants, of which he may have been deprived by such judgment or decree, unless at that time an action which, but for such judgment or decree, he might have maintained for the recovery of such interest or the enforcement of such right would have been barred by the statute of limitations.
Chapter 240: Section 5. Application of preceding sections Section 5. The four preceding sections shall not apply to any property, right, title or interest of the commonwealth.
Chapter 240: Section 6. Actions in supreme judicial, superior or land courts Section 6. If, in a civil action in the supreme judicial or the superior court, or in the land court, to quiet or establish the title to land situated in the commonwealth or to remove a cloud from the title thereto, it is sought to determine the claims or rights of persons unascertained, not in being, unknown or out of the commonwealth, or who cannot be actually served with process and made personally amenable to the judgment of the court, such persons may be made defendants and, if they are unascertained, not in being or unknown, may be described generally, as the heirs or legal representatives of AB, or such persons as shall become heirs, devisees or appointees of CD, a living person, or persons claiming under AB. It shall be unnecessary for the maintenance of such action that the defendants shall have a claim or the possibility of a claim resting upon an instrument the cancellation or surrender of which would afford the relief desired; but it shall be sufficient that they claim or may claim by purchase, descent or otherwise, some right, title, interest or estate in the land which is the subject of the action and that their claim depends upon the construction of a written instrument or cannot be met by the plaintiffs without the production of evidence. Two or more persons claiming to own separate and distinct parcels of land in the same county by titles derived from a common source, or two or more persons having separate and distinct interests in the same parcel, may join as plaintiffs in any action brought under this section.
Chapter 240: Section 7. Notice Section 7. If in such action the court finds that actual service cannot be, or has not been, made upon a defendant, it may at the request of the plaintiff order notice of the action to be posted in a conspicuous place on the land or to be published in a newspaper within or without the commonwealth, or both, or to be given in such other manner as it considers most effectual, and may also require personal notice to be given. Notice given under this section shall be constructive service on all the defendants.
Chapter 240: Section 8. Guardian ad litem Section 8. If, after notice has been given or served as provided in the preceding section and the time limited in such notice for the appearance of the defendants has expired, the court finds that there are or may be defendants not actually served with process within the commonwealth who have not appeared in the action, it may of its own motion, or on the representation of any party, appoint a guardian ad litem or next friend of any such defendant, and if any such defendants have or may have conflicting interests, it may appoint different guardians ad litem or next friends to represent them.
Chapter 240: Section 9. Guardians ad litem; compensation and expenses Section 9. The cost of appearance of any such guardian ad litem or next friend, including compensation of his counsel, shall be determined by the court and paid by the plaintiff, against whom execution may issue therefor in favor of the guardian ad litem or next friend.
Section 1. Any person, except a tenant by the entirety, owning a present undivided legal estate in land, not subject to redemption, shall be entitled to have partition in the manner hereinafter provided. If such estate is in fee, he shall be entitled to partition in fee; if a life estate or a term for years, he shall be entitled to partition thereof to continue so long as his estate endures. A life tenant or a tenant for years of whose term at least twenty years remain unexpired may, in the discretion of the court, have partition of the fee. The existence of a lease of the whole or a part of the land to be divided shall not prevent partition, but such partition shall not disturb possession of a lessee under a lease covering the interests of all the co-tenants.
Section 10. If it is found that the petitioner is entitled to have partition for the share claimed or for any less share, the court shall make the interlocutory decree that partition be made, and therein determine the persons to whom and the proportions in which the shares shall be set off. The petition shall not be defeated by the payment by a party of a mortgage, lien, tax or other encumbrance upon the land, if the other parties are entitled to redeem from such payment; but the interlocutory decree shall contain such terms and conditions relative to redemption by a contribution on account of any such payment as the court may deem equitable.
Section 11. If the ownership of any share appears to be in dispute or uncertain, the court may, in its discretion, without determination of such question, order the partition to proceed by setting off the remaining shares, or by sale. The land not set off, or the proceeds of the share in dispute or uncertain, may be left for the parties entitled thereto in a further partition or distribution in such manner and upon such proceedings as the court may order. The interlocutory decree shall not preclude the parties sharing in the partition from any share to which they may be entitled in a subsequent partition or distribution.
Section 12. If the court determines the petitioner entitled to partition, it shall thereupon appoint one or more disinterested commissioners and issue a warrant to them to make partition. The commissioners, before entering upon their duties, shall be sworn to execute the warrant faithfully and impartially, and a certificate of the oath shall be made on the warrant by the person administering it. They shall give at least seven days’ notice of the time and place appointed for making the partition, either personally or by registered mail, to all known persons interested therein, and shall make and sign a report of their doings and return it with their warrant.
Section 13. If the land lies in different counties, the court may in its discretion issue separate warrants and appoint different commissioners for each county, or for two or more counties together, in which case the partition shall be made of the land in each county, or group of counties, as if there were no other land to be divided.
Section 14. If a part of the land cannot be divided without great inconvenience to the owners, or is of greater value than the share of any party, or if all the land cannot be divided without such inconvenience, the whole or any part thereof may be set off to any one or more of the parties, with his or their consent, upon payment by him or them to any one or more of the others of such amounts of money as the commissioners award to make the partition just and equal.
Section 15. If money is awarded to make the partition just and equal, the court shall be satisfied, before the partition is confirmed, that the money has been paid or secured to the parties entitled thereto. Money awarded on account of shares in dispute or uncertain may be ordered to be deposited in the manner provided in section thirty-four.
amendments; final decrees; recording Section 16. The court may after hearing accept and confirm the return of the commissioners, or set it aside and commit the case anew to the same or to other commissioners having the same powers as those originally appointed; or it may, after a hearing, amend the return, and accept and confirm it as amended. After the return of the commissioners has been accepted and confirmed, the court shall thereupon enter a decree that the partition be firm and effectual forever. If the partition is by division, the commissioners shall record a certified copy of the decree in the registry of deeds for each district where any of the land lies, together with so much of the return, as finally confirmed, as relates thereto; or if any part of the land is registered land, they shall in recording the same comply with section 92 of chapter 185.
omitted parties; improper descriptions Section 17. The court may at any time direct an examination of the title, or the making of a plan, of any land included in the petition, or such investigation relating to the description or title of any of it as seems useful or desirable for its better division or sale. If it appears from the report of a title examiner or from any other source that there are necessary parties, as defined in section six, who were not made parties to the petition, and have not appeared, the court shall, before proceeding further, cause the petitioner to amend his petition by making such persons parties, and to give notice to them in the manner provided in section eight. The court may also cause notice to be given to any encumbrancer whose interest may be disclosed by the examination or otherwise. If it appears at any stage of the proceedings that the land is improperly described, the court may, before proceeding further, require the petitioner to amend his petition by inserting a correct description.
Section 18. The partition by division, when confirmed and established by a final decree under section sixteen, or the sale if partition is made by sale, shall be conclusive upon all persons named in the petition or interested in the land therein described who appeared in the case or who waived notice or assented in writing to the same, or to whom due notice was given in accordance with section six or eight, or who were represented as provided in section nine, and upon all persons claiming through or under them or any of them, and, if the common title is derived through the settlement of the estate of a deceased person in any probate court within the commonwealth, upon all the heirs and devisees of such deceased person to whom the notice aforesaid was given or who were so represented, and upon all persons claiming through or under them.
shares; partitions by sale Section 19. A person who was not made a party and has not appeared, who claims the whole or any part of the share assigned to or left for any of the supposed co-tenants in the decree for partition, shall be concluded by the decree, so far as it relates to the partition and the assignment of the shares, as if he had been a party to the proceedings; but he may bring his action for the share claimed by him against the person to whom it was assigned or for whom it was left. Such action shall be brought against the tenant in possession, as if the demandant had originally claimed the specific parcel demanded instead of an undivided part of the land; and it may be brought within the time in which it might have been brought if no such decree for partition had been rendered. If partition is made by sale, the claimant may recover the share of the proceeds to which he is entitled by action against the persons to whom the proceeds were paid, or, before the payment, by a petition in equity in the court in which the partition was made, to which the commissioner or commissioners and all known claimants of the share shall be made parties defendant.
Section 2. Probate courts and the land court shall have concurrent jurisdiction of all petitions for partition. Any petition for partition may be filed in the probate court for any county where any part of the land included in the petition lies, or in the land court for any land within the commonwealth. The petition may include any or all of the common land within the commonwealth.
Section 20. A person who was not made a party and has not appeared and who claims part of the land as a co-tenant with any of those who were parties to the action, shall, if the share so claimed was unknown or not allowed and left for him in the process of partition, be concluded by the decree so far as it relates to the partition, but may, subject to section eighteen, bring an action for the share claimed by him against each of the persons holding any part of the land under the decree for partition; and, if he prevails, shall recover against each the same proportion of the part so held that he was entitled to claim out of all the land before the partition. If the partition was made by sale, he may in like manner recover his portion of the proceeds, as provided in the preceding section.
Section 21. A person who has not appeared and who claims to hold by title paramount to that under which the petitioner claims as a co-tenant shall not be concluded by the partition, but may maintain his action for the land against any or all of the parties, or persons holding under them, within the time in which he might have brought such action if the petition for partition had not been filed.
Section 22. The reasonable expenses and charges of partition proceedings, including examination of title and preparation of plan ordered by the court under section seventeen, and the fees of counsel, of the commissioners, and of all agents, guardians and other persons appointed to represent interests in accordance with section nine, shall be determined by the court, and in case of sale paid by the commissioners out of the proceeds; and in case of partition by division shall be paid by the petitioner, who shall be entitled to contribution from the parties to whom shares of the land are set off who take a vested, and not contingent, interest. Such contribution shall be in proportion to the interests of the parties unless the court finds a different proportion more equitable. Costs may also be awarded under section forty-five of chapter two hundred and fifteen. Execution may issue for said contribution and costs.
Section 23. If the court in which partition proceedings are pending finds that one of the co-tenants has erected any buildings or made other permanent improvements on the common land, it may, if justice and equity so require, award such compensation as it deems proper for the value of such buildings or other improvements, not exceeding, however, the actual amount by which the market value of the common land has been increased thereby; and in awarding such compensation the court may deduct any benefit which the party claiming compensation has received from the common land. The court may make orders and decrees for the enforcement or protection of any such claim, and in case of partition by division may order the improved part set off to the party who made the improvement, and the land divided as if the improvement had not been made.
compensation Section 24. If after a first partition improvements have been made on a part of the land which, by a new partition, is taken from the share of the party who made the improvements, he shall be entitled to compensation therefor, to be awarded and enforced as provided in the preceding section.
Section 25. The court in which a petition has been brought under this chapter shall have jurisdiction in equity over all matters relating to the partition, and, in case of sale, over the distribution of the proceeds thereof; also to hear and determine all matters of accounting between the parties to the petition in reference to the common land, and to appoint 1 or more receivers to take possession of the common land or any part thereof, and collect the rents and profits therefrom. The jurisdiction may be exercised upon petition according to the usual course of proceedings in that court. Such receiver shall give bond in such amount and with such sureties as the court shall order, and shall distribute the rents among the co-tenants, or otherwise hold or dispose of the same in such manner as the court shall determine by its decree.
Section 26. If a party named in the petition has died prior to the filing thereof, or dies during its pendency, and such fact did not appear during the proceedings, his heir or devisee shall be entitled to the share of land set off to him or his share of the proceeds of a sale. If his death is made known to the court during the proceedings, the share or portion formerly belonging to him may be assigned or set off in his name to be held and disposed of as if the partition had been made prior to his decease, and his heir or devisee may recover the portion assigned to him, or his share of the proceeds, by appropriate action. The court may, however, in any case arising hereunder, if there has been a sale, order his share of the proceeds to be paid to his personal representatives pending settlement of his estate, or deposited under section thirty-four to await their appointment.
Section 27. If a person to or for whom a part of the land has been set off is evicted by one who, at the time of the partition, had a paramount title to that parcel, but not to the whole land, the person so evicted may have a new partition of the remaining land not subject to the paramount title, as if partition had not been made.
Section 28. A person having a mortgage, attachment or other lien on the share of a co-tenant shall be concluded by the decree, so far as it relates to the partition and the assignment of the shares; but his lien shall remain in full force upon the part assigned to or left for such co-tenant, or, in the event of a sale, upon the share of such part owner in the proceeds, and may be enforced in the manner provided in section nineteen.
Section 29. A person holding land under a partition made under this chapter shall, in case of an eviction, be entitled to compensation for improvements made thereon, as provided in chapter two hundred and thirty-seven.
or more counties Section 3. If a case is begun in a probate court and the land is within the jurisdiction of the probate court in 2 or more counties, the court in which proceedings are first begun shall retain jurisdiction thereof, which shall exclude the jurisdiction of probate courts of other counties; but this shall not prevent the probate court in any other county where a part of the common land lies, not included in the original petition, from making partition thereof.
Section 30. The fact that a cotenant is, alone or jointly with others, as trustee or in any other representative capacity, the holder of the legal title to a share in which he has no beneficial interest shall not prevent partition.
Section 31. In partition proceedings the court may order the commissioners to sell and convey the whole or any part of the land which cannot be divided advantageously, upon such terms and conditions and with such securities for the proceeds of the sale as the court may order, and to distribute the proceeds so as to make the partition just and equal. The sale shall be made by public auction, after like notice as is required for the sale of land by an administrator, and the evidence thereof may be perpetuated in like manner by returns filed with the court in which the proceedings are had; or the sale may be a private sale, upon the terms as the court orders, if it finds after notice, as provided in section 8, and a hearing, or after receiving the written assent of all parties in interest, that the interests of all parties will be promoted thereby. If the sale is by auction, section nineteen of chapter two hundred and four shall apply thereto.
Section 32. If the commissioners, after making a sale in accordance with the preceding section, distribute the proceeds in accordance with the order or decree of the court before learning of any conveyance, mortgage, lien or other encumbrance of or upon the share of any of the joint owners, they shall not be liable to such claimant. If they are in doubt as to the existence or the validity of any such claim against the share of any co-tenant in the proceeds they may ask for instructions by the court.
penalties Section 33. Whoever receives any proceeds of a sale of land under this chapter after having sold or mortgaged his interest therein, or with knowledge that it has been attached or liened, without disclosing such fact to the commissioners or the court, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year.
Section 34. If the proceeds of a sale, or any share thereof, cannot be paid to the persons entitled thereto, the commissioners shall deposit the same in the name of the judge of probate for the county where the proceedings are had, or, in the case of the land court, the chief justice, in a savings bank or other like institution, or in a savings accounts in a trust company, or in paid-up shares and accounts of and in co-operative banks, or purchase with it in the name of the judge or justice a share account of a federal savings and loan association or a savings and loan association located in the commonwealth, as the court orders, to accumulate for the persons entitled thereto. The deposit or purchase shall be subject to sections twenty-five to twenty-eight, inclusive, of chapter two hundred and six, so far as applicable.
Section 35. If in any share there are estates in succession, the court making partition may, upon petition of any party interested, appoint a trustee to receive, hold, manage and invest the proceeds of the sale of such share. The annual income of such share shall be paid to the owner of each successive estate for years or for life until it terminates, and the principal, after termination of prior estates, shall be paid to the parties entitled to the fee. The trustee shall, before entering upon the duties of his trust, give to the judge of probate and his successors or, in the case of the land court, the chief justice and his successors, a bond, with sufficient surety and in a penal sum as the court orders, conditioned for the faithful performance of his duties, and, upon breach of the condition, an action may, by order of the court which holds the bond, be brought for the use of the persons interested in the trust property, as upon a bond of an administrator.
division Section 36. Joint tenants or tenants in common of a mill privilege, water right, or other incorporeal hereditament may be compelled to divide the same in the manner hereinbefore provided for the division of land. The commissioners appointed to make partition shall set forth in their return the best method of setting off to the several parties their respective shares, and thereupon the court may make such orders and decrees as might be made in equity. If any one of the joint owners so requests, the court shall order a sale, provided that a sale is feasible.
Section 37. Under the preceding section, partition may be made of the water of a natural stream, not navigable, the banks of which are owned by different riparian proprietors.
Section 4. The court may make partition of all or any portion of the land included in the petition of which the parties thereto are co-tenants; but if all of the common land is not included in the petition, the court may, upon request of any party thereto, seasonably filed, cause any other part of the common land to be included, unless a petition for partition thereof is pending in another county or in the land court.
Section 5. The court may set off to the petitioner his share, leaving the residue of the land for the persons entitled thereto, subject to a future partition; or it may set off to the persons entitled to the residue their respective shares therein. If two or more co-tenants consent to hold their shares undivided, such shares may be so set off.
Section 6. The petition shall set forth on oath the nature and extent of the share of each co-tenant, so far as known to the petitioner, stating whether he has an estate of inheritance, for life or for years, whether in possession, remainder or reversion, and whether vested or contingent. It shall contain a description of each parcel of land sufficiently specific for identification. If the common title is derived by will or inheritance from a common ancestor, the name of the testator or common ancestor shall be given; if under a deed, reference shall be made thereto. The petition shall be in the alternative, praying for division of the land or for the sale, either public or private, of all or any part thereof which the court may find cannot be advantageously divided. If a private sale is desired, the minimum sum for which the sale may be made shall be stated. Only persons having legal title to an estate for years, for life or in fee, whether in possession, reversion or remainder, shall be necessary or proper parties. Mortgagees, lienors, attaching creditors and other persons having or claiming encumbrances on the land shall not be parties, but shall be named in the petition and given such notice as the court may order, and shall be permitted to intervene so far as may be necessary to protect their interests in the land or to establish their rights in the proceeds of a sale.
Section 7. Upon the filing of a petition for partition, the petitioner shall forthwith cause to be filed, in the registry of deeds for each registry district where any of the land included in the petition lies, a notice of the same, containing a brief description of the land in such district included therein, and the names of all persons appearing in the petition as parties. If the proceedings are at any time amended, either by the inclusion of more land or by adding new parties, a further notice thereof shall be filed forthwith in the registry district where the land lies. If any part of the land is registered land, the petitioner shall, in filing said notices, comply with section eighty-six of chapter one hundred and eighty-five.
service Section 8. Notice shall be given by a citation containing a brief description of the land, and the minimum price in case it is desired to sell the land or any part thereof at private sale. The citation shall be addressed to all known respondents by name, and, in addition, in express terms to all other persons interested. Said notice shall be given to each respondent, whether within or without the commonwealth, whose address is known, by serving the same, either personally or by registered mail, fourteen days at least before the return day; and to each respondent whose address is not known by mailing a copy thereof to the last known address of such party fourteen days at least before the return day, and by publishing the notice once in each of three successive weeks in such newspaper as the court shall order, the last publication to be one day at least before the return day. Proof of service and notice shall be made by affidavit, setting forth the particulars of the service on each respondent, and any other notice given, and if actual notice has been given by registered mail the affidavit shall so state. The court may in its discretion cause further notice to be given.
incompetent or undetermined parties Section 9. If any party named in the petition has not been served personally with the citation and has not appeared, or is a minor or under other disability and has no guardian or other legal representative within the commonwealth, or if any person whose name is unknown, or who is unascertained or not in being, appears by the record in the case to have an estate, vested or contingent, as a co-tenant of the land of which partition is sought, the court shall appoint a suitable person to act for him in the proceedings.
Section 1. If a tenant in dower, by the curtesy, for life or for years commits or suffers waste on the land so held, the person having the next immediate estate of inheritance may have an action of waste against such tenant to recover the place wasted and the amount of the damage, and such action shall be subject to the provisions of law relative to trial by jury. An heir may bring such action for waste done in the lifetime of his ancestor.
entitled to maintain Section 2. A person having the next immediate estate of inheritance, or a remainder or reversion in fee simple or fee tail after an intervening life estate, or having a remainder or reversion for life or for years, may have an action of tort in the nature of waste to recover the amount of the damage against the tenants named in the preceding section.
maintainable against representatives Section 3. If such action in tort was commenced in the lifetime of the tenant, it may be prosecuted against his executor or administrator or it may be commenced against such executor or administrator for waste committed or suffered in the tenant’s lifetime.
Section 4. A joint tenant or tenant in common of undivided land who cuts down, destroys or carries away trees, timber, wood or underwood standing or lying on such land, or digs up or carries away stone, ore or other valuable thing found there, or commits any other waste, without first giving thirty days’ notice in writing under his hand to all other persons interested therein or to their respective agents or attorneys of his intention to enter upon and improve the land, or who does any of said acts during the pendency of a petition or other proceeding for the partition of the land shall forfeit three times the amount of the damages assessed therefor.
Section 5. Such damages may be recovered in tort by one or more of the other co-tenants, without naming any one except the plaintiff, one half to the use of the co-tenants who associate themselves with the plaintiff in bringing the action, and the other half to their use and that of all the other co-tenants except the defendant, to be divided among them in each class in proportion to the value of their respective interests in the land.
action for recovery of land Section 6. If, during the pendency of an action for the recovery of land, the tenant or person in possession, with knowledge thereof, commits waste, the demandant, if he recovers judgment, may afterward recover in tort three times the amount of the damages assessed therefor.
Section 7. A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only.
destruction; treble damages Section 7A. Any person who, without permission, willfully enters the agricultural or horticultural land of another, including, but not limited to, an orchard, garden, nursery, cranberry bog, field, or vineyard, and carries away, takes, steals, mutilates, destroys, damages, causes to be damaged, or cuts any tree, shrub, fruit, berry, vegetable, grain, grass, hay, vine, plant, flower, or any other agricultural commodity defined pursuant to section one A of chapter one hundred and twenty-eight shall be liable to the owner of said land in tort for three times the amount of the damages assessed therefor.
Section 8. A trespasser, if the trespass was casual and involuntary, may, before an action is commenced, tender the damages and, upon action brought, disclaim title and allege the tender and that the trespass was casual and involuntary; and if it is found that the allegations are true and if he has deposited with the court the amount of his tender at the time of filing his answer and the damages assessed are not more than the amount tendered, he shall recover costs. Such tender may, subject to the same provisions, be made after the action has been commenced with like effect, if it covers the costs to the time of tender.
Section 9. If a person whose land is attached commits waste thereon or threatens or prepares so to do or if a real action is brought to foreclose a mortgage or for possession thereunder or for the recovery of land and any waste, or act in the nature of waste, on the land has been committed or threatened by the tenant or any one who claims under him or acts by his permission, the court in which the action is pending shall, upon motion of the plaintiff or demandant, have jurisdiction in equity to enjoin such waste or act. In such case the court may require the plaintiff or demandant to give bond in such sum as it orders to the adverse party, with sufficient sureties, conditioned, if the injunction is dissolved, to pay all damages arising from the issuing thereof.
Section 1. If the plaintiff prevails in tort for a nuisance, the court may, in addition to the judgment for damages and costs, enter judgment that the nuisance be abated and removed and may issue execution for the damages and costs and a separate warrant to the proper officer, requiring him to abate and remove the nuisance at the expense of the defendant as public and common nuisances are abated and removed.
Section 2. The court may, upon motion of the defendant, order a stay of such warrant for not more than six months, to give him opportunity to remove the nuisance, upon his undertaking so to do within the time ordered.
Section 3. If the plaintiff recovers judgment in a second action for the continuance or repetition of the same nuisance, he shall be entitled as of right to a judgment for abatement and removal and to a warrant as provided in section one, if judgment in the former action was in his favor and whether it included an order for abatement or removal or not.
Section 4. The expense of abatement and removal shall be collected by the officer as damages and costs are collected upon execution, except that the materials of buildings, fences or other things so removed may be sold by the officer as goods are sold on execution for the payment of debts. The officer shall apply the proceeds to the expense of the removal and shall upon demand pay over the remainder to the defendant. If the proceeds are insufficient to defray the expenses, the officer shall collect the deficit from the defendant.
Section 5. The superior court may in an action for a nuisance enjoin such nuisance.
Section 6. No action in nuisance may be maintained against any person or entity resulting from the operation of a farm or any ancillary or related activities thereof, if said operation is an ordinary aspect of said farming operation or ancillary or related activity; provided, however, that said farm shall have been in operation for more than one year. This section shall not apply if the nuisance is determined to exist as the result of negligent conduct or actions inconsistent with generally accepted agricultural practices. For the purposes of this section, “agriculture” and “farming” shall be as defined in section one A of chapter one hundred and twenty-eight.
Chapter 244: Section 1. Foreclosure by entry or action; continued possession Section 1. A mortgagee may, after breach of condition of a mortgage of land, recover possession of the land mortgaged by an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming it, or by action under this chapter; and possession so obtained, if continued peaceably for three years from the date of recording of the memorandum or certificate as provided in section two, shall forever foreclose the right of redemption.
Chapter 244: Section 10. Foreclosure and redemption where entry made before breach Section 10. A mortgagee, or a person claiming under him in possession under the preceding section, may, after breach of condition, make a new formal entry for breach of condition, or bring an action, under section one, with the same effect as if he were not in possession; or he may foreclose the right of redemption by giving, after breach of condition, to the mortgagor, or person claiming under him, a written notice that he will thenceforward hold the land for the purpose of foreclosure and causing a certificate in proof thereof to be recorded within thirty days after such notice as in case of an original entry. If such notice is given and recorded, the three years limited for redemption shall run from the date of giving the notice.
Chapter 244: Section 11. Mortgages containing power of sale; court order for sale Section 11. If a conditional judgment has been entered upon a mortgage containing a power of sale, the court shall, instead of issuing a writ of possession, at the request of the plaintiff order the property to be sold pursuant to such power. The plaintiff shall thereupon execute the power and do all things required by it or by the court.
Chapter 244: Section 12. Procedure after sale Section 12. The person selling shall, within ten days after the sale, file in the clerk’s office a report on oath of the sale and of his doings, and the court may confirm the sale or set it aside and order a re-sale. Any person interested may appear or be summoned, and the order of the court confirming the sale shall be conclusive evidence against all persons that the power of sale was duly executed.
Chapter 244: Section 13. Necessary parties Section 13. Unless the defendant is seized in fee simple in possession of the whole equity of redemption of the land demanded, an order for a sale shall not be made until all parties interested in the equity of redemption and whose estate or interest therein would be affected by such sale have been summoned to appear.
Chapter 244: Section 14. Foreclosure under power of sale; procedure; notice; form Section 14. The mortgagee or person having his estate in the land mortgaged, or a person authorized by the power of sale, or the attorney duly authorized by a writing under seal, or the legal guardian or conservator of such mortgagee or person acting in the name of such mortgagee or person, may, upon breach of condition and without action, do all the acts authorized or required by the power; but no sale under such power shall be effectual to foreclose a mortgage, unless, previous to such sale, notice thereof has been published once in each of three successive weeks, the first publication to be not less than twenty-one days before the day of sale, in a newspaper, if any, published in the town where the land lies or in a newspaper with general circulation in the town where the land lies and notice thereof has been sent by registered mail to the owner or owners of record of the equity of redemption as of thirty days prior to the date of sale, said notice to be mailed at least fourteen days prior to the date of sale to said owner or owners to the address set forth in section sixty-one of chapter one hundred and eighty-five, if the land is then registered or, in the case of unregistered land, to the last address of the owner or owners of the equity of redemption appearing on the records of the holder of the mortgage, if any, or if none, to the address of the owner or owners as given on his deed or on the petition for probate by which he acquired title, if any, or if in either case no address appears, then to the address to which the tax collector last sent the tax bill for the mortgaged premises to be sold, or if no tax bill has been sent for the last preceding three years, then to the address of any of the parcels of property in the name of said owner of record which are to be sold under the power of sale and unless a copy of said notice of sale has been sent by registered mail to all persons of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed, said notice to be mailed at least fourteen days prior to the date of sale to each such person at the address of such person set forth in any document evidencing the interest or to the last address of such person known to the mortgagee. Any person of record as of thirty days prior to the date of sale holding an interest in the property junior to the mortgage being foreclosed may waive at any time, whether prior or subsequent to the date of sale, the right to receive notice by mail to such person under this section and such waiver shall be deemed to constitute compliance with such notice requirement for all purposes. If no newspaper is published in such town, or if there is no newspaper with general circulation in the town where the land lies, notice may be published in a newspaper published in the county where the land lies, and this provision shall be implied in every power of sale mortgage in which it is not expressly set forth. A newspaper which by its title page purports to be printed or published in such town, city or county, and having a circulation therein, shall be sufficient for the purpose.
The following form of foreclosure notice may be used and may be altered as circumstances require; but nothing herein shall be construed to prevent the use of other forms.
(Form.
) MORTGAGEE’S SALE OF REAL ESTATE.
By virtue and in execution of the Power of Sale contained in a certain mortgage given by __________ to __________ dated __________ and recorded with ________________________________________________________________________ ________________________________________________________________________ Deeds, Book __________, page __________, of which mortgage the undersigned is the present holder, __________.
(If by assignment, or in any fiduciary capacity, give reference.
) ________________________________________________________________________for breach of the conditions of said mortgage and for the purpose of foreclosing the same will be sold at Public Auction at __________ o’clock, ___.
M. on the __________ day of __________ A.
D. (insert year), __________ (place) __________ all and singular the premises described in said mortgage,(In case of partial releases, state exceptions.
)To wit: “(Description as in the mortgage, including all references to title, restrictions, encumbrances, etc.
, as made in the mortgage.
)”Terms of sale: (State here the amount, if any, to be paid in cash by the purchaser at the time and place of the sale, and the time or times for payment of the balance or the whole as the case may be.
)Other terms to be announced at the sale.
(Signed) _____________________________ Present holder of said mortgage.
____________A notice of sale in the above form, published in accordance with the power in the mortgage and with this chapter, together with such other or further notice, if any, as is required by the mortgage, shall be a sufficient notice of the sale; and the premises shall be deemed to have been sold, and the deed thereunder shall convey the premises, subject to and with the benefit of all restrictions, easements, improvements, outstanding tax titles, municipal or other public taxes, assessments, liens or claims in the nature of liens, and existing encumbrances of record created prior to the mortgage, whether or not reference to such restrictions, easements, improvements, liens or encumbrances is made in the deed; but no purchaser at the sale shall be bound to complete the purchase if there are encumbrances, other than those named in the mortgage and included in the notice of sale, which are not stated at the sale and included in the auctioneer’s contract with the purchaser.
Chapter 244: Section 15. Copy of notice; affidavit; recording; evidence Section 15. The person selling, or the attorney duly authorized by a writing or the legal guardian or conservator of such person, shall, after the sale, cause a copy of the notice and his affidavit, fully and particularly stating his acts, or the acts of his principal or ward, to be recorded in the registry of deeds for the county or district where the land lies, with a note or reference thereto on the margin of the record of the mortgage deed, if it is recorded in the same registry. If the affidavit shows that the requirements of the power of sale and of the statute have in all respects been complied with, the affidavit or a certified copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed.
Chapter 244: Section 15A. Mortgagee taking possession or conveying title; notice Section 15A. A mortgagee taking possession of mortgaged premises prior to foreclosure or a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify all residential tenants of said premises, and the office of the assessor or collector of taxes of the municipality in which the premises are located and any persons, companies, districts, commissions or other entities of any kind which provide water or sewer service to the premises, of said taking possession or conveying title.
Chapter 244: Section 16. Repealed, 1971, 423, Sec. 22 Chapter 244: Section 17. Conveyance by mortgagor; effect Section 17. A sale or transfer by the mortgagor shall not impair or annul any right or power of attorney given in the mortgage to the mortgagee to sell or transfer the land as attorney or agent of the mortgagor.
Chapter 244: Section 17A. Limitation of actions Section 17A. Actions on mortgage notes, whether witnessed or not, or on other obligations to pay a debt secured by mortgage of real estate, to recover judgments for deficiencies after foreclosure by sale under a power contained in the mortgage, and actions on such notes or other obligations which are subject to a prior mortgage, to recover the amount due thereon after the foreclosure by sale of such prior mortgage under power contained therein, shall, except as hereinafter provided, be commenced within two years after the date of the foreclosure sale or, if the principal of the note or other obligation does not become payable until after the foreclosure sale, then within two years after the time when the cause of action for the principal accrues.
Such actions in cases where the foreclosure sale shall have occurred or the cause of action shall have accrued prior to January first, nineteen hundred and forty-six shall be commenced within two years after said date. Nothing in this section shall extend any other period of limitation.
Chapter 244: Section 17B. Notice of intention to foreclose; necessity; form; notice and affidavit Section 17B. No action for a deficiency shall be brought after June thirtieth, nineteen hundred and forty-six by the holder of a mortgage note or other obligation secured by mortgage of real estate after a foreclosure sale by him taking place after January first, nineteen hundred and forty-six unless a notice in writing of the mortgagee’s intention to foreclose the mortgage has been mailed, postage prepaid, by registered mail with return receipt requested, to the defendant sought to be charged with the deficiency at his last address then known to the mortgagee, together with a warning of liability for the deficiency, in substantially the form below, not less than twenty-one days before the date of the sale under the power in the mortgage, and an affidavit has been signed and sworn to, within thirty days after the foreclosure sale, of the mailing of such notice. A notice mailed as aforesaid shall be a sufficient notice, and such an affidavit made within the time specified shall be prima facie evidence in such action of the mailing of such notice. The notice and affidavit, respectively, shall be in substantially the following forms:Notice of Intention to Foreclose and of Deficiency After Foreclosure of Mortgage.
To A.
B. StreetYou are hereby notified, in accordance with the statute, of my intention, on or after , to foreclose by sale under power of sale for breach of condition, the mortgage held by me on property on Street in in the County of dated and recorded with deeds Book page to secure a note (or other obligation) signed by you, for the whole, or part, of which you may be liable to me in case of a deficiency in the proceeds of the foreclosure sale. Yours very truly, C.
D. Holder of said mortgage.
Affidavit.
I hereby certify on oath that on the day of (insert year) I mailed by registered mail, postage prepaid and return receipt requested, the notice, a copy of which appears below, directed to the persons or person at the addresses therein named which were the last addresses of such persons known to me at the time of mailing.
(Here insert copy)Signed and sworn to before me this day of (insert year).
.
.
.
.
Chapter 244: Section 17C. Waiver of provisions of Secs. 17A and 17B; validity Section 17C. The provisions of sections seventeen A and seventeen B shall not be waived, and any agreement to waive them or covenant not to rely upon them made before suit is commenced shall be void.
Chapter 244: Section 18. Persons authorized to redeem Section 18. The mortgagor or person claiming or holding under him may, after breach of condition, redeem the land mortgaged, unless the mortgagee, or person claiming or holding under him, has obtained possession of the land for breach of condition and has continued that possession for three years, or unless the land has been sold pursuant to a power of sale contained in the mortgage deed.
Chapter 244: Section 19. Tender of payment or performance Section 19. The person entitled to redeem shall pay or tender to the mortgagee, or person claiming or holding under him, the whole amount then due and payable on the mortgage, and shall perform or tender performance of every other condition contained therein; and if there has been an action to recover the land he shall pay or tender the costs of such action if unpaid.
Chapter 244: Section 2. Entry without judgment; memorandum or certificate; recording Section 2. If an entry for breach of condition is made without a judgment, a memorandum of the entry shall be made on the mortgage deed and signed by the mortgagor or person claiming under him, or a certificate, under oath, of two competent witnesses to prove the entry shall be made. Such memorandum or certificate shall after the entry, except as provided in section seventy of chapter one hundred and eighty-five, be recorded in the registry of deeds for the county or district where the land lies, with a note of reference, if the mortgage is recorded in the same registry, from each record to the other. Unless such record is made, the entry shall not be effectual for the purposes mentioned in the preceding section.
Chapter 244: Section 20. Accounting Section 20. If the mortgagee or person claiming or holding under him has had possession of the land, he shall account for rents and profits, and be allowed for all amounts expended in reasonable repairs and improvements, for all lawful taxes and assessments paid and for all other necessary expenses in the care and management of the land. A balance of such account, if due from him, shall be deducted from the debt due on the mortgage; if due to him, shall be added to the debt, and paid or tendered as such.
Chapter 244: Section 21. Time for tender; suit for redemption Section 21. The tender may be made before the expiration of the three years limited for redemption, and before or after entry for breach of condition, and before a sale pursuant to a power contained in the mortgage; but if the mortgagee or person claiming or holding under him does not accept the tender and discharge the mortgage, the tender shall not prevent the foreclosure unless, within one year after the tender, the mortgagor or person claiming or holding under him commences suit for redemption and when he commences suit pays to the clerk of the court the amount tendered for the use of the party entitled thereto.
Chapter 244: Section 22. Suit without previous tender Section 22. The person entitled to redeem may, before the expiration of the three years limited for redemption, and before or after an entry for breach of condition, and before a sale pursuant to a power contained in the mortgage, commence suit for redemption without previous tender, and may in such suit offer to pay such amount as shall be found due from him, or to perform such other condition as the case may require; but a mortgagee who has published a notice of sale prior to the commencement of such suit may proceed with said sale unless the amount due is paid into court or the sale enjoined.
Chapter 244: Section 23. Amounts not in dispute; order for payment Section 23. The court may determine, by a reference to a master or otherwise, whether any and what amount due on the mortgage is not in dispute, and may by an interlocutory decree order it paid to the mortgagee, or for his use to the clerk of the court.
Chapter 244: Section 24. Costs Section 24. The court may award costs in the suit for redemption to either party; but if suit is brought without previous tender and it is found that the condition of the mortgage has not been performed, the plaintiff shall pay costs of suit, unless the court finds that the defendant has unreasonably refused or neglected, when requested, to render a just and true account of the money due upon the mortgage and of rents and profits and amounts paid for taxes, repairs, improvements and other necessary expenses, or that he otherwise by his default prevented the plaintiff from performing or tendering performance of the condition before commencement of suit.
Chapter 244: Section 25. Defective tender Section 25. If suit was commenced before the expiration of the three years limited for redemption, and before or after entry for breach of condition, the plaintiff shall, although the tender alleged is found to be insufficient, be entitled to a decree for redemption as if no previous tender had been alleged.
Chapter 244: Section 26. Venue Section 26. Except as provided in section forty, a suit for redemption shall be brought in the county where the land or any part thereof lies.
Chapter 244: Section 27. Judgment of possession Section 27. If the court finds the plaintiff entitled to redeem, it shall determine the amount due on the mortgage or what condition the plaintiff is bound to perform for the redemption of the land, and shall enter judgment that, upon payment of such amount or performance of such condition within such time as it shall order, the plaintiff shall have execution for possession of the land and shall hold it discharged of the mortgage.
Chapter 244: Section 28. Interest Section 28. If the court finds that the mortgagee has not unreasonably neglected or refused to render a true account of rents and profits of the land mortgaged, it may award him the balance found due on the mortgage, with interest thereon at a rate of not more than twelve per cent a year from the expiration of three years after the entry to the date of the judgment.
Chapter 244: Section 29. Execution for possession Section 29. The court may at the same time order that, if the defendant neglects or refuses to accept the money or other act required by the judgment to be paid or performed, the money shall be left for his use with the clerk of the court, or such other act done as the case requires; and the plaintiff, having performed all acts required by the judgment, may have execution for possession of the land.
Chapter 244: Section 3. Declaration by mortgagees; conditional judgment Section 3. The mortgagee in an action for possession may declare on his own seisin, stating that it is in mortgage; and if the court finds upon verdict or otherwise that the plaintiff is entitled to possession of the land for breach of condition, it shall upon motion of either party, except as provided in the following section, award a conditional judgment.
Chapter 244: Section 30. Judgment and execution for balance Section 30. If the court finds that the defendant has received from rents and profits of the land or otherwise more than is due on the mortgage, it shall award judgment and execution against him for the amount due to the plaintiff; and if there are several defendants, such judgment and execution may be awarded against them, either jointly or severally, for the amounts received by them or any of them, respectively.
Chapter 244: Section 31. Distribution of money tendered and paid into court Section 31. The court may order the amount found due the plaintiff for rents and profits or costs, if any, to be deducted from the amount found due the defendant, to whom the balance only shall be paid from any money tendered or brought into court, and the residue, if any, shall be paid to the plaintiff.
Chapter 244: Section 32. Intervention Section 32. If a person, other than the parties to a suit for redemption, is interested therein, the court may, upon terms, allow him to intervene.
Chapter 244: Section 33. Survival of right of redemption Section 33. If the person entitled to redeem a mortgaged estate dies, his heirs, devisees, executor or administrator may make a tender or commence or prosecute a suit for redemption which the deceased might have made, commenced or prosecuted.
Chapter 244: Section 34. Tender to guardian or conservator Section 34. A tender may be made to a guardian or conservator, who may, upon satisfaction, execute a release of the mortgage.
Chapter 244: Section 35. Opening foreclosure; right of redemption Section 35. If, after the foreclosure of a mortgage not containing a power of sale, the person entitled to the debt recovers judgment for any part thereof on the ground that the value of the land mortgaged at the time of the foreclosure was less than the amount due, such recovery shall open the foreclosure, and the person entitled may redeem the land although the three years limited therefor have expired, if suit for redemption is brought within one year after the recovery of such judgment.
Chapter 244: Section 36. Excess received by mortgagee; recovery Section 36. If a mortgagee or person claiming or holding under him receives from rents and profits of the land, or upon a tender made to him, or in any other manner, more than is due on the mortgage, and no suit for redemption is brought against him, the mortgagor or other person entitled to such excess may recover it in a civil action.
Chapter 244: Section 37. Discharge of mortgages held by commonwealth Section 37. If a mortgage is held by the commonwealth, the state treasurer may demand and receive the money due, and upon payment shall make and acknowledge a discharge.
Chapter 244: Section 38. Foreclosure Section 38. If the condition of such mortgage is not duly performed, the state treasurer may cause an entry for breach of condition to be made in the name and behalf of the commonwealth by himself or a person whom he appoints, or he may bring an action in the name of the commonwealth to recover possession of the land mortgaged; and possession obtained by entry or by action shall have the same effect in foreclosing the right of redemption as a similar possession by any other mortgagee.
Chapter 244: Section 39. Redemption generally Section 39. The mortgagor or his assigns may redeem the land in like manner and upon like terms as if held by any other mortgagee, and the payment or performance of the condition shall be made or tendered to the state treasurer.
Chapter 244: Section 4. Procedure Section 4. Unless the defendant is the mortgagor or his assignee, or entitled to hold or claim the land under the mortgagor or his assignee, he shall not redeem the land nor have a conditional judgment, except with the consent of the plaintiff, but the action shall be conducted like an action for possession, and in all cases the judgment for the plaintiff may be entered for possession as at common law, unless one or the other of the parties moves for the conditional judgment.
Chapter 244: Section 40. Action for redemption; jurisdiction; process; payments; discharge Section 40. If the state treasurer and the person applying to redeem the mortgage do not agree upon the amount due, the person so applying may bring in the supreme judicial or the superior court, for the county of Suffolk, civil action against the commonwealth for the redemption. The process shall be served on the state treasurer, who shall appear and answer in behalf of the commonwealth; and like proceedings shall be had and like judgment rendered as in case of other mortgagees, except that the state treasurer shall accept any payment due the commonwealth, and upon receipt thereof, or upon performance of such other condition as the court orders, shall discharge the mortgage in like manner as when the debt is paid without suit.
Chapter 244: Section 5. Form of conditional judgments generally Section 5. If the conditional judgment is to be entered, the court shall determine the amount due to the plaintiff on the mortgage, and shall enter judgment that if the defendant within two months after the judgment pays to the plaintiff such amount with interest and the costs, the mortgage shall be void, and the defendant shall hold the land discharged thereof; otherwise, that the plaintiff shall have execution for possession and for costs.
Chapter 244: Section 6. Form in special cases Section 6. If the condition of the mortgage is not for the payment of money, or if a part only of the money, the payment of which is secured by the mortgage, is due, the court shall vary the terms of the judgment as the case may require, but shall award execution as before provided unless the defendant within two months after the judgment performs the conditions thereof.
Chapter 244: Section 7. Discharge or release on satisfaction of execution Section 7. If, after an execution on a judgment for possession has been levied, the amount due on the mortgage and costs are paid in full, the mortgagee, his executor, administrator or assigns shall, at the expense of the mortgagor, enter on the margin of the record of the execution an acknowledgment of satisfaction or make to the mortgagor a deed of release, which shall be recorded with notes of reference to the execution discharged thereby.
Chapter 244: Section 8. Form of action; parties Section 8. The entry may be made or the action brought by an assignee of the mortgagee. The action for possession may be brought, and shall be conducted as if brought by the original mortgagee. The mortgagor may be joined therein as a defendant irrespective of his estate in the land; but if he has no estate in the land and makes no defence to the action, he shall not be liable for costs.
Chapter 244: Section 9. Right of entry before breach Section 9. This chapter shall not prevent a mortgagee or person claiming under him from entering on the land or from recovering possession thereof before breach of condition of the mortgage, if there is no agreement to the contrary; but if the debt is afterward paid or the mortgage redeemed, the amount of the clear rents and profits from the time of the entry shall be accounted for and deducted from the amount due on the mortgage.
Section 1. If a person unlawfully enters upon or holds land belonging to the commonwealth, it may be recovered in a civil action brought by the attorney general or by a district attorney in the superior court in any county or in the land court.
Section 10. If the commonwealth continues seized of the land when such new action is commenced, such action shall be brought against the tenant or occupant thereof, and, in addition to the service on him service shall be made upon the attorney general or district attorney. If the commonwealth has granted away the land, the action shall be brought against the tenant of the freehold. In either case it shall be conducted and disposed of as if no such action by the commonwealth had been brought.
prevailing party Section 11. If the plaintiff recovers judgment, he shall be entitled to rents and profits and chargeable for improvements as provided in chapter two hundred and thirty-seven, although the land has not been held and possessed for six years under the adverse title.
Section 12. Costs shall be awarded and taxed for the prevailing party. If judgment is for the commonwealth, an execution for costs shall issue; if it is for the defendant, the costs shall be paid by the commonwealth.
Section 2. If the title of the commonwealth is founded on a forfeiture for breach of a condition in a grant or conveyance by the commonwealth or by the province or colony of Massachusetts bay, no action for the recovery thereof shall be commenced unless by direction of the governor, with the advice and consent of the council; but in all other cases the attorney general or district attorney may prosecute an action therefor if he believes that the claim of the commonwealth can be established.
Section 4. If, in case of a supposed escheat, no person appears as the heir of the person last seized, or if in any case there is reason to suppose that there is a person claiming an estate or interest in the land, whose name is unknown, who is absent from the commonwealth or who cannot be found therein to be served with process, the court shall, in addition to any other service, order the substance of the complaint with the order of the court thereon to be published once in each of three successive weeks in a newspaper designated by it, the first publication to be at least ninety days before the time appointed for the appearance of the parties.
Section 5. A person claiming an estate or interest in the land, although not named in the complaint nor served with process, may appear and answer thereto; but a defendant not named shall not recover costs against the commonwealth, unless it appears that he has an estate or interest in the land, although the commonwealth fails to establish its claim thereto. If there are several defendants, the court may award costs for or against any one, as if he were the sole defendant.
prevailing party Section 6. If the commonwealth prevails, the defendant shall be chargeable for rents and profits and be entitled to an allowance for improvements as provided in chapter two hundred and thirty-seven.
Section 7. The commonwealth shall be actually seized and possessed of the land as soon as judgment is rendered in its favor, without a writ of possession.
Section 8. The judgment shall be conclusive between the commonwealth and the defendants who appear and answer, and against every person named as a defendant and duly served and against all persons claiming under such defendants.
Section 9. A person not concluded by a judgment for the commonwealth under the preceding section may, until his claim is barred by law for the limitation of real actions or otherwise, bring an action to recover the land from the commonwealth or from any person then holding under it. He may deny and disprove any facts alleged and proved in the first action and allege and prove other facts in support of his claim and shall, if it appears that he is entitled to the land, have judgment and execution therefor.
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