Working with representatives of the Real Estate Bar Association, the Boston Bar Assocation, the Registers of Deeds Association, the Title Insurance Industry, The Abstract Club and the Massachusetts Bar Association, the Land Court has issued new and revised guidelines dated as of February 27, 2009.

Twenty-two existing guidelines have been revised and ten new guidelines have been issued.

New guidelines include the following:

Guideline 55-Approval by the Chief Title Examiner. This guideline sets forth specific instruments which will require the prior approval of the Land Court’s Chief Title Examiner or an Order of Court, before the document will be accepted for filing by Land Registration Districts.

It is suggested that together with the original papers to be approved, the Attorney should submit an attested copy of the outstanding certificate or a copy of the last prepared certificate and an attested copy of the deed into the current record owner. In all instances, any applicable appeal period should have passed. Instruments which require approval include fiduciary deeds, other probate decrees, bankruptcy instruments, motions to avoid judicial lien, instruments from a pension fund as mortgagee, exception deeds as permitted pursuant to guideline 18, partition by sale involving registered land and certain instruments concerning successor trustees or removal of trustees.

Guideline 56-Bank Mergers. M.G.L. c. 183, § 55 provides that in the case of a mortgage discharge, assignment or partial release the inclusion in the document of a recitation as to any merger, consolidation, amendment, conversion, or acquisition of assets causing a change in name or identity of the entity executing the instrument without further documentation is acceptable. This guideline states that such a recitation does not and cannot cure a situation involving an unregistered assignment.

The use of the phrase “formerly known as” shall be interpreted as a name change unless there is reason to believe it is being used for another purpose. If there is no recitation in the document, or the document is not covered by the statute, an alternative method of proving the succession of bank interests may be utilized. In this case, a certificate prepared by a Massachusetts attorney may be submitted to and approved by the Chief Title Examiner, which certificate shall identify the registered instruments and/or certificates of title to be affected by the new documents, the names and identities of the lender entities involved, the complete line of merger, acquisition and changes of name to show an unbroken line connecting the record title holder to the party in question.

Such information may be obtained on the Internet including the FDIC site, the site for the National Credit Union Assocation, and the site of the Office of the Comptroller of the Currency.

Guideline 57-Condominiums: Approval of Condominium Documents. This extensive guideline attempts to clarify when Land Court approval is required. Prior to filing a Master Deed together with related instruments and plans in a Registry District, Land Court approval is required. In addition, Amendments to Master Deeds and related instruments and plans also require prior approval by the Land Court. The Condominium Trust or by-laws, nor amendments to said condominium trusts or by-laws, do not require a Justice’s signature to be registered.

The Guideline describes the documents that must be submitted for approval and the extent of review. The Court’s approval does not mean that the Court considers any provisions other than those reviewed to be lawful or enforceable. The provisions that are not reviewed include those to do with rights and procedures regarding phasing or other retained developer rights and interests.

The Guideline also includes a list of those documents which need to be submitted to the court for review which include the Master Deed, Condominium Trust or By-Laws, a copy of the owner/declarant’s certificate of title, the Site Plan, and Floor Plan.

The Guideline further includes a listing of Master Deed requirements by-law requirements, and floor plan requirements.

Finally, the guideline establishes a procedure to have the land withdrawn from the provisions of M.G.L.  c. 185. This issue is further covered in guideline 63 and 64.

Guideline 58-Conveyances by Cities and Towns. The grant of easement or a deed from a city or town should be accompanied by a municipal clerk’s certificate which recites and/or gives evidence of the authority by which the grant or deed is being made.

M.G.L. c. 44, § 63A provides that whenever a city or town sells any real estate, the board or officer executing the deed shall, as a condition precedent to the power to deliver the deed, receive from the grantee a payment in lieu of real estate taxes. The statute also provides that a recitation in the deed of full compliance with the provisions of the statute shall be conclusive evidence of such fact. Therefore every deed from a city of town should contain such a recitation. Any deed from a city or town not containing such a recitation must be approved by the Court or the Chief Title Examiner or his or her designee.

Guideline 59-Indefinite References. This guideline provides that it is permissible to refer in a mortgage, collateral assignment of leases and rents or similarly registered instrument to a promissory note, security agreement, construction agreement, construction loan agreement, option agreement, purchase and sale agreement, or similar agreement to which the mortgage or other registered document is given as security even though the agreement referred is not registered with the mortgage.

 

Guideline 60-Mortgages Affecting Appurtenant Easements. This guideline provides that when a Certificate of Title includes on its face an appurtenant easement for the benefit of the registered land, a mortgage, registered or recorded against the title of the servient estate should not be noted on the Certificate of Title of the dominant estate. Further, when the title to the registered land described in a Certificate of Title is subject to an easement for the benefit of recorded land, a mortgage recorded against the title of the dominant estate should not be noted on the Certificate of Title of the servient estate.

 

Guideline 61-Mortgages: Discharge Notations for Expired Mortgages. This guideline, which provided pursuant to M.G.L. c. 260, § 33 provides for a method for discharging mortgages which have expired 35 years after the date of registration of the mortgage or 5 years after the stated term or maturity date.

 

The Land Court has prepared a specific form to be prepared by the attorney requesting discharge notation.

 

Guideline 62-Trusts: Expired. This guideline provides an outline for how to proceed when the current owners trust has expired whether by expiration of a term of years or following the death of one or more persons.

As noted in the guideline, there are too many different factual patterns to describe them all in the guideline; however, if less than one year is elapsed since the expiration of the trust the facts should be presented to the Chief Title Examiner, accompanied by a certificate in accordance with the provisions of M.G.L. c. 184, § 35. If the Chief Title Examiner cannot approval the papers as presented, a Supplemental Petition will then be required.

Guideline 63-Voluntary Withdrawal. This Guideline describes the voluntary withdrawal procedure by private owners who qualify under the governing statute M.G.L. c. 185, § 52 and public entities. For private owners, the premises may be withdrawn if the registered land constitutes less than fifty per cent of the total area of a single parcel or of two or more contiguous parcels in common ownership, or the registered land consists of less than ten per cent of the land area shown on the decree plan to which the original certificate of title pertains, the rest of said land area having been conveyed.

The premises may also be withdrawn for such other good cause, which must be stated with specificity in the complaint.

Premises owned by a public entity may be withdrawn as a matter of course. Public entity must file a complaint. This complaint is to be drafted by the plaintiff and is not the same complaint form as is used in the case of privately owned land. Filing fee is $50.00 and a title examination by a Land Court Examiner is required. 

Guideline 64-Withdrawal From Registration. This Guideline provides the procedure to withdraw land on which a condominium is declared which land consists of both registered and unregistered land. In a withdrawal procedure, the condominium documents are not reviewed and allowed by the Land Court. The Master Deed, Condominium Trust, Site Plans, and Floor Plans are recorded on the unregistered side only. The petition and notice described in the Guideline or filed in registered as soon as practicable after the recording of the condominium documents.

The Master Deed should specifically describe the registered land as parcel one followed by the recorded land parcel as parcel two. In addition a print of the condominium site plan should show the location of the registered land delineated in red.

Changes to existing Land Court Guidelines include the following:

Guideline 1-Acknowledgments: Requirements. Registration districts of the Land Court should not refuse to register documents either (a) because they bear official notarial seals and stamps which are not in the form, or do not contain the content, required by said Executive Order, or (b) because they do not contain the form of certificate of acknowledgement or jurat set forth in said Executive Order, provided, however, that those documents would have been acceptable for registration before the promulgation of Executive Order No. 455.

Guideline 10-Foreclosure of Lien for Common Expenses. The revised Guideline includes a caveat that if a subsequent 6 (d) Certificate indicates that there are no unpaid assessments outstanding, a complaint which was previously registered should be dropped upon conveyance of the unit, or a notation may be registered in accordance with Guideline 21, Expired and Obsolete Encumbrances.

Guideline 18-Descriptions in Deeds and Certificates of Title; Exception Deeds; Conveyances of Portions of Land. The revised Guideline now permits, under item 5, that the Court or Chief Title Examiner may, in their discretion, issue an order or grant an approval permitting the filing of deeds of remained parcels upon the showing by the owner of remainder parcel that it would be a substantial burden on the owner to comply with the requirement of a new plan of the remainder parcel. Examples of this would include, transfers or conveyances to family members or related entities.

Guideline 20–Executions. Revised Guideline includes a notation that “if it is clear to the District, or upon the request of any interested party, it may be parked discharged or expired. Upon a subsequent conveyance and the issuance of a new certificate, it will be dropped. Any doubtful questions will be referred to the Chief Title Examiner”.

Guideline 25-Homestead. In addition to revising the statutory amount of the homestead, to $500,000.00 under Sections 1 and 1A, this Guideline specifically notes that while a declaration of homestead may be accepted for registration, that acceptance is not an adjudication on the part of the Court as to the validity or effectiveness of the filing. A declaration of homestead accepted for filing will be noted as a “Purported Homestead”. The Court’s acceptance of a declaration of homestead will not constitute the Court’s determination of the validity or effect of the filing;

a.)   Only one party who holds title as tenant by the entirety may file a declaration of homestead under Section 1 of the statute for the benefit of his or her family;

b.)   All parties who hold title as tenants in common may file declarations of homestead;

c.)   No party who holds title as trustee as to any interest, may file a declaration of homestead as to the interest held as trustee;

d.)   All parties who hold title as joint tenants may file declarations of homestead; and

e.)   Life tenants may file declarations of homestead

The Court will not prohibit multiple filings of homestead declarations, with the understanding that multiple filings by parties who are related may not be valid or effective, and that the acceptance of said filings by the Court is not a judgment on the validity of said filings or the impact of the filing of subsequent declarations on the validity of the initial filing.

Guideline 27-Leases and Notices of Lease. This Guideline has been revised by adding a provision regarding steps that need to be taken in order to file an amendment of a Notice of Lease for registration.

Guideline 34–Lis Pendens. This Guideline adds as a final note that once dissolved, the lis pendens will not be carried forward to subsequent certificates.

Guideline 42-Mortgage Electronic Registration Systems. This Guideline notes that when MERS is the holder of the mortgage it should be listed as such on the encumbrance sheet without any reference to the institution for which MERS is holding the mortgage, whether or not the original mortgage or subsequently filed instrument affecting the mortgage makes reference to the party for whose benefit MERS is holding the mortgage.

Guideline 50-Tenancies by the Entirety. This Guideline has been revised in part by the addition of a section entitled “Establishing Tenancy by the Entirety.” This section incorporates the “Goodridge” decision by allowing a tenancy to be created without regard as to whether the two individuals are of the same sex or of the opposite sex.

Guideline 51-Trust: Conveyances to Trustees. This Guideline has been revised by referencing a certificate in conformance with provisions of M.G.L. c. 184, § 35 and further by adding the highlighted language to (a), that if the trust instrument recorded or filed for registration in another registry district in the commonwealth an attested copy of the trust instruments may be presented as an alternative to the original trust instrument, together with the certificate by an attorney, or given under oath by the trustee, certifying that the instrument or certificate of which the attested copy is provided is current, enforced, and not the subject recorded amendment.

Guideline 52-Trust: Conveyances by Trustees, incorporates Trustee’s Certificates pursuant to M.G.L. c. 184, § 35. In the case of attested copy of the trust declaration recorded in the Registry of Deeds or filed in a different registry district, an attorney’s certificate similar to the one noted above is also required.

Guideline 53-Trusts: Trustee’s Deed for Nominal Consideration. This Guideline has been revised by incorporating Trustee’s Certificates under M.G.L. c. 184, § 35. The second paragraph of the original guideline 53 has been stricken and reference is made to the requirements of other guidelines relating generally to instruments executed by trustees.

Notably missing from the new Guidelines is the Guideline concerning Powers of Attorney previously issued on November 18, 2008. This Guideline has provided that in conjunction with a foreclosure an attorney in fact may appoint another person or entity to make entry on its behalf whether or not the original power of attorney contains a substitution clause or the express right to execute additional powers of attorney. This Guideline is temporarily on hold. And is being further reviewed by the Land Court and the Guidelines Committee.