Tompkins v. Buhro

STATE OF MAINE SUPERIOR COURT
AROOSTOOK, ss. LOCATION: Caribou
Docket No. CARSC-RE-2021-024

Melissa Tompkins, )
Plaintiff )
v. )
)
Jordan Buhro, ) JUDGMENT OF PARTITION
Defendant )
)
Maine State Housing Authority, )
Party in Interest )

Currently pending is Plaintiff's Complaint for Partition of Real Estate. A bench

trial was conducted in Caribou on May 3, 2022. Plaintiff was present, represented by

Jefferson Ashby, Esq. Defendant was present, representing himself. The Party in Interest

was present, represented by Kady Huff, Esq. After hearing and based upon the evidence

presented, the court makes the following findings of fact, conclusions of law, and

resulting judgment:

Background

Plaintiff and Defendant are the owners of a parcel of real estate situated at 12

Dumond Road, Fort Fairfield, Maine (hereinafter "the Property"). The Property consists

of a single family home and land. The Property was acquired by the parties by Warranty

Deed of Ashley Ames to Melissa Ann Tompkins and Jordan Chris Buhro as joint tenants

dated September 7, 2017 and recorded in the Southern Aroostook County Registry of

Deeds at Book 5699, Page 51. See, Plaintiffs Exhibit 1. At the time of the purchase, the

Plaintiff and Defendant had been in a relationship for approximately five years. The
(

parties did have a down payment for the purchase, but neither party provided credible

evidence as to the amount or source of the down payment. The parties financed the

balance of the purchase price by obtaining a loan from Machias Savings Bank in the

amount of $85,858.00. See, Plaintiff's Exhibit 2. The loan was secured by a mortgage on

the Property dated September 8, 2017 and recorded in the Southern Aroostook County

Registry of Deeds at Book 5699, Page 55. See, Plaintiffs Exhibit 3. Machias Savings Bank

assigned the Mortgage to Maine State Housing Authority by Assignment dated October

10, 2017 and recorded in the Southern Aroostook County Registry of Deeds at Book 5736,

Page 73. See, Plaintiffs Exhibit 4.

The parties resided on the Property together until 2018 when Plaintiff moved out.

While both parties were residing at the Property, they both contributed to the payment

of the mortgage and expenses related to the Property. At the time Plaintiff moved out,

the parties agreed that Defendant would retain possession of the Property and he would

refinance the indebtedness to remove Plaintiff from the obligation. From the outset,

Plaintiff has maintained the position that she was not seeking to recover any funds for

her share of the equity in the Property, she was merely seeking to walk away and be

relieved of the obligation on the promissory note and mortgage. Despite repeated

attempts by Plaintiff to contact Defendant to discuss the refinance, Defendant has

essentially ignored Plaintiff.

From 2018 through to the date of the hearing, Defendant has been in exclusive

possession of the Property. He has paid nearly all of the expenses related to the property

including the mortgage, taxes, insurance, and upkeep with the exception of one payment
(

on the mortgage by Plaintiff in the amount of $659.00 on September 28, 2020. See,

Plaintiffs Exhibit 9. Plaintiff made this payment after receiving delinquency notices from

the servicer for the Maine State Housing Authority. See, Plaintiffs Exhibit 6. Curiously,

all notices related to the mortgage from the servicer and from the insurer of the Property

went to Plaintiff in Sidney, Maine and not to the Defendant at the Property. See, Plaintiffs

Exhibits 6 and 7. Plaintiff never communicated to Defendant about any delinquency

notices related to either the mortgage or the insurance.

While occupying the Property, Defendant did perform maintenance and some

improvements to the Property. He expended $250 for painting and $400 for wood for

hallway improvements. Defendant also installed a new heat pump hot water heater, but

there was insufficient evidence as to the cost associated with this upgrade. There was

insufficient credible evidence for the court to determine the value of Defendant's labor in

making the improvements. His estimated figure of $10,000 in improvements was not

supported by the evidence at trial. Defendant estimates that with the current real estate

market, the Property is likely worth over $100,000.00. As of April 22, 2022, the net payoff

of the mortgage indebtedness was $77,192.05. See, Plaintiffs Exhibit 5.

Beginning in August of 2018, Plaintiff took steps to proceed through an attorney

to facilitate the release of her interest in the real estate to Defendant in exchange for his

refinance of the indebtedness. See, Plaintiffs Exhibit 10. Defendant made an effort to

refinance the Property on the eve of trial and was rejected. See, Defendant's Exhibits A and

B.
,.

There have been no further convenances related to the Property. Maine State

Housing Authority maintains a first position security interest in the Property by virtue of

its mortgage. Plaintiff seeks partition by sale and seeks to waive any equity interest in

the Property in accordance with their agreement at the time she left the property.

Defendant seeks to have the Property set aside to him. Maine State Housing Authority

takes no position on the case, provided its first position security interest is recognized.

Discussion

Pursuant to 14 M.R.S.A. §6501, "[p]ersons seized or having a right of entry into

real estate in fee simple or for life, as tenants in common or joint tenants, may be

compelled to divide the same by a civil action for partition." Statutory partition may be

carried out only by physical division of the jointly owned real estate or time-sharing of

its use. See, Libby v. Lorain, 430 A.2d 37, 39 (Me. 1981)(Citing, Hanson v. Willard, 12 Me.

142 (1835). Given the composition of the Property, the court finds that a physical division

of the property is impractical. Given the relationship between the parties as evidenced

by their presentation during the hearing, any type of time-sharing would be unworkable

and result only in further conflict that would materially injure the rights of the parties.

Id.( Citing, Williams v. Coombs, 88 Me. 183(1895). "Partition is also available to joint owners

of real estate through the equity jurisdiction of the Superior Court." Id.; 14 M.R.S.A.

§§6051(7) and (13).

Defendant contends that the Property should not be sold and that the Property

should be set aside to him. In this respect, this case is very similar to the Libby v. Lorain

case. In that matter, Mrs. Lorain had been living in the home for many years and sought
the same relief as requested by Defendant herein. The Law Court noted, "the Superior

Court had no choice but to reject that alternative mode of partition. Mrs. Lorain failed to

show that she had the financial capacity to arrange to have Libby discharged from the

mortgage obligation and pay him an amount equal to one half of their equity in the

property. Without Mrs. Lorain's being able to carry out her side of a 'partition by buy­

out,' the court could not equitably honor her request." Libby v. Lorain, 430 A.2d 37, 39-40

(Me. 1981).

The evidence presented by Defendant was that he cannot refinance at this time to

remove Plaintiff from the indebtedness. Therefore, the only viable method of partition is

equitable partition by sale. Given the costs associated with a sale, Defendant shall be

permitted an additional window of time to effectuate the refinance. In the event he

continues to be unable to do so within the time period identified, the Property shall be

sold.

In the event the property is sold in accordance with this Judgment, the court must

allocate the division of the sales proceeds after deductions for the costs of sale. As noted

above, since the separation of the parties Defendant has been maintaining the Property.

"Regarding the cost of maintaining property, 'the general principle is that when one

cotenant pays more than his share of taxes, mortgage payments, and other necessary

expenses, equity imposes on each cotenant the duty to contribute his proportionate

share.' 59A Am. Jur. 2d Partition§ 226 (1987); see, e.g., Biondo v. Powers, 743 So. 2d 161, 164

(Fla. Dist. Ct. App. 1999) (stating that a cotenant is entitled to a credit from the proceeds

of a partition sale for his cotenant's share of the' obligations or expenses of the property,
consisting of mortgage payments, insurance, taxes, and necessary repairs')." Palanza v.

Lufkin, 2002 ME 143, P11, 804 A.2d 1141, 1145. In this matter, the Defendant has also had

exclusive possession and use of the property since the separation by agreement of the

parties. Id. at ,r14 ("A co-owner's exclusive use of jointly held property is a factor

offsetting his expenditures on the property"). The court finds that the Plaintiff is entitled

to such an offset and that an equitable division would entail an award of the sale proceeds

above the costs of sale and the mortgage indebtedness to Defendant for his maintenance

and improvements.

Judgment is hereby GRANTED in favor of Plaintiff on her complaint and
equitable partition is ordered, as follows:

1. This Judgment pertains to that certain lot or parcel of land, together with the
buildings and improvements thereon, situated at 12 Dumont Road, Fort Fairfield,
Maine, being more particularly referenced and described in the Warranty Deed of
Ashley Ames to Melissa Ann Tompkins and Jordan Chris Buhro as joint tenants
dated September 7, 2017 and recorded in the Southern Aroostook County Registry
of Deeds at Book 5699, Page 51. The Property is hereby set aside to the parties as
Tenants in Common, subject the provisions set forth in this Judgment of Partition.

2. Refinance Option. Within 90 days from the date on which this Judgment becomes
final, Defendant shall either:

a. Refinance the entire outstanding indebtedness regarding the Property in
his name alone, removing Plaintiff from any such obligation; or

b. Send written notice to Plaintiff by United States mail, postage prepaid, at
her last known address that he elects not to exercise this Refinance Option.

c. During this Refinance Option period, Defendant shall be entitled to
exclusive possession of the Property and shall be responsible for all
maintenance, taxes, insurance, mortgage payments, and expenses related
to the Property.

d. Plaintiff shall execute and deliver any and all documentation reasonably
necessary to effectuate the refinance upon request.
e. In the event the Refinance Option is not exercised by Defendant, Defendant
shall quit and deliver possession of the Property to Plaintiff the earlier of
100 days from the date on which this Judgment becomes final or seven (7)
days after the date of the notice to Plaintiff as referenced in paragraph 2(b)
above.

3. Sale Option: If Defendant does not exercise such Refinance Option, then no later
than the 100th day following the date on which this Judgment becomes final,
Plaintiff shall cause the Property to be listed for sale and sold and, to this end, she
shall have sole and exclusive authority to do the following:

a. Plaintiff shall designate and engage the services of a licensed real estate
broker or brokers to list and sell the Property in a commercially reasonable
manner at a price reasonably approximating its fair market value based
upon the recommendation(s) and advice of such broker(s);

b. Plaintiff is hereby granted authority to act and shall act in good faith as the
authorized agent of Defendant regarding the sale of the Property. Plaintiff
is granted specific authority to execute and deliver any and all deeds,
declarations, releases, and transfer documents necessary to effectuate the
sale of the Property in Defendant's stead;

c. Plaintiff shall enter into and execute a bona fide contract for the sale of the
Property and thereafter transfer and convey all of Plaintiff1s and
Defendant1s right, title and interest in and to the Property to a bona fide
purchaser by deed;

d. The net sales proceeds shall be paid and applied in the following order of
priority:
i. All sums necessary to pay off the mortgage indebtedness to Maine
State Housing Authority;
ii. Reimbursement to Plaintiff for any costs or expenses related to the
Property from the surrender of the premises by Defendant through
the date of closing; and
iii. The remaining balance, if any, shall be distributed to Defendant.

e. For the purposes of this Judgment, 11 net sales proceeds 11 shall mean the gross
proceeds from the sale of the Property less
i. Payoff amounts for all liens and encumbrances on the Property
jointly owed by the parties;
ii. Real estate broker 1s commission(s);
iii. All usual and customary closing costs, including, but not limited to,
real estate taxes and adjustments; and
iv. Reasonable attorney's fees incurred by Plaintiff relating to and/ or in
any way connected with listing, selling and/ or closing the Property
pursuant to this Judgment.

f. Following the completed closing transaction, Plaintiff shall forthwith
transmit to Defendant a bank or certified check for his share of the
remaining balance of the net sales proceeds, as aforesaid, together with a
written report and accounting of the sale.

4. Writ of Possession: Defendant is hereby directed to quit and vacate the Property
on or before 5:00 p.m. on the 100th day from the date on which this Judgment
becomes final or seven (7) days after sending the notice to Plaintiff as referenced
in paragraph 2(b) above. Writ of Possession to issue after 100 days from the date
on which this Judgment becomes final or seven (7) days after the date of
Defendant's notice as referenced in paragraph 2(b) above, whichever sooner
occurs, upon request. Defendant shall in no way cause damage or permit waste
to occur on the Property before or after he surrenders possession of the Premises.

This Judgment is binding upon, and shall inure to the benefit of, the parties, their
heirs, successors, personal representatives and assigns.

Pursuant to M.R. Civ. P. 79(a), the Clerk is directed to enter this Decision and
Order on the Civil Docket by a notation incorporating it by reference.

ENTERED ON THE DOCKET 1 5 / 11 J l,~~·1