“The Land Court is a court of limited jurisdiction, as prescribed by statute. See G. L. c. 211B, § 1 (establishing Land Court as department of Trial Court). See also Bevilacqua v. Rodriguez, 460 Mass. 762, 766, 955 N.E.2d 884 (2011), quoting Riverbank Improvement Co. v. Chapman, 224 Mass. 424, 425, 113 N.E. 215 (1916) (‘The Land Court is a statutory court, not of general but of strictly limited jurisdiction’). Over time, its jurisdiction has expanded, as set by statute. See G. L. c. 185, § 1 (enumerating Land Court’s jurisdiction).” Bask, Inc. v. Mun. Council of Taunton, 490 Mass. 312, 316-317 (2022).
Consistent with this principle of limited Land Court jurisdiction, “tort actions per se,” even pure real property torts, “lie beyond the scope of the Land Court’s subject matter jurisdiction.” Sheppard v. Langone, 16 LCR 155, 156 (March 20, 2008) (Misc. Case No. 354187) (Grossman, J.), citing Lynch v. Everett, 14 LCR 180, 182 (March 24, 2006) (Misc. Case No. 308687) (Trombly, J.) and Emery v. Gould, 8 LCR 307, 310 (Aug. 22, 2000) (Misc. Case No. 240863) (Lombardi, J.). Indeed, “relevant Land Court decisions have held unwaveringly that tort claims . . . lie beyond the grant of jurisdiction conferred by G.L. c. 185, § 1 (k).” Sheppard, supra, citing Poulin v Martin, 14 LCR 72, 74 (Jan. 19, 2006) (Misc. Case No. 289073) (Sands, J.); Lynch, supra; Crapser v. Bondsville Partners, Inc., 14 LCR 432, 437 (Aug. 4, 2006) (Misc. Case No. 300634) (Sands, J.); Watson v. YMCA of Greater Boston, Inc., 14 LCR 528, 531 (Sept. 8, 2006) (Misc. Case No. 309034) (Lombardi, J.); Young v. Baker, 12 LCR 197, 199 (May 17, 2004) (Misc. Case No. 284405) (Piper, J.); Emery, supra; Taylor v. Georges, 6 LCR 340, 342 (Dec. 9, 1998) (Misc. Case No. 235058) (Green, J.); Nichols v. Chipman, 2 LCR 41, 42 (Feb. 22, 1994) (Misc. Case No. 197087) (Cauchon, J.). Therefore, “[a]bsent an underlying dispute concerning a proprietary interest in the land, [the Land Court] lacks subject matter jurisdiction to hear tort actions[.]” Sheppard, supra at 157.
An exception to this principle is when a claim of waste arises in a partition accounting. An example of Land Court jurisdiction expansion was when G.L. c. 241, § 2 was amended in 2002, to allow for concurrent jurisdiction in the Land Court and Probate Court over petitions to partition. Although a real property tort, a claim for waste can be adjudicated in the Land Court as part of a proceeding for an equitable accounting pursuant to G. L. c. 241, § 25 in a partition action.
“Waste has been defined as ‘an unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession, which results in its substantial injury.’” Matteson v. Walsh, 79 Mass. App. Ct. 402, 405 (2011), quoting Thayer v. Shorey, 287 Mass. 76, 81 (1934), ultimately quoting Delano v. Smith, 206 Mass. 365, 370 (1910). “Waste may consist of a single act or a course of harmful conduct which has ended.” Bech v. Cuevas, 404 Mass. 249, 254 (1989). The term’s “early and frequent application was in an agricultural sense, where it means a damaging use not in accordance with good husbandry.” Delano, supra at 370-371. “It generally consists in some definite physical injury. This is shown by reference to the earlier definitions, as for instance that of Blackstone, who calls it a ‘spoil or destruction in houses, gardens, trees, or other corporeal hereditaments.’” Id., quoting 2 Black. Com. 281 (Sharswood’s ed.). “It can take two forms — voluntary, resulting from the tenant’s intentional conduct, and permissive, resulting from neglect or omission.” Lodigiani v. Paré, 103 Mass. App. Ct. 140, 145 (2023).
The General Laws subject co-owners who commit waste to treble damages, as follows:
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.
G.L. c. 242, § 4. The authorities make clear that claims of waste are properly considered in equitable accounting proceedings pursuant to G.L. c. 241.
In a partition proceeding, “when apportioning the proceeds from the partition sale, [the Land Court] ha[s] the discretion to take into account damage to the property caused by” the co-owner who committed waste and who resided at the property. Lodigiani, 103 Mass. App. Ct. at 145. There is “no bar” prohibiting parties from “asserting a claim to account for [] damage [to the property] in a partition action.” Id. at 144. A court that hears a petition for partition has jurisdiction in equity over all matters relating to the real estate to be partitioned. See G. L. c. 241, § 25.
Therefore, the Land Court has the authority to resolve claims of waste in rendering an equitable accounting and distribution of partition sale proceeds. See Barrow v. Barrow, 2019 Mass. App. Unpub. LEXIS 75, at *2 (Jan. 29, 2019) (unpublished memorandum and order pursuant to Rule 1:28). In fact, this specific legal question was directly answered in Barrow, supra, as follows:
Anita argues that the Probate and Family Court lacked jurisdiction of her counterclaims seeking damages for the torts of waste, fraud, and breach of fiduciary duty. That proposition may be correct as regards damages, but a court hearing a petition for partition has jurisdiction in equity over all matters relating to the petition. See G. L. c. 241, § 25. Accordingly, the judge could properly resolve the issues of waste and breach of fiduciary duty insofar as they related to the petition (and in particular to the equitable distribution of the proceeds of the property sale), but he could not resolve Anita’s fraud counterclaims.
Id.
Indeed, an individual in possession of property “must refrain from committing waste and contribute to the usual expenses attributable . . . to her share.” Ciani v. MacGrath, 481 Mass. 174, 187 (2019). “[A]s a general matter,” parties with title interests in co-owned properties have “the ‘duty to preserve the estate for the benefit of the [other interest holders]’ and can be held liable . . . in an action for waste for property damage occurring during the tenancy.” Lodigiani, 103 Mass. App. Ct. at 144, quoting Matteson, 79 Mass. App. Ct. at 406. “The concept of waste embodies the principle that a tenant has the ‘obligation to treat the premises in such manner that no harm be done to [the other title holders.]’” Lodigiani, 103 Mass. App. Ct. at 144, quoting Delano, 206 Mass. at 370.
Equitable accounting proceedings in partition actions can be complicated and it is best to consult with an attorney about the same. The attorneys at Phillips & Angley are available to consult with property owners about partition proceedings and equitable adjustment claims for matters such as waste.
Written by Cailey N. MacEachern, Law Clerk
Copyright (c) 2024 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.
