Description: New Brunswick, Massachusetts real property lawyer represented the Defendant seeking to redeem property.


Joseph and Judith Driscoll, to redeem three parcels of land, denominated Parcels C, D, and E in the Middlesex Registry of Deeds, Plan Number 1348 of 1951, were forever foreclosed and barred.

The Driscolls' house is located on Parcels C and E. The Driscolls argue that the city of Marlborough's taking and retention of the entirety of all three parcels, rather than compensating them for the value above that amount should it choose to use the property for a public purpose, or selling the property and retaining only that amount and returning the overage to those from whom it was taken, violates the takings clause of the Fifth Amendment to the United States Constitution.

During the pendency of this case, the United States Supreme Court issued its ruling in Tyler v. Hennepin County, 598 U.S. 631 (2023). Tyler held that under the just compensation clause of the Fifth Amendment, when property is taken by a governmental entity to settle a tax debt, if it is sold, the amount above the tax debt must be returned to the taxpayer, or if it is retained to be used for a public purpose, the taxpayer must be compensated for the value above the tax debt. I_d. at 639. Prior to that decision, this was the rule in thirty-six States and the District of Columbia. I_d. at 642. As a matter of the constitutional right of the taxpayer, it is now the rule throughout the United States, including here in the Commonwealth.


City of Marlborough v. Driscoll, 22-P-1084 (Mass. App. Nov 18, 2024)

Outcome: The court concluded that at least Joseph had standing to contest the taking with respect to Parcels C and D, and that the order foreclosing his right of redemption must be vacated pursuant to Tyler, 598 U.S. at 639. The Court further concluded that determining whether either Judith or Joseph has standing to contest the tax taking of Parcel E turns on factual questions that have not yet been resolved, and that the judgment with respect to that parcel, too, must be vacated. The case is remanded for further proceedings as described below.

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Defendant's Experts:

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