Petition to Require Action to Try Title under M



Specimen Petition to Require Action to Try Title under M.G.L. c. 240, §§ 1-51

[Case Caption – Land Court]

NATURE OF CLAIM

This Petition is brought under the provisions of M.G.L. Chapter 240, Sections 1-5 by James Peters, a property owner in Utopia, to compel the named Defendant to try title.2 Plaintiff petitions this Court to summons Defendant to show cause why Defendant should not bring an action to try any claim he may have to certain land owned by Plaintiff. Plaintiff also seeks declaratory and injunctive relief, permanently enjoining Defendant from entering upon Plaintiff's land.

JURISDICTION

1. The Land Court has exclusive jurisdiction over this matter pursuant to Massachusetts General Laws Chapter 185, Section 1(d).3

PARTIES

2. Plaintiff James Peters (“Mr. Peters”), owns a certain parcel of land known and numbered as 12 Main Street, Utopia, Commonwealth of Massachusetts (“the Property”).

3. Defendant Randy Douglas (“Mr. Douglas”) resides at 14 Main Street, Utopia, Commonwealth of Massachusetts.4

FACTS5

4. Plaintiff is the record owner of the Property which is shown on a plan entitled “Site Plan for 12 Main Street” located in Utopia, MA.” See Exhibit 1, attached hereto and recorded with the Nulluslocus County Registry of Deed in Book 100 Page 100.6

5. Defendant owns abutting property located at 14 Main Street, as evidenced by the deed recorded with said Deeds in Book 110 Page 110.

6. Defendant asserts an interest adverse to Plaintiff by claiming the prescriptive right to park vehicles.

7. Defendant's claimed use and actions encroaching upon the Property interferes with Plaintiff's use and enjoyment of the Property.

8. Defendant has no right, title, or interest whatsoever in any part of the Property owned by Plaintiff, and Defendant's conduct therefore constitutes a trespass.

(5-5-08) REBA Form No.49

WHEREFORE, Plaintiff demands judgment against Defendant and requests that this Court:

a. require Defendant who is claiming any right, title, or interest adverse to Plaintiff's ownership of the Property to set forth the nature of his claim;7

b. determine all adverse claims of Defendant;

c. declare and adjudge that Plaintiff is the record owner of 12 Main Street and that Defendant has no estate or interest whatsoever in or to the Property;

d. prohibit and forever bar Defendant from asserting any claim whatsoever adverse to Plaintiff's ownership;

e. order injunctive relief, permanently enjoining Defendant from using the Premises; and

f. grant such other and further relief as this Court deems just.

[Signature]

[Date]

(5-5-08) REBA Form No.49

Notes and Comments

1. This is not a traditional complaint. By filing this petition, Plaintiff seeks the Court to summons the defendant to present his/her/its claims, thereby switching the burden to the defendant.

2. In accordance with M.G.L. c. 240, § 1 A petition to require action to try title may be brought “[i]f the record title of land is clouded by an adverse claim, or by the possibility thereof.” A person has standing to bring the petition if he or she is in possession of land claiming: (1) an estate of freehold; or (2) an appurtenant easement of record. Id. The claimant must have the possession or enjoyment of the easement, and not a mere title thereto. Bowditch v. Gardner, 113 Mass. 315 (1873). An estate of freehold must possess two qualities: (a) any interest that runs with the land; and (b) indeterminate duration. The requirement that an easement be appurtenant means an easement which runs with the land, as opposed to an easement in gross.

3. M.G.L. c. 185 § 1(d) provides: “The land court department shall have exclusive original jurisdiction of the following matters: . . . (d) petitions to require actions to try title to real estate, under sections one to five, inclusive, of chapter two hundred and forty.

A petition to try title is not available against the Commonwealth of Massachusetts. M.G.L. c. 240 § 5.

4. A petition in the land court must state the petitioner’s interest, describe the land, the claims, and the possible adverse claimants so far as known to the petitioner. M.G.L. c. 240 § 1.

5. A petition in the land court must state the petitioner’s interest, describe the land, the claims, and the possible adverse claimants so far as known to the petitioner. M.G.L. c. 240 § 1.

6. 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. M.G.L. c. 240 § 1.

7. If personal service of the petition cannot be made, “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.” M.G.L. ch. 240 § 2.

Though M.G.L. c. 240 § 2 allows for notice by publication, the practitioner should be cautious in relying on only this form of service because the statute provides for the recovery of damages. M.G.L. c. 240 § 4 provides: “A party against whom, without other notice than publication in a newspaper, a judgment or decree has been rendered under § 2 and whose right is barred thereby, may recover from the person in whose favor such judgment or decree was entered… 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.”

Furthermore, the U.S. Supreme Court held in Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (1983) that “notice by mail or other means as certain to insure actual notice is minimum constitutional precondition to proceeding which will adversely affect liberty or property interests of any party.” M.G.L. c. 240 § 4 and Mennonite Bd. of Missions indicate that while notice by publication is allowed, it is generally viewed unfavorably by the courts.

Note: REBA’s Specimen Litigation Forms are models or examples to be used in specific circumstances. Consult applicable law prior to using the forms.

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