Massachusetts 2025-2026 Regular Session

Massachusetts House Bill H1964 Compare Versions

Only one version of the bill is available at this time.

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2	2	HOUSE DOCKET, NO. 508 FILED ON: 1/9/2025
3	3	HOUSE . . . . . . . . . . . . . . . No. 1964
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Jeffrey N. Roy and Christopher J. Worrell
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to uniform partition of heirs property.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:Jeffrey N. Roy10th Norfolk1/9/2025Christopher J. Worrell5th Suffolk1/9/2025 1 of 11
16	16	HOUSE DOCKET, NO. 508 FILED ON: 1/9/2025
17	17	HOUSE . . . . . . . . . . . . . . . No. 1964
18	18	By Representatives Roy of Franklin and Worrell of Boston, a petition (accompanied by bill,
19	19	House, No. 1964) of Jeffrey N. Roy and Christopher J. Worrell relative to uniform partition of
20	20	heirs property. The Judiciary.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 1744 OF 2023-2024.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Fourth General Court
26	26	(2025-2026)
27	27	_______________
28	28	An Act relative to uniform partition of heirs property.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1. Chapter 241, as appearing in the 2018 Official Edition of the General Laws,
32	32	2is hereby amended by inserting after section 37 the following section: -
33	33	3 Section 38. (a) For the purposes of this section, the following terms shall have the
34	34	4following meanings: -
35	35	5 “Ascendant,” an individual who precedes another individual in lineage, in the direct line
36	36	6of ascent from the other individual.
37	37	7 “Collateral,” an individual who is related to another individual under the law of intestate
38	38	8succession of the commonwealth but who is not the other individual’s ascendant or descendant. 2 of 11
39	39	9 “Descendant,” an individual who follows another individual in lineage, in the direct line
40	40	10of descent from the other individual.
41	41	11 “Determination of value,” a court order determining the fair market value of heirs
42	42	12property pursuant to subsection (d) or subsection (h) or adopting the valuation of the property
43	43	13agreed to by all cotenants.
44	44	14 “Heirs property,” real property held in tenancy in common which satisfies all of the
45	45	15following requirements as of the filing of a partition action:
46	46	16 (a) there is no agreement in a record binding all the cotenants which governs the partition
47	47	17of the property;
48	48	18 (b) one or more of the cotenants acquired title from a relative, whether living or deceased;
49	49	19 (c) and any of the following applies: (i) 20 percent or more of the interests are held by
50	50	20cotenants who are relatives; (ii) 20 percent or more of the interests are held by an individual who
51	51	21acquired title from a relative, whether living or deceased; (iii) or 20 percent or more of the
52	52	22cotenants are relatives.
53	53	23 “Partition by sale,” a court-ordered sale of the entire heirs property, whether by open-
54	54	24market sale, sealed bids, or auction conducted under subsection (h).
55	55	25 “Partition in kind,” the division of heirs property into physically distinct and separately
56	56	26titled parcels.
57	57	27 “Record,” information that is inscribed on a tangible medium or that is stored in an
58	58	28electronic or other medium and is retrievable in perceivable form. 3 of 11
59	59	29 “Relative,” an ascendant, descendant, or collateral or an individual otherwise related to
60	60	30another individual by blood, marriage, adoption, or law of the commonwealth other than section
61	61	3138 of chapter 241.
62	62	32 (b) If the plaintiff in a partition action seeks an order of notice by publication and the
63	63	33court determines that the property may be heirs property, the plaintiff, not later than 10 days after
64	64	34the court’s determination, shall post, and maintain while the action is pending, a conspicuous
65	65	35sign on the property that is the subject of the action. The sign must state that the action has
66	66	36commenced and identify the name and address of the court and the common designation by
67	67	37which the property is known. The court may require the plaintiff to publish on the sign the name
68	68	38of the plaintiff and the known defendants.
69	69	39 (c) If the court appoints commissioners pursuant to chapter 241, each commissioner, in
70	70	40addition to the requirements and disqualifications applicable to commissioners in chapter 241,
71	71	41must be impartial and not a party to or a participant in the action.
72	72	42 (d) (1) Except as otherwise provided in subsection (d) (2) and (3), if the court determines
73	73	43that the property that is the subject of a partition action is heirs property, the court shall
74	74	44determine the fair market value of the property by ordering an appraisal pursuant to subsection
75	75	45(d)(4).
76	76	46 (2) If all cotenants have agreed to the value of the property or to another method of
77	77	47valuation, the court shall adopt that value or the value produced by the agreed method of
78	78	48valuation. 4 of 11
79	79	49 (3) If the court determines that the evidentiary value of an appraisal is outweighed by the
80	80	50cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value
81	81	51of the property and send notice to the parties of the value.
82	82	52 (4) If the court orders an appraisal, the court shall appoint a disinterested real estate
83	83	53appraiser licensed in the commonwealth to determine the fair market value of the property
84	84	54assuming sole ownership of the fee simple estate. One completion of the appraisal, the appraiser
85	85	55shall file a sworn or verified appraisal with the court.
86	86	56 (5) If an appraisal is conducted pursuant to subsection(d) (4), not later than 10 days after
87	87	57the appraisal is filed, the court shall send notice to each party with a known address stating: (i)
88	88	58the appraised fair market value of the property; (ii) that the appraisal is available at the clerk’s
89	89	59office; and (iii) that a party may file with the court an objection to the appraisal not later than 31
90	90	60days after the notice is sent, stating the grounds for the objection.
91	91	61 (6) If an appraisal is filed with the court pursuant to subsection(d)(4), the court shall
92	92	62conduct a hearing to determine the fair market value of the property not sooner than 31 days after
93	93	63a copy of the notice of the appraisal is sent to each party under paragraph (d)(5), whether or not
94	94	64an objection to the appraisal is filed under subsection(d)(5) (iii). In addition to the court-ordered
95	95	65appraisal, the court may consider any other evidence of value offered by a party.
96	96	66 (7) After a hearing under subsection(d)(6), but before considering the merits of the
97	97	67partition action, the court shall determine the fair market value of the property and send notice to
98	98	68the parties of the value.
99	99	69 (e) (1) If any cotenant requested partition by sale, after the determination of value under
100	100	70subsection (d), the court shall send notice to the parties that any cotenant except a cotenant that 5 of 11
101	101	71requested partition by sale may buy all the interests of the cotenants that requested partition by
102	102	72sale.
103	103	73 (2) Not later than 45 days after the notice is sent pursuant to subsection (e)(1), any
104	104	74cotenant except a cotenant that requested partition by sale may give notice to the court that it
105	105	75elects to buy all the interests of the cotenants that requested partition by sale.
106	106	76 (3) The purchase price for each of the interests of the cotenant that requested partition by
107	107	77sale is the value of the entire parcel determined under subsection (d) multiplied by the cotenant’s
108	108	78fractional ownership of the entire parcel.
109	109	79 (4) After expiration of the period pursuant to subsection (e)(2) , the following rules apply:
110	110	80(i) if only one cotenant elects to buy all the interests of the cotenants that requested partition by
111	111	81sale, the court shall notify all the parties of that fact; (ii) if more than one cotenant elects to buy
112	112	82all the interests of the cotenants that requested partition by sale, the court shall allocate the right
113	113	83to buy those interests among the electing cotenants based on each electing cotenant’s existing
114	114	84fractional ownership of the entire parcel divided by the total existing fractional ownership of all
115	115	85cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid
116	116	86by each electing cotenant; and (iii) if no cotenant elects to buy all the interests of the cotenants
117	117	87that requested partition by sale, the court shall send notice to all the parties of that fact and
118	118	88resolve the partition action under subsection (f)(1) and (2).
119	119	89 (5) If the court sends notice to the parties under subsection (e)(4) (i) or (ii), the court shall
120	120	90set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants
121	121	91must pay their apportioned price into the court. After this date, the following rules shall apply: (i)
122	122	92if all electing cotenants timely pay their apportioned price into court, the court shall issue an 6 of 11
123	123	93order reallocating all the interests of the cotenants and disburse the amounts held by the court to
124	124	94the persons entitled to them; (ii) if no electing cotenant timely pays its apportioned price, the
125	125	95court shall resolve the partition action under subsection (f) (1) and (2) as if the interests of the
126	126	96cotenants that requested partition by sale were not purchased, (iii) if one or more but not all of
127	127	97the electing cotenants fail to pay their apportioned price on time, the court, on motion, shall give
128	128	98notice to the electing cotenants that paid their apportioned price of the interest remaining and the
129	129	99price for all that interest.
130	130	100 (6) Not later than 20 days after the court gives notice pursuant to subsection (e)(5) (iii),
131	131	101any cotenant that paid may elect to purchase all of the remaining interest by paying the entire
132	132	102price into the court. After the 20-day period, the following rules apply: (i) if only one cotenant
133	133	103pays the entire price for the remaining interest, the court shall issue an order reallocating the
134	134	104remaining interest to that cotenant and the court shall issue promptly an order reallocating the
135	135	105interests of all the cotenants and disburse the amounts held by it to the persons entitled to them;
136	136	106(ii) if no cotenant pays the entire price for the remaining interest, the court shall resolve the
137	137	107partition action under subsection (f) paragraphs (1) and (2) as if the interests of the cotenants that
138	138	108requested partition by sale were not purchased; (iii) if more than one cotenant pays the entire
139	139	109price for the remaining interests, the court shall reapportion the remaining interest among those
140	140	110paying cotenants, based on each paying cotenant’s original fractional ownership of the entire
141	141	111parcel divided by the total original fractional ownership of all cotenants that paid the entire price
142	142	112for the remaining interest and the court shall issue promptly an order reallocating all of the
143	143	113cotenants’ interests, disburse the amounts held by it to the persons entitled to them, and promptly
144	144	114refund any excess payment held by the court. 7 of 11
145	145	115 (7) Not later than 45 days after the court sends notice to the parties pursuant to subsection
146	146	116(e) (1), any cotenant entitled to buy an interest under this subsection may request the court to
147	147	117authorize the sale as part of the pending action of the interests of cotenants named as defendants
148	148	118and served with the complaint but that did not appear in the action.
149	149	119 (8) If the court receives a timely request under subsection (e) (7), the court, after hearing,
150	150	120may deny the request or authorize the requested additional sale on such terms as the court
151	151	121determines are fair and reasonable, subject to the following limitations: (i) a sale authorized
152	152	122under this subsection (e)(8) may occur only after the purchase prices for all interests subject to
153	153	123sale under subsection (e)(1) through (6) have been paid into court and those interests have been
154	154	124reallocated among the cotenants as provided in those subsections; and (ii) the purchase price for
155	155	125the interests of a nonappearing cotenant is based on the court’s determination of value under
156	156	126subsection (d).
157	157	127 (f) (1) If all the interests of all cotenants that requested partition by sale are not purchased
158	158	128by other cotenants pursuant to subsection (e), or if after conclusion of the buyout under
159	159	129subsection (e), a cotenant remains that has requested partition in kind, the court shall order
160	160	130partition in kind unless the court, after consideration of the factors listed in subsection (g), finds
161	161	131that partition in kind will result in great prejudice to the cotenants as a group. In considering
162	162	132whether to order partition in kind, the court shall approve a request by two or more parties to
163	163	133have their individual interests aggregated.
164	164	134 (2) If the court does not order partition in kind under subsection (f)(1), the court shall
165	165	135order partition by sale pursuant to subsection (h), or if no cotenant requested partition by sale, the
166	166	136court shall dismiss the action. 8 of 11
167	167	137 (3) If the court orders partition in kind pursuant to subsection (f)(1), the court may require
168	168	138that one or more cotenants pay one or more other cotenants amounts so that the payments, taken
169	169	139together with the value of the in-kind distributions to the cotenants, will make the partition in
170	170	140kind just and proportionate in value to the fractional interests held.
171	171	141 (4) If the court orders partition in kind, the court shall allocate to the cotenants that are
172	172	142unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out
173	173	143pursuant to subsection (e), a part of the property representing the combined interests of these
174	174	144cotenants as determined by the court and this part of the property shall remain undivided.
175	175	145 (g) (1) In determining pursuant to subsection (f) (1), whether partition in kind would
176	176	146result in great prejudice to the cotenants as a group, the court shall consider the following: (i)
177	177	147whether the heirs property practicably can be divided among the cotenants; (ii) whether partition
178	178	148in kind would apportion the property in such a way that the aggregate fair market value of the
179	179	149parcels resulting from the division would be materially less than the value of the property if it
180	180	150were sold as a whole, taking into account the condition under which a court-ordered sale likely
181	181	151would occur; (iii) evidence of the collective duration of ownership or possession of the property
182	182	152by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant
183	183	153who are or were relatives of the cotenant or each other; (iv) a cotenant’s sentimental attachment
184	184	154to the property, including any attachment arising because the property has ancestral or other
185	185	155unique or special value to the cotenant; (v) the lawful use being made of the property by a
186	186	156cotenant and the degree to which the cotenant would be harmed if the cotenant could not
187	187	157continue the same use of the property; (vi) the degree to which the cotenants have contributed
188	188	158their pro rata share of the property taxes, insurance, and other expenses associated with 9 of 11
189	189	159maintaining ownership of the property or have contributed to the physical improvement,
190	190	160maintenance, or upkeep of the property; and (vii) any other relevant factor.
191	191	161 (2) The court may not consider any one factor in subsection (g)(1) to be dispositive
192	192	162without weighing the totality of all relevant factors and circumstances.
193	193	163 (h) (1) If the court orders a sale of heirs property, the sale must be an open-market sale
194	194	164unless the court finds that a sale by sealed bids or an auction would be more economically
195	195	165advantageous and in the best interest of the cotenants as a group.
196	196	166 (2) If the court orders an open-market sale and the parties, not later than 10 days after the
197	197	167entry of the order, agree on a real estate broker licensed by the commonwealth to offer the
198	198	168property for sale, the court shall appoint the broker and establish a reasonable commission. If the
199	199	169parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed
200	200	170by the commonwealth to offer the property for sale and shall establish a reasonable commission.
201	201	171The broker shall offer the property for sale in a commercially reasonable manner at a price no
202	202	172lower than the determination of value and on the terms and conditions established by the court.
203	203	173 (3) If the broker appointed pursuant to subsection (h)(2) obtains within a reasonable time
204	204	174an offer to purchase the property for at least the determination of value: (i) the broker shall
205	205	175comply with the reporting requirements in subsection (i); and (ii) the sale may be completed in
206	206	176accordance with the General Laws other than section 38 of chapter 241.
207	207	177 (4) If the broker appointed pursuant to subsection (h)(2) does not obtain within a
208	208	178reasonable time an offer to purchase the property for at least the determination of value, the
209	209	179court, after hearing, may: (i) approve the highest outstanding offer, if any; (ii) redetermine the 10 of 11
210	210	180value of the property and order that the property continue to be offered for an additional time; or
211	211	181(iii) order that the property be sold by sealed bids or at an auction.
212	212	182 (5) If the court orders a sale by sealed bids or an auction, the court shall set terms and
213	213	183conditions of the sale. If the court orders an auction, the auction must be conducted pursuant to
214	214	184chapter 241.
215	215	185 (6) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled
216	216	186to a credit against the price in an amount equal to the purchaser’s share of the proceeds.
217	217	187 (i) A broker appointed pursuant to subsection (h) (2) to offer heirs property for open-
218	218	188market sale shall file a report with the court not later than seven days after receiving an offer to
219	219	189purchase the property for at least the value determined under subsection (d) or (h). The report
220	220	190must contain the following information: (i) a description of the property to be sold to each buyer;
221	221	191(ii) the name of each buyer; (iii) the proposed purchase price; (iv) the terms and conditions of the
222	222	192proposed sale, including the terms of any owner financing; (v) the amounts to be paid to
223	223	193lienholders; (vi) a statement of contractual or other arrangements or conditions of the broker’s
224	224	194commission; and (vii) other material facts relevant to the sale.
225	225	195 SECTION 2. In an action to partition real property pursuant to chapter 241 the court shall
226	226	196determine whether the property is heirs property. If the court determines that the property is heirs
227	227	197property, the property shall be partitioned under section 38 of chapter 241 unless all of the
228	228	198cotenants otherwise agree in a record.
229	229	199 SECTION 3. This Act supplements chapter 241 and, if an action is governed by this Act,
230	230	200replaces provisions of chapter 241 that are inconsistent with this Act. 11 of 11
231	231	201 SECTION 4. This Act does not limit or affect the method by which service of a petition
232	232	202in a partition action may be made.
233	233	203 SECTION 5. In applying and construing this Act, consideration must be given to the need
234	234	204to promote uniformity of the law with respect to its subject matter among states that enact it.
235	235	205 SECTION 6. This Act modifies, limits, and supersedes the Electronic Signatures in
236	236	206Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit,
237	237	207or supersede Section 101 (c) of said act, 15 U.S.C. Section 7001(c), or authorize electronic
238	238	208delivery of any of the notices described in Section 103(b) of said act, 15 U.S.C. Section 7003(b).
239	239	209 SECTION 7. This Act applies to partitions actions filed on or after the date of enactment.