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Kulis v. Winn

United States District Court, D. Maine

September 19, 2019

DOUGLAS KULIS, et al., Plaintiffs
KATHERINE WINN, Defendant and ORIN D. WINN, Party-in-Interest/ Counterclaim Defendant


          John C. Nivison, U.S. Magistrate Judge.

         This matter involves a dispute regarding the future ownership of two parcels of land and the improvements thereon in Georgetown, Maine. Plaintiffs ask the Court to order Defendant, in her capacity as personal representative of the Estate of Elizabeth Hersant, to sell her interest in Lot 38 on Marrtown Road in Georgetown to Plaintiff Margaret Winn and sell her interest in Lot 39 on Marrtown Road to Plaintiff Douglas Kulis. Defendant seeks the equitable partition of Lot 38 and the statutory partition of Lot 39.[1]

         The Court conducted a bench trial at which the parties presented the testimony of witnesses, including expert witnesses, and other evidence. Following the trial, the parties filed written argument.

         Findings of Facts

         After consideration of the evidence presented at trial, the Court finds the following facts:

         1. Lot 38 on Marrtown Road in Georgetown, Maine is a 4.1 acre parcel. Plaintiff Margaret Winn (Margaret) owns 25% of the lot, Party-in-Interest Orin Winn (Orin) owns 50% of the lot, and Defendant Katherine Winn (Katherine or Defendant) owns 25% of the lot as tenants in common.

         2. Lot 39 is a 25-acre parcel on Marrtown Road. Plaintiff Douglas Kulis (Douglas) owns 75% of the lot and Katherine owns 25% of the lot as tenants in common.

         3. Margaret and Orin are cousins. Margaret is Douglas’ mother. Elizabeth Hersant (Elizabeth) was Margaret’s sister. Katherine is Elizabeth’s daughter. Elizabeth died on June 28, 2016.

         4. The lots, which have frontage on the Kennebec River, were purchased in 1947 by Clifton Winn, Helen Winn, and Orin Winn (the father of the party-in-interest).

         5. At the time of the purchase, there were two structures on Lot 38 – referred to as the big house and the little house (i.e., the old store). Practically, neither structure is habitable year-round.

         6. Orin has exclusive use of and pays the taxes assessed on the big house. Until her death, Elizabeth had exclusive use of the little house.

         7. In or about the 1950s, the owners of the property, in an effort to provide for the next generation, leased four sublots on Lot 38 to their children: Elizabeth, Margaret, Orin, and Douglas Winn (Orin’s brother). Margaret was the only person to build a structure on her leased sublot.

         8. The leases expire in 2044 or upon the death of the lessee. Because Elizabeth and Douglas Winn are deceased, only two leases remain on Lot 38.

         9. There are no structures on Lot 39. Lot 39 has a rugged terrain and has been used for hunting and harvesting wood.

         10. Lot 39 had been classified as tree growth for tax purposes, but was later changed to open space. As the result of the change from tree growth to open space, a tax penalty in excess of $40, 000 is due if the property is sold.

         11. Lot 39 is burdened by a well easement and a septic easement for Douglas’ nearby property. The lot is also burdened by a well easement for Margaret’s structure on Lot 38.

         12. Defendant’s expert (appraiser) witness, Jane Furbeck-Owen, assessed the value of Lot 38 between $725, 000 and $750, 000, and Lot 39 at between $325, 000 and $350, 000. Plaintiff’s expert (appraiser) witness, Kenneth Charest, assessed the value of Lot 38 at $495, 000, and Lot 39 at $100, 000, after accounting for the $40, 000 tax that would be due upon sale because the property had previously been classified as tree growth. Katherine testified she believed the value of Lot 38 to be $825, 000 and Lot 39 to be between $325, 000 and $350, 000.

         13. According to Mr. Charest, while Lot 39 had frontage on the Kennebec River, because of the steep topography of the lot to the river, when valuing the property, it is appropriate to compare the property to sales of property with a water view. At least one of the comparable sales properties used by Mr. Charest in his appraisal included some water frontage. Lot 39 has approximately 600 feet of frontage on the Kennebec River. Mr. Charest did not believe it was necessary to limit the comparison to the sales of waterfront property because the frontage was “fairly poor and tough to access.” Mr. Charest, however, did account for the water frontage to some degree when assessing the value of Lot 39.

         14. Mr. Charest determined the best use of Lot 38 was as a family compound on an effective site of approximately two acres. The effective site was less than the total acreage of the lot because of topography and wetlands issues. Mr. Charest considered the Lot 38 water frontage to be tidal because it “flats out” at low tide. The lack of access to the water from the property when the area “flats out” decreases the value of the property.

         15. Ms. Furbeck-Owen’s appraisal business primarily consists of the appraisal of waterfront properties. In assessing Lot 39, Ms. Fubeck-Owen applied an adjustment of $25, 000 to account for the change of the lot’s classification from tree growth to open space. Ms. Furbeck-Owen determined that the highest and best use for Lot 39 was for future development of an estate property that because of its size could support a primary dwelling. She also placed value on the privacy associated with 25 acres of land.

         16. In her assessment of Lot 39, Ms. Furbeck-Owen used sales of properties with water frontage. On average, the properties used by Ms. Furbeck-Owen as comparable sales for Lot 39 were closer in proximity to Georgetown than the properties used by Mr. Charest.

         17. In her assessment of the value of Lot 38, Ms. Furbeck-Owen used the four comparable sales that Mr. Charest used and two other comparable sales. Ms. Furbeck-Owen made different adjustments than Mr. Charest based on the amount and type of water frontage, the recreational utility and actual views. Although Ms. Furbeck-Owen accounted for the leases on Lot 38 in terms of the privacy interest of a potential buyer, she did not otherwise account directly for the likely length of the leases and the impact of the burden on the potential sale price of Lot 38. Ms. Fureck-Owen did not consider the Lot 38 water frontage to be tidal because a dock (pier) could be constructed to allow access to the water in low tide.

         18. Given the topography of Lot 39, the area for access to and construction of improvements on the property is very limited, and the access to the water frontage is challenging.

         19. According to Defendant’s expert (surveyor) witness, John Wood, Lot 39 could be physically divided. Mr. Wood did not provide a basis for his opinion, nor did he ...

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