A husband and wife and the wife’s mother purchased property in Westford, Mass., as joint tenants. After the spouses divorced and the mother passed away, the wife sold the property to a third party. The purchaser later sought to refinance her loan and was told of a potential title defect because there was a question of whether the mother’s descendants owned her interest in the property. The purchaser filed a complaint to address the possible issue.
The case is Sona Pillai v. David Scalia & others (Appeals Court of Massachusetts, No. 23-P-138).
Christine Bohenko, her then husband Gregory Bohenko, and her mother Priscilla Scalia acquired title to property in Westford, Mass., via quitclaim deed on Oct. 27, 1993. The deed conveyed the property to the three of them as joint tenants. At some point thereafter, Christine and Gregory Bohenko divorced. Gregory Bohenko then executed a quitclaim deed on Sept. 10, 2002, granting all his rights, title, and interest in the property to Christine Bohenko.
Priscilla Scalia died in March 2012. Her will left her interest in the property to David Scalia and John Scalia, if she had an interest in the property at the time of her passing. In September 2018, Chrstine Bohenko sold the property to Sona Pillai, believing she was the sole owner of the property after Priscilla Scalia died by operation of the joint tenancy.
Pillai sought to refinance her mortgage in 2021 and an attorney for the lender notified her of a possible title defect resulting from the 2002 quitclaim deed from Gregory Bohenko to Christine Bohenko. Pillai filed a complaint against John and David Scalia and moved for summary judgment. The trial court granted her motion, determining that while Gregory Bohenko’s conveyance of his interest to Christine Bohenko in 2002 terminated the joint tenancy, it was clear they intended for the joint tenancy between Christine Bohenko and Priscilla Scalia to remain intact. The court ordered the 2002 deed be reformed to identify the grantees as Christine Bohenko and Priscilla Scalia as joint tenants. The court also concluded that Pillai was a bona fide purchaser and judgment was entered for her. David and John Scalia appealed.
The appellate court affirmed the lower court’s ruling.
David and John Scalia argued that the 1993 deed established a joint tenancy only between the Bohenkos and that Priscilla Scalia was a tenant in common, allowing her interest in the property to pass through her will. The appellate court agreed with the lower court that the plain language of the 1993 deed clearly expressed an intent to create a joint tenancy as to all three of them.
“The defendants also appear to argue that there is a dispute of fact as to whether the parties to the 1993 transaction intended to create a joint tenancy,” the court stated. “They rely in particular on two mortgages that Christine and Priscilla executed in 2002 and 2003, which do not mention a joint tenancy. But putting aside that the mortgages reference no tenancy at all and thus have questionable relevance, if any, to Christine and Priscilla’s intent, we cannot consider parol evidence to create an ambiguity in the deed when its language is unambiguous.”
The defendants also argued that the judge improperly reformed the 2002 deed to keep the joint tenancy intact.
“Here, the undisputed facts demonstrate that Christine and Gregory did not intend for their transaction to sever the joint tenancy between Christine and Priscilla,” the court stated. “In support of her summary judgment motion, the plaintiff submitted an affidavit from Christine, in which she averred that ‘the deed from Gregory was only intended to grant his interest in the [p]roperty to [her]’ and that ‘it was not intended to change the fact that [Priscilla] and [Christine] would own as joint tenants so that when one ... died, the other would be the sole owner.’ As the judge observed, this affidavit is the only material evidence in the record regarding the intent of the parties to the 2002 transaction. The defendants do not point to any contrary evidence, nor do they contest that the affidavit established that any severance of the joint tenancy resulted from a mutual mistake between Christine and Gregory. Thus, because ‘the expected legal consequences were not provided for in the deed,’ the plaintiff was ‘entitled to have the deed reformed to carry out the expressed intent of the parties.’
“We are unpersuaded by the defendants’ suggestion that the plaintiff had the burden of showing that Priscilla herself intended for the joint tenancy to survive the 2002 deed,” the court continued. “Priscilla was not a party to the 2002 transaction, and the defendants do not explain why the intent of a nonparty matters in determining whether an instrument should be reformed. The one case they cite in support, La Fleur v. C.C. Pierce Co., states to the contrary that the relevant inquiry is whether ‘there has been a mistake between the parties as to the subject matter of a contract.’ The defendants’ bare assertion otherwise does not rise to the level of adequate appellate argument.”
They also challenged Pillai’s status as a bona fide purchaser.
“The defendants’ only argument on appeal as to why the plaintiff was not a bona fide purchaser is that she was purportedly on constructive notice of the title issue stemming from the 2002 deed,” the court stated. “But again, the defendants have not supported their argument with any relevant legal authority and have thus waived it. In any event, waiver notwithstanding, we see no basis for imputing constructive notice to the plaintiff. Constructive notice arises ‘by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of, such as a registered deed.’ Purchasers are not on constructive notice of a title defect unless they could have discovered it ‘by means of a search conducted in the conventional method.’
“The record here presents no genuine dispute that the plaintiff conducted a reasonable title examination when she purchased the property,” the court continued. “The plaintiff obtained a mortgage loan and title insurance in connection with the purchase. A title search conducted by the lender’s closing attorney did not uncover any defect, and the title policy did not list any encumbrance other than the mortgage. Likewise, when the plaintiff refinanced her mortgage in 2020, the title policy issued to the new lender did not identify any defect. These facts are undisputed, and the defendants offered no evidence to show that the plaintiff did not comply with standard title examination practices. They have thus failed to establish a genuine dispute of fact with regard to constructive notice.”