SALLY C. PEW et al.
ROBERT N. SAYLER et al
Argued February 12, 2015.
On the briefs:
James T. Kilbreth, Esq., and Adrianne E. Fouts, Esq., Drummond Woodsum, Portland, for appellants Sally C. Pew and the Trustees of the John P. Cooke Disclaimer Trust.
Deborah M. Mann, Esq., and Tudor N. Goldsmith, Esq., Jensen Baird Gardner & Henry, Portland, for appellees Robert and Martha Sayler, John and Marcia Hincks, and Peter and Maria Nickles.
At oral argument: James T. Kilbreth, Esq., for appellants Sally C. Pew and the Trustees of the John P. Cooke Disclaimer Trust.
Deborah M. Mann, Esq., for appellees Robert and Martha Sayler, John and Marcia Hincks, and Peter and Maria Nickles.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.
[¶1] Plaintiffs Sally C. Pew and the Trustees of the John P. Cooke Disclaimer Trust (Cooke) own most of Mouse Island in the Town of Southport in common with defendants Robert and Martha Sayler, John and Marcia Hincks, and Peter and Maria Nickles (collectively, the Other Owners).
[¶2] Pew and Cooke appeal from a summary judgment entered by the Superior Court (Lincoln County, Hjelm, J. ) in favor of the Other Owners on Pew and Cooke's complaint for equitable partition, and from the court's post-trial judgment on the Other Owners' counterclaim awarding them damages for nonpayment of commonly-shared expenses. Pew and Cooke contend that the court erred in determining that (1) a right of first refusal (ROFR) in the parties' deeds and contractual agreements constituted a waiver of their right to partition, (2) the right of first refusal did not violate the rule against perpetuities, (3) the parties' agreements required the employment of a full-time caretaker on the island absent a two-thirds vote to the contrary, and (4) Pew and Cooke were liable for certain commonly-shared expenses that they had not paid.
[¶3] We conclude that the rights of first refusal in the parties' deeds violate the rule against perpetuities and are therefore void as a matter of law. The rights of first refusal in the parties' separate contractual agreements with one another, however, are valid vis-à-vis each other and constitute an effective waiver of these parties' rights to equitable partition. On that
basis, and because we conclude that the court did not err in apportioning expenses, we affirm the judgment.
A. The Land at Issue
[¶4] The historical facts are not disputed. Excepting three houses and the land underlying them that they own individually, the parties jointly own Mouse Island. The three separately-owned houses are referred to as Mousetrap, which is owned by Sally Pew; Brown House, in which the Nickleses and the Saylers each own a one-half undivided interest; and Gray House, in which the Hinckses and Cooke each own a one-half undivided interest. Pew owns a one-third undivided interest in the island's common property; the Nickleses, Saylers, Hinckses, and Cooke each own a one-sixth undivided interest.
B. Relevant Agreements
[¶5] Several agreements entered into by the parties or their predecessors in title are relevant to our analysis.
1. August 21, 1978, Letter of Agreement
[¶6] A letter setting out the basic terms of the purchase of Mouse Island, signed by these parties or their predecessors, contained the following provisions:
[Nickles, Pew, and Sayler] understand that the caretaker is receiving $700 a month plus payment for utilities. [They] agree that the caretaker should continue in his position and receive the same monthly payments.
All the parties are agreed that any proposal for future development on the Island would require the written, unanimous concurrence of all owners of the Island. Further, it is agreed that, if any owners wish to dispose of any or all of his or her interest, that interest will first be offered to the Other Owners to provide them with the opportunity first to purchase the interest.
It is agreed that an association of owners will be created to collect assessments from the owners for payment of the caretaker's salary, real estate taxes, and general maintenance. These assessments will be divided equally among the three principal houses . . . . Each of the parties understands that in situations where the caretaker must call in outside assistance to work on a project affecting only a particular house, the owner of that house will pay for the outside assistance. Work done by the caretaker on common Island property, such as the sea wall, studio, tennis courts, etc., will be shared by all owners. Further, it is understood that the caretaker's work on each of the homes on the Island will not change the basi[c] intention of the parties to share equally the caretaker's salary and benefits.
2. December 26, 1978, Purchase and Sale Agreement
[¶7] A formal purchase and sale agreement executed by the parties or their predecessors contained two relevant provisions: (1) a requirement that a right of first refusal be included in the deeds, and (2) an agreement that the owners of Mouse Island would create an association within 120 days " for the purpose of maintaining all the facilities, buildings and improvements on or related to Mouse Island excepting [the three separately-owned houses] . . . and generally governing the management of the Island."
3. The Deeds
[¶8] As provided in the purchase and sale agreement, the deeds leading to the
current ownership situation on Mouse Island each contained the following clause:
In the event that the grantee desires to sell the real estate herein conveyed, the grantee shall prior to the acceptance of any offer received by him/her make a similar offer excepting only as to the time set for acceptance to his/her dwelling co-tenant of record and to his/her co-tenants in Mouse Island. His/her dwelling co-tenant shall have 30 days in which to accept the grantee's offer. If his/her dwelling co-tenant accepts the offer, all other offers made by the grantee shall automatically be terminated. If his/her dwelling co-tenant does not accept the offer within said 30-day period, the Island co-tenants shall have 15 days in which to accept the grantee's offer. In the event that two or more Island co-tenants attempt to accept the offer after the dwelling co-tenant's time for acceptance has terminated, the first acceptance from an Island co-tenant received by the grantee shall be binding and other attempted acceptances after said receipt shall be void. Closing shall be within 90 days of the acceptance of the grantee's offer . . . .
[¶9] The deed from John P. Cooke to his successors, the Cooke Trustees, inadvertently omitted the clause; in entering a partial summary judgment in this case the Superior Court, without objection, reformed the ...