Bar on transfer of marital home unenforceable, Massachusetts appeals court rules

The Massachusetts Appeals Court has held that a provision in a couple’s separation agreement prohibiting any future sale or transfer of the marital home without the parties’ mutual consent was unenforceable.

A Probate & Family Court judge had dismissed a motion brought by the husband, plaintiff Omar Bonilla, to partition the property for purposes of a sale, describing the agreement as “unambiguous and binding.”

But the Appeals Court reversed, finding that the agreement amounted to an unenforceable restraint on alienation because it violated the rule against perpetuities.

The wife, defendant Rosa Najera, “does not contest that the restraint would be unenforceable if it extends indefinitely, but proffers a different interpretation of the agreement — that the restraint applies only during the parties’ lifetimes,” Judge Sookyoung Shin wrote for the panel. “But not only does [the agreement] contain no such limitation, Najera fails to address [language that] binds the parties’ estates to the agreement, including ‘any obligations set forth’ therein. Reading these provisions together, we agree with Bonilla that the agreement imposes a restraint in perpetuity, which is invalid on public policy grounds.”

The court additionally found the agreement to constitute an unreasonable and unenforceable restraint on alienation according to other factors laid out in the Supreme Judicial Court’s 1983 Franklin v. Spadafora decision.

The 10-page decision is Bonilla v. Najera.

Important reinforcement

Bonilla’s litigation counsel, James G. Long III of Roslindale, said the decision is important because it reinforces the right to alienate property and should provide peace of mind for anyone with a less-than-stellar separation agreement.

“This case did not involve any contempt, modification or anything like that, which could have been done through the domestic relations law process, so partition was the only avenue for my client, who is really relieved,” Long said. “At the end of the day, this gave me confidence in the legal system.”

Ana E. Schwarz, a family law attorney in Boston, said the case affects lawyers drafting any type of contract and re-emphasizes the importance of clear language that accounts for as many contingencies as possible.

“Family law attorneys know the language immediately following the clause at issue in this case should have been: ‘consent shall not be unreasonably withheld, conditioned or delayed,’” Schwarz said. “We also understand the importance of using language in separation agreements that promotes finality and disentangles a divorcing couple so they can move forward. As stated in the opinion itself, keeping divorced parties and their estates economically bound to one another rarely promotes a worthwhile purpose and often results in future litigation.”

Stephen Kessman of Stoughton, who represented Najera, could not be reached for comment.

Motion to partition

Bonilla and Najera married in 1988 and purchased real estate as tenants by the entirety on Manning Street in Roslindale

They lived together in the home for approximately a decade until Bonilla moved out. Najera stayed in the home after Bonilla left.

In 2014, the parties entered into a separation agreement that survived as an independent contract after the divorce judgment.

Article V of the agreement, which contained the restraint in question, acknowledged “one personal property” located at 40 Manning St. in Roslindale and made the parties equally responsible for expenses and maintenance.

The article also stated the house could be sold or transferred only by mutual agreement of the parties. Meanwhile, Article VIII, paragraph B of the agreement, stated that it was binding on both parties’ estates.

The agreement also apparently contained a number of conflicting provisions. For example, Article III of the agreement stated that “no real property” existed to be divided between the parties, yet an appendage to the agreement labeled “Exhibit D” stated that the parties owned real property located at 40 Manning St., while Article V referred to the same property as “personal property.”

Additionally, Exhibit D stated within the same sentence that the property was not encumbered by a mortgage and that it had a mortgage “equal if not greater” to the value of the property.

In 2019, Bonilla filed a motion for appointment of a commissioner to partition the property, sell it by private sale or public action, and pay over the proceeds.

Judge Janine D. Rivers granted Najera’s motion to dismiss and denied Bonilla’s subsequent motion for reconsideration.

In her finding of facts, Rivers criticized the “poor draftsmanship” of the separation agreement but concluded that it was “unambiguous and binding” and thus the marital home could not be sold without Najera’s consent.

Rivers did not, however, address Bonilla’s argument that the agreement’s restraint on alienation was unenforceable.

Bonilla appealed.

Unreasonable restraint

The Appeals Court clarified at the outset that co-tenants may indeed bind themselves by agreement from asserting any right to partition, but only so long as such a restraint on alienation is reasonable.

In this case, however, the court found the restraint not to be reasonable.

Specifically, Shin said, a restraint on alienation extending beyond the period fixed by the rule against perpetuities would be contrary to public policy and thus unenforceable, and here the restraint was of unlimited duration.

Additionally, Shin said, the other Franklin factors supported a finding of unreasonableness.

For instance, under Franklin, a restraint should accomplish a worthwhile purpose, the judge noted.

“Najera does not identify any such purpose beyond ‘acknowledg[ing] the parties’ [a]greement,’” Shin wrote. “But as a matter of both policy and logic, the worthwhile purpose must be something other than enforcing the restraint.”

Shin also found that the restraint failed to meet another Franklin factor: that it apply only in narrow circumstances.

“It applies without qualification to any sale or transfer of the property, regardless of the characteristics of the transaction [and] Bonilla, the one restrained, filed his petition so that he can sell or transfer his interest in the property, showing that he wants to employ the type of conveyances prohibited by the agreement,” Shin said.

Finally, while Franklin suggested that the number of people to whom alienation was prohibited should be small, the agreement in Bonilla, by barring any transfer of the property without the parties’ mutual consent, created an unlimited number of people impacted by the restraint, the judge observed.

“In light of the above, we conclude that the restraint on alienation imposed by the separation agreement is unreasonable and unenforceable and that Bonilla is therefore entitled to pursue his petition for partition,” Shin wrote.

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