Massachusetts Agencies

License or Order to Sell: Appeal

Deeds and Conveyances: Special Rules Regarding Fiduciaries

The effect of an appeal after the granting of a license to sell is addressed in G.L.c. 215, §9A. If no appearance or objection was made against the granting of the license to sell, or if one was made but was later withdrawn, "[t]he acts of an executor . . . performed after the entry of the decree . . . authorizing him to sell . . . shall be valid to the same extent as if said appeal period had expired without an appeal . . . ."

A similar situation used to be the case under bankruptcy law, but has since been modified. Under 11 U.S.C. §363(m)[1] it is provided that if a subsequent appeal has been filed in connection with the bankruptcy court's order permitting a sale (other than an appeal based on jurisdictional or due process grounds) , the order remains in effect and the trustee may act thereunder, and the sale is good even if the order is revered on appeal, unless the order of the court has been stayed by the lower court. However, under the provisions of Rule 6004(g)[2] the order is now automatically stayed, unless the court otherwise orders. The rule leads to the conclusion that the default situation is exactly opposite to that previously in place, i.e., that the order now is stayed without any action on the part of the court and that for the statute's provisions to apply it is presently necessary for the court to enter an order lifting the stay.

1 11 U.S.C. §363(m): "The reversal or modification on appeal of an authorization under subsection (b) or (c) of this section of a sale or lease of property does not affect the validity of a sale or lease under such authorization to an entity that purchased or leased such property in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and such sale or lease were stayed pending appeal."

2 Rule 6004(g) : "An order authorizing the use, sale or lease of property other than cash collateral is stayed until the expiration of 10 days after entry of the order, unless the court orders otherwise."