Estate planning

The remainder can claim costs of property damage in the event of a partition


The Court of Appeal ruled that as part of an action to divide property formerly subject to a lifetime estate, two survivors could claim costs incurred by them to mitigate property damage caused by the third survivor.

Prior to the partition, petitioners James Lodigiani and Ann Petramello and defendant Nina Barry were granted residual interests in their parents’ Longmeadow home, subject to the life estate owned by their father, Leonard Lodigiani.

Barry eventually moved out to help care for her father and her disabled brother. Barry’s hoarding habits caused major health law problems that her remaining co-workers’ siblings paid for her treatment, seeking a contribution from her share of the division sale.

The Probate and Inheritance Court judge found that because Leonard, who died the day after the sale of the partition, had a sole duty as tenant for life to maintain the property for the benefit of the remainder, the contribution claim was outside the scope of the partition proceeding.

Instead, the judge split the proceeds of the sale equally, ruling that the petitioners would need to file a separate claim against their father’s estate if they wished to recoup the cleaning costs.

The Court of Appeals overturned the decision.

“Nina had her own duty as a remaining man not to harm the rights and interests of her principal colleagues,” Judge Sok Young Shin wrote to the panel. “It was therefore within the power of the (Inheritance and Inheritance Court) judge to consider whether property damage caused by Nina should be accounted for when determining how the sale proceeds should be fairly divided.”

The decision is 14 pages long Lodigiani, and others. v. Barry, et al.Lawyers Weekly Issue 11-086-23.

“Fair arguments on both sides.”

Barry appeals attorney Jessica R. Sophie of Westboro, said the case presented an extraordinary set of facts that merit the attention of the Court of Appeal.

“It seems reasonable to review what constitutes a fair division in this particular case,” Sophia said. “Where there is a presumption that (the proceeds from a division sale) are divided equally, the courts are not always sure how best to exercise their authority as to what is fair and what factors go into that decision.”

Sophia added that a review of the entire registry would show additional factors that could play a role in a fair division of pretrial detention. For example, she said, Barry made contributions towards the care of her disabled father and brother; she may have had mental health problems; She was not represented by a lawyer during the proceedings of the Inheritance and Inheritance Court.

“It sure is an interesting case,” Sophia said. “I think there were fair arguments on both sides.”

Karen M. Lodigiani of Cohasset, who represented the petitioners, could not be reached for comment before the deadline.

“The partition law provides for a certain level of judicial economy and efficiency in handling all issues related to property and parties, and this is important. This decision allows them to keep everything in one court before one judge.”

– Harry M. Haitain Jr., Waltham

Harry M. Haitain Jr., a Waltham attorney who handles property and will disputes, said he believes the appeals court has reached the right decision.

He said, “The division law provides for a certain level of judicial economy and efficiency in handling all issues related to property and parties, and this is important.” “This decision allows them to keep everything in one court before one judge. All parties are there, and cases and facts will be litigated there without having to experience the same facts twice.”

Gina R Wolownitz, a property and trust attorney in Waltham, said the appeals court studied case law from other states and concluded that the remainder do indeed have a duty not to commit waste against the property.

“Any other conclusion would be completely irrational,” Walentz said. “It would give whoever was left carte blanche to live in a home with one parent and destroy it with no financial consequences whatsoever. It would give people permission to act badly.”

Eric de Correra, a Boston estate planning attorney, said that due to the health code issues, the petitioners had no choice but to pay to clean up the property.

However, he said the case highlights the risks a property co-owner takes when contributing to the costs of a property heading for partition. This is why he asks his clients to stop paying for all expenses other than homeowner’s insurance and necessary repairs.

“The assumption is that after splitting, the proceeds are divided equally, and the less a person contributes, the less he is exposed to non-payment,” Corera said. In addition, by not paying expenses, it often helps put pressure on others to force partition.”

He also emphasized that Lodigiani It does not affect the general rule that a tenant for life is usually liable for waste.

“The important difference here is that the waste was caused by one of the rest, not by a third party,” Corera said. “If the waste had not been caused by the other landlord, the tenant would be liable for life.”

Meanwhile, Correra added, the timing of the subdivision sale — as the life tenant died the next day — couldn’t have been worse from a tax perspective.

“If the life tenant had died the day before the sale, there would have been a complete increase in the principal and no capital gain,” Corera explained. “Instead, the tenant for life died the day after the sale, which means there was likely to be some capital gains tax that the children would have had to pay as well as the need for a probate.”

Contribution claim

Leonard Lodigiani and his wife, Helen, deeded the property in question to James Lodigiani, Petramello and Barry in 2004 as joint tenants with rights of survivorship, with the life title to themselves.

Helen died three years later, but Leonard and his son John Lodigiani continued to occupy the property.

In or around 2011, Barry moved in and helped take care of her father and younger brother.

Lodigiani, and others. v. Barry, et al.

the problem: Can two of the remainder seek to recover the costs they have incurred, as part of a proceeding for the division of property formerly subject to the life property, to mitigate property damage caused by the third survivor?

resolution: Yes (Court of Appeal)

Lawyers: Karen M. Ludigiani of Cohasset (The Petitioners)

Jessica R. Sophie of O’Connor Family Law, Westboro (Respondent)

Barry, who has a history of hoarding, apparently continued her habits while living at the property, which was in disrepair by 2014.

That year, James arranged and paid for a dumpster to be brought to the property to clean up the mess and litter, but Barry’s antics allegedly continued, resulting in sanitary breach notices.

In July 2017, James unsuccessfully attempts to evict Barry from the property.

Soon after, he told her that he and Petramillo “as majority owners” needed to prepare the property for sale.

In May 2018, Leonard removed himself and John from the property and obtained a no-trespassing order against Barry several months later.

Afterward, James and Petramillo and their families cleaned the property, a process that took a year and cost more than $6,000.

In February 2019, James, Petramillo and Leonard filed a joint motion for partition at Hampden Probate Court, with Barry named as defendant.

The petition asked that Leonard be allowed to forfeit his property and sell the property with the proceeds distributed in proportions that would include compensating the petitioners for the costs of mitigating damage to the property.

The division sale closed on January 27, 2020, and Leonard died the next day.

In a subsequent trial, Judge Claudine T. Winer ruled that the petitioners’ demand for a contribution was outside the scope of the division action and that their exclusive avenue for reimbursement of costs was through a compensation claim against Leonard’s estate.

Wiener then issued a final decree, ordering that the sales proceeds be divided equally between the two parties.

The petitioners appealed.

Wide appreciation

By annulling the judgment of the Court of First Instance, the Committee of the Court of Appeal affirmed that the general aim of the division procedures is a just and equitable division in accordance with the rights of the two parties.

Although the divided property is supposed to be divided equally, a party can refute this presumption by showing a beneficial interest different from that indicated by the title of record, the commission continued.

“Therefore, the judge making the division has the discretion to deviate from the presumption if circumstances warrant regarding the shares and the rights of the parties, including any prior financial contributions made by one of the parties to maintain the joint property,” Shin wrote, adding that this gave the probate judge discretion. broader in dividing the proceeds than she realised, and that she could have already taken into account the property damage Barry had caused while the lease for life was in existence.

“Our conclusion is supported by the long-recognised exceptions to the general principle that a tenant for life is liable to the remainder for damages to the property; these include the exceptions for injuries caused by ‘acts of God’ and ‘enemies of the public,’” Shin said. and, as is appropriate here, by “the apostate himself.” Willie v. LarawayVermont Supreme Court Decision of 1892. “This last exception reflects the rationale that remainers (or returnees) who injure the building by their own actions cannot thereafter hold the life tenant liable for the damage.”

Accordingly, the Court remanded the case to the Succession and Inheritance Tribunal to determine whether the petitioners should, in fact, have obtained the contribution under the circumstances.



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