Massachusetts 2025-2026 Regular Session

Massachusetts Senate Bill S1239 Compare Versions

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

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2	2	SENATE DOCKET, NO. 813 FILED ON: 1/14/2025
3	3	SENATE . . . . . . . . . . . . . . No. 1239
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Pavel M. Payano
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 :Pavel M. PayanoFirst Essex 1 of 11
16	16	SENATE DOCKET, NO. 813 FILED ON: 1/14/2025
17	17	SENATE . . . . . . . . . . . . . . No. 1239
18	18	By Mr. Payano, a petition (accompanied by bill, Senate, No. 1239) of Pavel M. Payano for
19	19	legislation relative to uniform partition of heirs property. The Judiciary.
20	20	[SIMILAR MATTER FILED IN PREVIOUS SESSION
21	21	SEE SENATE, NO. 2560 OF 2023-2024.]
22	22	The Commonwealth of Massachusetts
23	23	_______________
24	24	In the One Hundred and Ninety-Fourth General Court
25	25	(2025-2026)
26	26	_______________
27	27	An Act relative to uniform partition of heirs property.
28	28	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
29	29	of the same, as follows:
30	30	1 SECTION 1. Chapter 241, as appearing in the 2022 Official Edition of the General Laws,
31	31	2is hereby amended by inserting after section 37 the following section:-
32	32	3 Section 38. (a) For the purposes of this section, the following terms shall have the
33	33	4following meanings:-
34	34	5 “Ascendant,” an individual who precedes another individual in lineage, in the direct line
35	35	6of ascent from the other individual.
36	36	7 “Collateral,” an individual who is related to another individual under the law of intestate
37	37	8succession of the commonwealth but who is not the other individual’s ascendant or descendant. 2 of 11
38	38	9 “Descendant,” an individual who follows another individual in lineage, in the direct line
39	39	10of descent from the other individual.
40	40	11 “Determination of value,” a court order determining the fair market value of heirs
41	41	12property pursuant to subsection (d) or subsection (h) or adopting the valuation of the property
42	42	13agreed to by all cotenants.
43	43	14 “Heirs property,” real property held in tenancy in common which satisfies all of the
44	44	15following requirements as of the filing of a partition action:
45	45	16 (a) there is no agreement in a record binding all the cotenants which governs the partition
46	46	17of the property;
47	47	18 (b) one or more of the cotenants acquired title from a relative, whether living or deceased;
48	48	19 (c) and any of the following applies: (i) 20 percent or more of the interests are held by
49	49	20cotenants who are relatives; (ii) 20 percent or more of the interests are held by an individual who
50	50	21acquired title from a relative, whether living or deceased; (iii) or 20 percent or more of the
51	51	22cotenants are relatives.
52	52	23 “Partition by sale,” a court-ordered sale of the entire heirs property, whether by open-
53	53	24market sale, sealed bids, or auction conducted under subsection (h).
54	54	25 “Partition in kind,” the division of heirs property into physically distinct and separately
55	55	26titled parcels.
56	56	27 “Record,” information that is inscribed on a tangible medium or that is stored in an
57	57	28electronic or other medium and is retrievable in perceivable form. 3 of 11
58	58	29 “Relative,” an ascendant, descendant, or collateral or an individual otherwise related to
59	59	30another individual by blood, marriage, adoption, or law of the commonwealth other than section
60	60	3138 of chapter 241.
61	61	32 (b) If the plaintiff in a partition action seeks an order of notice by publication and the
62	62	33court determines that the property may be heirs property, the plaintiff, not later than 10 days after
63	63	34the court’s determination, shall post, and maintain while the action is pending, a conspicuous
64	64	35sign on the property that is the subject of the action. The sign must state that the action has
65	65	36commenced and identify the name and address of the court and the common designation by
66	66	37which the property is known. The court may require the plaintiff to publish on the sign the name
67	67	38of the plaintiff and the known defendants.
68	68	39 (c) If the court appoints commissioners pursuant to chapter 241, each commissioner, in
69	69	40addition to the requirements and disqualifications applicable to commissioners in chapter 241,
70	70	41must be impartial and not a party to or a participant in the action.
71	71	42 (d) (1) Except as otherwise provided in subsection (d) (2) and (3), if the court determines
72	72	43that the property that is the subject of a partition action is heirs property, the court shall
73	73	44determine the fair market value of the property by ordering an appraisal pursuant to subsection
74	74	45(d)(4).
75	75	46 (2) If all cotenants have agreed to the value of the property or to another method of
76	76	47valuation, the court shall adopt that value or the value produced by the agreed method of
77	77	48valuation. 4 of 11
78	78	49 (3) If the court determines that the evidentiary value of an appraisal is outweighed by the
79	79	50cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value
80	80	51of the property and send notice to the parties of the value.
81	81	52 (4) If the court orders an appraisal, the court shall appoint a disinterested real estate
82	82	53appraiser licensed in the commonwealth to determine the fair market value of the property
83	83	54assuming sole ownership of the fee simple estate. One completion of the appraisal, the appraiser
84	84	55shall file a sworn or verified appraisal with the court.
85	85	56 (5) If an appraisal is conducted pursuant to subsection(d) (4), not later than 10 days after
86	86	57the appraisal is filed, the court shall send notice to each party with a known address stating: (i)
87	87	58the appraised fair market value of the property; (ii) that the appraisal is available at the clerk’s
88	88	59office; and (iii) that a party may file with the court an objection to the appraisal not later than 31
89	89	60days after the notice is sent, stating the grounds for the objection.
90	90	61 (6) If an appraisal is filed with the court pursuant to subsection(d)(4), the court shall
91	91	62conduct a hearing to determine the fair market value of the property not sooner than 31 days after
92	92	63a copy of the notice of the appraisal is sent to each party under paragraph (d)(5), whether or not
93	93	64an objection to the appraisal is filed under subsection(d)(5) (iii). In addition to the court-ordered
94	94	65appraisal, the court may consider any other evidence of value offered by a party.
95	95	66 (7) After a hearing under subsection(d)(6), but before considering the merits of the
96	96	67partition action, the court shall determine the fair market value of the property and send notice to
97	97	68the parties of the value.
98	98	69 (e) (1) If any cotenant requested partition by sale, after the determination of value under
99	99	70subsection (d), the court shall send notice to the parties that any cotenant except a cotenant that 5 of 11
100	100	71requested partition by sale may buy all the interests of the cotenants that requested partition by
101	101	72sale.
102	102	73 (2) Not later than 45 days after the notice is sent pursuant to subsection (e)(1), any
103	103	74cotenant except a cotenant that requested partition by sale may give notice to the court that it
104	104	75elects to buy all the interests of the cotenants that requested partition by sale.
105	105	76 (3) The purchase price for each of the interests of the cotenant that requested partition by
106	106	77sale is the value of the entire parcel determined under subsection (d) multiplied by the cotenant’s
107	107	78fractional ownership of the entire parcel.
108	108	79 (4) After expiration of the period pursuant to subsection (e)(2), the following rules apply:
109	109	80(i) if only one cotenant elects to buy all the interests of the cotenants that requested partition by
110	110	81sale, the court shall notify all the parties of that fact; (ii) if more than one cotenant elects to buy
111	111	82all the interests of the cotenants that requested partition by sale, the court shall allocate the right
112	112	83to buy those interests among the electing cotenants based on each electing cotenant’s existing
113	113	84fractional ownership of the entire parcel divided by the total existing fractional ownership of all
114	114	85cotenants electing to buy and send notice to all the parties of that fact and of the price to be paid
115	115	86by each electing cotenant; and (iii) if no cotenant elects to buy all the interests of the cotenants
116	116	87that requested partition by sale, the court shall send notice to all the parties of that fact and
117	117	88resolve the partition action under subsection (f)(1) and (2).
118	118	89 (5) If the court sends notice to the parties under subsection (e)(4) (i) or (ii), the court shall
119	119	90set a date, not sooner than 60 days after the date the notice was sent, by which electing cotenants
120	120	91must pay their apportioned price into the court. After this date, the following rules shall apply: (i)
121	121	92if all electing cotenants timely pay their apportioned price into court, the court shall issue an 6 of 11
122	122	93order reallocating all the interests of the cotenants and disburse the amounts held by the court to
123	123	94the persons entitled to them; (ii) if no electing cotenant timely pays its apportioned price, the
124	124	95court shall resolve the partition action under subsection (f) (1) and (2) as if the interests of the
125	125	96cotenants that requested partition by sale were not purchased, (iii) if one or more but not all of
126	126	97the electing cotenants fail to pay their apportioned price on time, the court, on motion, shall give
127	127	98notice to the electing cotenants that paid their apportioned price of the interest remaining and the
128	128	99price for all that interest.
129	129	100 (6) Not later than 20 days after the court gives notice pursuant to subsection (e)(5) (iii),
130	130	101any cotenant that paid may elect to purchase all of the remaining interest by paying the entire
131	131	102price into the court. After the 20-day period, the following rules apply: (i) if only one cotenant
132	132	103pays the entire price for the remaining interest, the court shall issue an order reallocating the
133	133	104remaining interest to that cotenant and the court shall issue promptly an order reallocating the
134	134	105interests of all the cotenants and disburse the amounts held by it to the persons entitled to them;
135	135	106(ii) if no cotenant pays the entire price for the remaining interest, the court shall resolve the
136	136	107partition action under subsection (f) paragraphs (1) and (2) as if the interests of the cotenants that
137	137	108requested partition by sale were not purchased; (iii) if more than one cotenant pays the entire
138	138	109price for the remaining interests, the court shall reapportion the remaining interest among those
139	139	110paying cotenants, based on each paying cotenant’s original fractional ownership of the entire
140	140	111parcel divided by the total original fractional ownership of all cotenants that paid the entire price
141	141	112for the remaining interest and the court shall issue promptly an order reallocating all of the
142	142	113cotenants’ interests, disburse the amounts held by it to the persons entitled to them, and promptly
143	143	114refund any excess payment held by the court. 7 of 11
144	144	115 (7) Not later than 45 days after the court sends notice to the parties pursuant to subsection
145	145	116(e) (1), any cotenant entitled to buy an interest under this subsection may request the court to
146	146	117authorize the sale as part of the pending action of the interests of cotenants named as defendants
147	147	118and served with the complaint but that did not appear in the action.
148	148	119 (8) If the court receives a timely request under subsection (e) (7), the court, after hearing,
149	149	120may deny the request or authorize the requested additional sale on such terms as the court
150	150	121determines are fair and reasonable, subject to the following limitations: (i) a sale authorized
151	151	122under this subsection (e)(8) may occur only after the purchase prices for all interests subject to
152	152	123sale under subsection (e)(1) through (6) have been paid into court and those interests have been
153	153	124reallocated among the cotenants as provided in those subsections; and (ii) the purchase price for
154	154	125the interests of a nonappearing cotenant is based on the court’s determination of value under
155	155	126subsection (d).
156	156	127 (f) (1) If all the interests of all cotenants that requested partition by sale are not purchased
157	157	128by other cotenants pursuant to subsection (e), or if after conclusion of the buyout under
158	158	129subsection (e), a cotenant remains that has requested partition in kind, the court shall order
159	159	130partition in kind unless the court, after consideration of the factors listed in subsection (g), finds
160	160	131that partition in kind will result in great prejudice to the cotenants as a group. In considering
161	161	132whether to order partition in kind, the court shall approve a request by two or more parties to
162	162	133have their individual interests aggregated.
163	163	134 (2) If the court does not order partition in kind under subsection (f)(1), the court shall
164	164	135order partition by sale pursuant to subsection (h), or if no cotenant requested partition by sale, the
165	165	136court shall dismiss the action. 8 of 11
166	166	137 (3) If the court orders partition in kind pursuant to subsection (f)(1), the court may require
167	167	138that one or more cotenants pay one or more other cotenants amounts so that the payments, taken
168	168	139together with the value of the in-kind distributions to the cotenants, will make the partition in
169	169	140kind just and proportionate in value to the fractional interests held.
170	170	141 (4) If the court orders partition in kind, the court shall allocate to the cotenants that are
171	171	142unknown, unlocatable, or the subject of a default judgment, if their interests were not bought out
172	172	143pursuant to subsection (e), a part of the property representing the combined interests of these
173	173	144cotenants as determined by the court and this part of the property shall remain undivided.
174	174	145 (g) (1) In determining pursuant to subsection (f) (1), whether partition in kind would
175	175	146result in great prejudice to the cotenants as a group, the court shall consider the following: (i)
176	176	147whether the heirs property practicably can be divided among the cotenants; (ii) whether partition
177	177	148in kind would apportion the property in such a way that the aggregate fair market value of the
178	178	149parcels resulting from the division would be materially less than the value of the property if it
179	179	150were sold as a whole, taking into account the condition under which a court-ordered sale likely
180	180	151would occur; (iii) evidence of the collective duration of ownership or possession of the property
181	181	152by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant
182	182	153who are or were relatives of the cotenant or each other; (iv) a cotenant’s sentimental attachment
183	183	154to the property, including any attachment arising because the property has ancestral or other
184	184	155unique or special value to the cotenant; (v) the lawful use being made of the property by a
185	185	156cotenant and the degree to which the cotenant would be harmed if the cotenant could not
186	186	157continue the same use of the property; (vi) the degree to which the cotenants have contributed
187	187	158their pro rata share of the property taxes, insurance, and other expenses associated with 9 of 11
188	188	159maintaining ownership of the property or have contributed to the physical improvement,
189	189	160maintenance, or upkeep of the property; and (vii) any other relevant factor.
190	190	161 (2) The court may not consider any one factor in subsection (g)(1) to be dispositive
191	191	162without weighing the totality of all relevant factors and circumstances.
192	192	163 (h) (1) If the court orders a sale of heirs property, the sale must be an open-market sale
193	193	164unless the court finds that a sale by sealed bids or an auction would be more economically
194	194	165advantageous and in the best interest of the cotenants as a group.
195	195	166 (2) If the court orders an open-market sale and the parties, not later than 10 days after the
196	196	167entry of the order, agree on a real estate broker licensed by the commonwealth to offer the
197	197	168property for sale, the court shall appoint the broker and establish a reasonable commission. If the
198	198	169parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed
199	199	170by the commonwealth to offer the property for sale and shall establish a reasonable commission.
200	200	171The broker shall offer the property for sale in a commercially reasonable manner at a price no
201	201	172lower than the determination of value and on the terms and conditions established by the court.
202	202	173 (3) If the broker appointed pursuant to subsection (h)(2) obtains within a reasonable time
203	203	174an offer to purchase the property for at least the determination of value: (i) the broker shall
204	204	175comply with the reporting requirements in subsection (i); and (ii) the sale may be completed in
205	205	176accordance with the General Laws other than section 38 of chapter 241.
206	206	177 (4) If the broker appointed pursuant to subsection (h)(2) does not obtain within a
207	207	178reasonable time an offer to purchase the property for at least the determination of value, the
208	208	179court, after hearing, may: (i) approve the highest outstanding offer, if any; (ii) redetermine the 10 of 11
209	209	180value of the property and order that the property continue to be offered for an additional time; or
210	210	181(iii) order that the property be sold by sealed bids or at an auction.
211	211	182 (5) If the court orders a sale by sealed bids or an auction, the court shall set terms and
212	212	183conditions of the sale. If the court orders an auction, the auction must be conducted pursuant to
213	213	184chapter 241.
214	214	185 (6) If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled
215	215	186to a credit against the price in an amount equal to the purchaser’s share of the proceeds.
216	216	187 (i) A broker appointed pursuant to subsection (h) (2) to offer heirs property for open-
217	217	188market sale shall file a report with the court not later than seven days after receiving an offer to
218	218	189purchase the property for at least the value determined under subsection (d) or (h). The report
219	219	190must contain the following information: (i) a description of the property to be sold to each buyer;
220	220	191(ii) the name of each buyer; (iii) the proposed purchase price; (iv) the terms and conditions of the
221	221	192proposed sale, including the terms of any owner financing; (v) the amounts to be paid to
222	222	193lienholders; (vi) a statement of contractual or other arrangements or conditions of the broker’s
223	223	194commission; and (vii) other material facts relevant to the sale.
224	224	195 SECTION 2. In an action to partition real property pursuant to chapter 241 the court shall
225	225	196determine whether the property is heirs property. If the court determines that the property is heirs
226	226	197property, the property shall be partitioned under section 38 of chapter 241 unless all of the
227	227	198cotenants otherwise agree in a record.
228	228	199 SECTION 3. This Act supplements chapter 241 and, if an action is governed by this Act,
229	229	200replaces provisions of chapter 241 that are inconsistent with this Act. 11 of 11
230	230	201 SECTION 4. This Act does not limit or affect the method by which service of a petition
231	231	202in a partition action may be made.
232	232	203 SECTION 5. In applying and construing this Act, consideration must be given to the need
233	233	204to promote uniformity of the law with respect to its subject matter among states that enact it.
234	234	205 SECTION 6. This Act modifies, limits, and supersedes the Electronic Signatures in
235	235	206Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit,
236	236	207or supersede Section 101 (c) of said act, 15 U.S.C. Section 7001(c), or authorize electronic
237	237	208delivery of any of the notices described in Section 103(b) of said act, 15 U.S.C. Section 7003(b).
238	238	209 SECTION 7. This Act applies to partitions actions filed on or after the date of enactment.