Specimen Complaint to Establish Title under M.G.L. c. 240, §§ 6-10

[Case Caption –N.B. includethe named Plaintiffs and Defendants and add as additional defendants “and such persons, if any unascertained, not in being, unknown, within or without the Commonwealth, or who cannot be served with process, their heirs or legal representatives or such other persons as shall become their heirs, devisees or appointees]

  1. This is an equitable action under M.G.L. c. 240, §§ 6-10 to establish title to certain real estate in Utopia, Nullus LocusCounty, Massachusetts.
  1. Plaintiff, Petrini Development, LLC, is a Massachusetts limited liability company with offices in Utopia, Massachusetts.
  1. The Defendants are the heirs or legal representatives of George B. Shaw and persons claiming under George B. Shaw, who may claim an interest in certain land in Utopia, Nullus Locus County, Massachusetts by purchase, descent or otherwise.
  1. Plaintiff holds title to certain real estate in Utopia, Massachusetts situated on the southerly side of Elm Street and shown as Lot 1 on a plan entitled, “Land Owned by Ajax Company in Utopia, Massachusetts Samual Surveyor, R.P.L.S dated June 25, 2006”(hereinafter referred to as the “New Plan”) recorded with the Nullus LocusCounty Registry of Deeds in Plan Book 436, Page 14.
  1. Plaintiff acquired title to Lot 1 in Utopiaby a deed from Ajax Company dated February 16, 2007 and recorded with said Deeds in Book 15628 , Page 209. Lot 1 contains 1.27 acres ±.
  1. A portion of Lot 1 is made up of land in Utopia shown as Lot 67 on a plan entitled “Utopia Heights Plat No. 2” dated June 1874 (hereinafter referred to as the“Old Plan”) and recorded with said Deeds in Plan Book 4, Page 99. Said Lot 67 is at the most northeasterly corner of Lot 1.
  1. Hebron Development Companyconveyed Lot 67 on the Old Plan to “George B. Shawof Utopia” by a deed dated December 10, 1874 and recorded with the Nullus Locus County Registry of Deeds on September 15, 1877 in Book 365, Page 403.

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  1. No deed from George B. Shawconveyingsaid Lot 67 has ever been recorded with the Nullus LocusCounty Registry of Deeds and no record of a probate for George B. Shawis on file with the Nullus LocusCounty Probate and Family Court.
  1. Smith Chemical Company conveyed to Jones Oil Company certain land in Utopia, Massachusetts which included all grantor’s right, title and interest in Lot 67 as shown on the Old Plan by a deed dated December 31, 1965 and recorded with the Nullus LocusCounty Registry of Deeds in Book 1476, Page 473.
  1. Plaintiff and its predecessors in title have adversely possessed Lot 67 as shown on the Old Plan under color of title since December 31, 1965.

Wherefore, Plaintiff demands that the Court:

  1. Order notice to the Defendants pursuant to M.G.L. c. 240, § 7.
  2. Declare and establish that Plaintiff owns the land in Utopia, Bristol County Massachusetts situated on the southerly side of Bliss Avenue and shown as Lot 67 on a plan entitled “Utopia Heights Plat No. 2” dated June 1874 and recorded with said Nullus LocusCounty Registry of Deeds in Plan Book 4, Page 99 free and clear of any claims or interests of the Defendants.
  3. Order such other relief as the Court may deem just.

[Date][Signature]

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Notes and Comments

1. This action may be brought in the Land Court or Superior Court to establish title and is a “proceeding in rem against the land, and a judgment establishing or declaring the validity, nature or extent of the plaintiff's title may be entered, and shall operate directly on the land and have the force of a release made by or on behalf of all defendants of all claims inconsistent with the title established or declared thereby.” M.G.L. c. 240, § 10. A Court also may order service in such an action by posting at the Registry of Deeds and/or publication. M.G.L. c. 240, § 7.

2. Service by publication is sufficient to enable a court having jurisdiction over the subject matter to adjudicate an in rem proceeding. SeeGulda v. Second National Bank of Boston, 323 Mass. 100, 104-105 (1948).

Note that 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.” Therefore, 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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Sample Answer-Affirmative Defenses

First Affirmative Defense

The plaintiff's complaint fails to state a claim or claims upon which relief can be granted.

Second Affirmative Defense

The plaintiff's complaint does not set forth an actual controversy between the parties within the jurisdiction of this court.

Third Affirmative Defense

While NulluslocusCounty Superior Court may have in personam jurisdiction over defendants Robert and Julie Dodge, this Court lacks either quasi in rem or in rem jurisdiction over real property lying in NorthCounty. NulluslocusCounty Superior Court therefore lacks jurisdiction to grant the relief sought by the Complaint.

Fourth Affirmative Defense

The plaintiff's complaint fails to join one or more indispensable parties as required by c. 231A, §8; Mass.R.Civ.P. 12(b)(7) and 19:

(a) the two mortgage lenders (or their current assignees of record) who hold outstanding mortgages on the subject property ; and,

(b) the Town of Utopia Planning Board, which endorsed the survey plan which the plaintiff is seeking to invalidate (see Sixth Affirmative Defense, set forth below).

Fifth Affirmative Defense

Defendants Robert and Julie Denver cannot be ordered by this Court to commit the tort of waste, or to otherwise act in violation of the terms and conditions of the recorded mortgages on their property, including but not limited to paragraph 6 of their two mortgages, both of which are entitled "Preservation and Maintenance of Property".

Sixth Affirmative Defense

The plaintiff's claims are barred by the doctrine of estoppel.

Seventh Affirmative Defense

The plaintiff's claims are barred by the applicable statute of limitations.

Eighth Affirmative Defense

The plaintiff's claims are barred by the doctrine of laches.

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Ninth Affirmative Defense

The plaintiff's claims are barred by the doctrine of waiver.

Tenth Affirmative Defense

The plaintiff's claims are barred by the doctrine of "clean hands."

Eleventh Affirmative Defense

The blanket prohibition in the subject Agricultural Preservation Restriction against "the construction and/or placement of one or more dwelling unit(s) on the Premises" violates the mandated statutory exception for "dwellings used for family living by the land owner his immediate family or employees". G.L. c. 132A, §31, paragraph 3.

Twelfth Affirmative Defense

This action should be dismissed as an attempt to perpetrate a fraud upon the Court, in that the plaintiff and its employees and legal counsel have misrepresented facts to the court which they know or have reason to know are untrue. Further, defendant acting by and through its employee Richard Dooley has committed the crime of perjury.

Thirteenth Affirmative Defense

The Plaintiff’s claims are barred by the rule against perpetuities.

Fourteenth Affirmative Defense

The Plaintiff’s claims are barred as they constitute an invalid restraint upon alienation.

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© Real Estate Bar Association for Massachusetts

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