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Massachusetts Agencies

Life Tenant: Possession: G.L.c. 242 §1

Liens, Special

In Nautican Realty Company, Inc. v. Nantucket Shipyard, Inc., 28 Mass.App.Ct. 902, 545 N.E.2d 1177 (1989) there was a lease which provided, among other things, that the tenant was required to keep the demised premises and its structures in good repair. I presume that the lease permitted the landlord to enter and terminate the lease for the breach of this or any other condition, though the case doesn't tell us that. The question before the court was whether the landlord was entitled to enter and take possession (and thereby terminate the lease). The court decided (sort of) that the landlord did not or could not take possession under summary process proceedings due to a technicality. However, the court noted that G.L.c. 184, §18 permits recovery of possession by summary process proceedings or "such other proceedings provided by law," and ruled that the proceedings under G.L.c. 242, §1 were such proceedings. By ruling that the landlord could have possession the terms of the lease became self-executing, thus allowing the landlord to terminate the lease under its terms.

Although G.L.c. 242, §1 permits its use in recovering possession and suing for damages caused by waste[1], it does not appear that such possession, once obtained, would have the same result as under a lease which specifically allowed for termination in such an instance. The interest in the land would continue in the life tenant, but not only could the common law right to damages for waste be then sustained, but the remaindermen could also have the right to be in possession to secure the property.

1 My understanding is that at common law a remainderman might sue for damages to the estate in the hands of the life tenant, but the life tenant was nevertheless entitled to exclusive possession. The statute permits the remainderman to take possession, in addition to allowing for an action for waste. In Powell on Real Property, Matthew Bender (1991), ¶ 637 it is recognized that the rights of remaindermen to enforce actions against life tenants in possession for waste, although not necessarily established by statute, was nonetheless regulated thereby . "[T]he owners of succeeding estates of inheritance needed protection against improper conduct by the person in possession, but it was not uniformly available.