Joint Tenants with Remainder Interest in Life Estate Cannot Force Sale of Property

A Massachusetts trial court holds that a couple who had a remainder interest in a property with a life estate cannot force the sale of property. McCarthy v. Bragdon (Mass. Land Court, No. MISC 20-000118, July 9, 2020)

Donald and Susan Bragdon owned property as tenants by the entirety. They deeded a one-half interest to their daughter, Laurie Durkhan, and Terrance McCarthy as joint tenants. The deed stated that the Bragdons retained a life estate in the property.

Mr. McCarthy and Ms. Durkhan filed a claim to partition the property. The Bragdons moved to dismiss the claim, arguing that because Mr. McCarthy and Ms. Durkhan hold only a remainder interest in the property, they could not file a petition to partition. Mr. McCarthy and Ms. Durkhan countered that they had a one-half possessory interest in the property, but that even if they didn’t, they were entitled to partition with a remainder interest.

The Massachusetts Land Court grants the motion to dismiss, holding that Mr. McCarthy and Ms. Durkhan do not have the power to partition the property. According to the court, the wording of the deed gave Mr. McCarthy and Ms. Durkhan only a remainder interest in the property. The court rules that the “right of a grantee of a life estate to occupy the premises defers the rights of the remaindermen to the premises and thus the remaindermen could not maintain a partition proceeding.”

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