Deeds

computer-searchAll of the Massachusetts registries of deeds now offer free online document search capabilities. The main portal for most registries is www.masslandrecords.com operated by the Secretary of State’s Office. Other registries have their own systems.

Here is a handy list of all registries liked to their online search portals:

Here is the link to the Massachusetts Registry of Deeds County Map to determine in which county your town is located.

How To Search Masslandrecords

1. By Name/Basic

In the basic search form, you input the property owner’s last name and first name and hit search. For common names, this will often generate too many names results as the search function is not limited to town.

2. By Name/Advanced

In the basic search form, click the Advanced button on the right side. The search will expand to the screenshot above. This is the optimal search method as you can limit the search by town and document type. I usually leave the search on “all document types.”

3.  By Book and Page

Massachusetts Registry of Deeds documents are organized by “book and page.” Before electronic records, land records were recorded in actual thick book volumes. The “book” reference refers to the volume number and the page refers to the page number. Each recorded instrument has its own unique book and page reference at the top of the document’s first page. Even with the proliferation of electronic records, the book and page reference is still in operation in Massachusetts.

4. By Property Address


A newer functionality, you can also search by street address. In my experience, however, the results are often inaccurate so I would not rely on this search method.

Search In Action

So, let’s give this a try. Find your registry where you live. Use the Registry County Map if you don’t know. In the basic search form, click advanced. Input your first and last name and click your town in the drop down menu. Press Search. Voilá, there’s a list of all recorded instruments on your title. For viewing and printing, click any of the documents. The details will appear on the right side of the search page. Click View Images and the image will appear in a new window. You can print from there.

Please note that the above is not a substitute from a full title exam by a qualified title examiner and should not be relied upon for any purchase, sale or refinance transactions. A statutory title certification covers a 50 year period and also checks bankruptcy and probate records.

Feel free to email me with any questions!

______________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a Massachusetts purchase or sale transaction.

{ 5 comments }

Massachusetts Plot Plan

Plot Plans, also called Mortgage Inspection Plans, were once part of every Massachusetts real estate purchase closing. These days, some lenders do not require them and I will tell you why in this post. However, despite the limitations of a plot plan, I think it’s a good idea for buyers to purchase a plot plan at closing. The typical cost of a plot plan is around $125.00 so it’s affordable.

While it is not nearly as accurate as a full instrument land survey, a plot plan will give the buyer a visual of the lot lines, the approximate location of the home and accessory structures, and any easements running through the land. Also, when you go to sell your property, a plot plan is helpful for prospective buyers to review as part of the marketing package.

What Is A Plot Plan?

A plot plan, also called a Mortgage Inspection Plan, confirms the following information:

  • Does the house or building, as well as accessory structures (pools, sheds, etc), conform to the local setback zoning by-laws?
  • Does the house or building, as well as accessory structures, fall within the FEMA flood hazard zone (which would require flood insurance)?
  • Are there any building encroachments?
  • Are there any recorded easements running through the property?

In addition to answering these questions, a plot plan includes helpful reference information such as the deed book and page numbers, property plan numbers, land court plan numbers (if applicable), assessor map and lot numbers and F.E.M.A. rate map numbers. This information can be very helpful to the homeowner and a potential buyer as well.

How Is A Plot Plan Prepared?

It is important to point out that a plot plan is NOT a land survey, and is not prepared using standard instrument survey instruments. A plot plan is prepared using visual inspection and measuring tapes only. A physical inspection of the dwelling’s exterior is made, with tape measurements to show the approximate location of the dwelling. The preparer will review the recorded deed and plan(s) obtained at the Registry of Deeds or town offices to determine the lot configuration. Information from the field is merged with record information to create a drawing of the property (the plot plan) and the approximate location of the dwelling on the lot. The flood zone is determined. A quality review performed by Professional Land Surveyor.

The accuracy of a plot plan is usually within two to three feet. The field work involved in preparing the Mortgage Inspection Plan does not include the setting of property line stakes. Therefore, although tape measurements are sufficient to make zoning and flood hazard determinations, the plan should not be used as a substitute for a “Building Permit Plot Plan” or to determine property lines. A plot plan cannot be used as a substitute for a full instrument land survey.

What is Not Provided by a Mortgage Plot Plan?

As stated before, a plot plan has its limitations, which is a reason cited by lenders for not requiring them, such as:

  • No representation is made as to the accuracy of the depicted property lines.
  • No attempt has been made to verify the boundary configuration or, typically, the mathematical correctness of the legal property description.
  • Property corners can not be located based on this type of plan, therefore no fences, hedge rows or other improvements can be determined or located.
  • The location of any improvements shown are approximate, and therefore any planned construction should not be based on the locations as shown.

What is a Certified Plot Plan, Boundary, Land or Instrument Survey?
An accurate instrument land survey involves the location of established monuments or survey control points, which are then mathematically tied in to the property being surveyed. This process utilizes sophisticated, state-of-the-art equipment, and precisely locates both the property lines and the improvements on the property in relation to those property lines. The cost of a full instrument survey can range from $1,000 to $5,000, depending on the property. You can use a land survey for construction, Land Court, and Registry of Deeds plans.

How Do I Get A Plot Plan?

If your lender requires a plot plan at closing — check your Good Faith Estimate or closing cost worksheet — it will order one for you and you’ll have it at closing. If your lender does not require a plot plan, speak to your closing attorney and they will gladly order one for you!

______________________________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney. Please contact him if you need assistance with a Massachusetts purchase or sale transaction.

{ 1 comment }

Local Field Of Dreams Strikes Out In Appeals Court

by Rich Vetstein on November 23, 2011

Worcester Businessman Built Regulation Sized Baseball Field In His Backyard

Harking back to the old days when sandlot ballfields were packed with neighborhood kids, David Massad II, a Worcester car dealer, didn’t plow over a cornfield in Iowa to build a baseball field in his yard; he just leveled the trees behind his 7,382-square-foot home in Shrewsbury to build a regulation sized baseball field for his kids and friends to play on. This being Massachusetts, his neighbors cried foul. The case was just decided by the Appeals Court which, not surprisingly, ruled in favor of the neighbors, holding that the homeowner’s association rules and regulations prohibits the use.

Field of Dreams

In 2004, Massad decided to build a regulation sized baseball field, complete with clay infield, fencing, sprinklers and bleachers, behind his upscale Grey Ledge development home in Shrewsbury. After neighbors cried foul, Mr. Massad and his wife just lost a legal battle with neighbors who say they didn’t buy season tickets to ball games when they purchased their homes. Massad, meanwhile, says he was just trying to provide a place for kids to play ball in a town that sorely lacks ball fields.

According to the Worcester Telegram, “It sounded pretty simple,” said Massad, 52, whose business is only coincidentally named Diamond Chevrolet. “The kids needed a place to play, so I built a field. It’s in the middle of nowhere, and I’ve never charged anyone to use it.” The Massads even obtained a special permit from the zoning board to allow for the field.

Massad Field, Shrewsbury. Credit: Worcester Telegram

As reported by the Telegram, the field may be isolated, set well in the rear of Massad’s 14-acre property, but the issue is the cars that go up and down the development to get there. In 2009, Massad built a private driveway and parking lot on his property, but players and fans still must use the private common driveway that lines the eight-home development and ends at Massad’s handsome brick Colonial at the top of the cul-de-sac.

HOA Covenants & Restrictions Control

The Grey Ledge Homeowners Association had recorded standard Covenants and Restrictions providing that:

“The Lots shall be used for single family residential purposes only.” It further provides that “[t]he acceptance of a Deed to a Lot by any Owner shall be deemed an acceptance of the provisions of this Master Declaration, the Trust and the By-Laws and rules and regulations of the Grey Ledge Association, as the same shall be amended from time to time, and an agreement by such Owner to be bound by them in all respects;” and that “[t]he Lots … shall have the mutual burden and benefit of the following restrictions on the use and occupation thereof, which restrictions, except as otherwise provided or allowed by law, shall run with the land.”

The Appeals Could held that, despite the Massads obtaining local zoning approval for the baseball field, it was not consistent with the character and planned use of the luxury development as a single family enclave. “As matter of law, the hosting of organized league baseball games (whether formal games or mere practices) for such leagues as American Legion Baseball and Worcester Heat violates the master declaration’s restriction to use for ‘single family residential purposes only,'” Justice Joseph Grasso held.

On legal grounds, the ruling is not surprising and correct, in my opinion. It’s unfortunate that Mr. Massad and his neighbors couldn’t have worked out a “collective bargaining revenue sharing” plan so the kids could just play ball.

___________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney and devoted Red Sox fan. Please contact him if you need legal assistance purchasing residential or commercial real estate.

{ 0 comments }

No Easy Fix For Defective Foreclosure Titles After U.S. Bank v. Ibanez Ruling

The Massachusetts Supreme Judicial Court issued its opinion today in the much anticipated Bevilacqua v. Rodriguez case considering property owners’ rights when they are saddled with defective titles stemming from improper foreclosures in the aftermath of the landmark U.S. Bank v. Ibanez ruling last January. (Text of case is embedded below). Where Ibanez consider the validity of foreclosures plagued by late-recorded or missing mortgage assignments, Bevilacqua is the next step, considering what happens when lenders sell defective foreclosure titles to third party purchasers. Previously, I discussed the oral argument in the case here and detailed background of the case here.

The final ruling is mix of bad and good news, with the bad outweighing the good as fixing defective Massachusetts foreclosure titles just got a lot harder and more expensive. But, contrary to some sensationalist headlines, the sky is not falling down as the majority of foreclosures performed in the last several years were legal and conveyed good title. Bevilacqua affects those minority percentage of foreclosures where mortgage assignments were not recorded in a timely fashion under the Ibanez case and were otherwise conducted unlawfully. Importantly, Bevilacqua does not address the robo-signing controversy, which may or may  not be considered by the high court in another case.

The Bad News

First the bad news. The Court held that owners cannot bring a court action to clear their titles under the “try title” procedure in the Massachusetts Land Court. This is the headline that the major news outlets have been running with, but it was not a surprise to anyone who has been following the case. Contrary to the Daily Kos, the court did not take the property away from Bevilacqua. He never held good title it in the first place–and you can blame the banksters for that. If you don’t own a piece of property (say the Brooklyn Bridge), you cannot come into court and ask a judge to proclaim you the owner of that property, even if the true owner doesn’t show up to defend himself. It’s Property Law 101.

The Good News

Next the good news. The court left open whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles. Unfortunately, the SJC did not provide the real estate community with any further guidance as to how best to resolve these complicated title defects.

Background: Developer Buys Defective Foreclosure Title

Frank Bevilacqua purchased property in Haverhill out of foreclosure from U.S. Bank. Apparently, Bevilacqua invested several hundred thousand dollars into the property, converting it into condominiums. The prior foreclosure, however, was bungled by U.S. Bank and rendered void under the Ibanez case. Mr. Bevilacqua (or presumably his title insurance attorney) brought an action to “try title” in the Land Court to clear up his title, arguing that he is the rightful owner of the property, despite the faulty foreclosure, inasmuch as the prior owner, Rodriguez, was nowhere to be found.

Land Court Judge Keith Long (ironically the same judge who originally decided the Ibanez case) closed the door on Mr. Bevilacqua, dismissing his case, but with compassion for his plight.

“I have great sympathy for Mr. Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and presumably purchased from the foreclosing entity in reliance on receiving good title — but if that was the case his proper grievance and proper remedy is against that wrongfully foreclosing entity on which he relied,” Long wrote.

Given the case’s importance, the SJC took the unusual step of hearing it on direct review.

No Standing To “Try Title” Action In Land Court

The SJC agreed with Judge Long that Bevilacqua did not own the property, and therefore, lacked any standing to pursue a “try title” action in the Land Court. The faulty foreclosure was void, thereby voiding the foreclosure deed to Bevilacqua. The Court endorsed Judge Long’s “Brooklyn Bridge” analogy, which posits that if someone records a deed to the Brooklyn Bridge, then brings a lawsuit to uphold such ownership and the “owner” of the bridge doesn’t appear, title to the bridge is not conveyed magically. The claimant in a try title or quiet title case, the court ruled, must have some plausible ownership interest in the property, and Bevilacqua lacked any at this point in time.

The court also held, for many of the same reasons, that Bevilacqua lacked standing as a “bona fide good faith purchaser for value.” The record title left no question that U.S. Bank had conducted an invalid foreclosure sale, the court reasoned.

Door Left Open? Re-Foreclosure In Owner’s Name?

A remedy left open, however, was whether owners could attempt to put their chains of title back together and conduct new foreclosure sales in their name to clear their titles. The legal reasoning behind this remedy is rather complex, but essentially it says that Bevilacqua would be granted the right to foreclosure by virtue of holding an “equitable assignment” of the mortgage foreclosed upon by U.S. Bank. There are some logistical issues with the current owner conducting a new foreclosure sale and it’s expensive, but it could work.

That is if the SJC rules in the upcoming Eaton v. FNMA case that foreclosing parties do not need to hold both the promissory note and the mortgage when they foreclose. An adverse ruling in the Eaton case could throw a monkey wrench into the re-foreclosure remedy–it would also be an even bigger bombshell ruling than Ibanez, as it would throw into question the foreclosure of every securitized mortgage in Massachusetts.

In Bevilacqua’s case, he did not conduct the new foreclosure sale, so it was premature for the court to rule on that issue. Look for Bevilacqua to conduct the new foreclosure and come back to court again. The SJC left that option open.

Other Remedies & What’s Next?

The other remedy to fix an Ibanez defect, which is always available, is to track down the old owner and obtain a quitclaim deed from him. This eliminates the need for a second foreclosure sale and is often the “cleanest” way to resolve Ibanez titles.

Another option is waiting out the 3 year entry period. Foreclosure can be completed by sale or by entry which is the act of the foreclosure attorney or lender representative physically entering onto the property. Foreclosures by entry are deemed valid after 3 years have expired from the certificate of entry which should be filed with the foreclosure. It’s best to check with a real estate attorney to see if this option is available.

The last resort is to demand that the foreclosing lender re-do its foreclosure sale. The problem is that a new foreclosure could open the door for a competing bid to the property and other logistical issues, not to mention recalcitrant foreclosing lenders and their foreclosure mill attorneys.

Title insurance companies who have insured Ibanez afflicted titles have been steadily resolving these titles since the original Ibanez decision in 2009. I’m not sure how many defective foreclosure titles remain out there right now. There certainly could be a fair amount lurking in titles unknown to those purchasers who bought REO properties from lenders such as U.S. Bank, Deutsche Bank, etc. If you bought such a property, I recommend you have an attorney check the back title and find your owner’s title insurance policy. Those without title insurance, of course, have and will continue to bear the brunt of this mess.

More Coverage:

_____________________________________

Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous foreclosure title defect matters & cases in Land Court and Superior Court. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.

Bevilacqua v. Rodriguez; Massachusetts Supreme Judicial Court October 18, 2011

{ 17 comments }

Benjamin Franklin once said famously that “the only certainties in life are death and taxes.” That’s certainly true in real estate practice. Today, I will go over how real estate passes when the owner dies  –  with a will or without a will – and how the probate process affects the real estate process.

Tenancy by the Entirety

Married couples in Massachusetts are recommended to hold real estate as “tenants by the entirety.” It’s a special form of joint tenancy for married couples. If one spouse dies, the surviving spouse succeeds to full ownership of the property, by-passing probate. By law, tenants by the entirety share equally in the control, management and rights to receive income from the property. Property cannot be “partitioned” or split in a tenancy by the entirety. A tenancy by the entirety also provides some creditor protection in case one spouse gets into financial distress as creditors cannot lien the non-debtor spouse’s interest in the property.

Death Without A Will—Intestacy Laws

Clients were often surprised to learn that when one spouse dies without a will, the law of intestacy in Massachusetts leaves a portion of the estate to the surviving spouse and a portion to the decedent’s children. This is changing as of January 2012 with Massachusetts’ adoption of the Uniform Probate Code. Under the “UPC,” if a spouse with children of the marriage dies, the surviving spouse gets the entire estate, including the marital home. If there’s no surviving “descendant,” or child, of the deceased, but a surviving parent of the deceased, the surviving spouse gets the first $200,000 of the estate, plus 75% of the balance of the estate. The laws of inheritance remain rather complicated to explain fully here. A good guide to the new Uniform Probate Code can be found here.

Death With A Will — Testate

The basic rule is that if the owner dies with a will, which includes a power to sell real estate, the executor or administrator of the estate is generally authorized to convey title without further authority from the probate court. If the will does not provide for a power of sale, the executor will have to obtain a license to sell from the probate court.  If a final account has been filed and allowed, the heirs (in the case of an intestacy) or devisees (in the case of a will) are able to convey title.

Missing Probates

If the title examination turns up an interest that is not accounted for by a probate, and the death of the interested party occurred less than 25 years ago, a probate may need to be opened to convey the property. Deaths over 25 years old where a special affidavit has been filed, may pass without probate.

Federal & Massachusetts Estate Tax Liens

A federal and state estate tax lien arises immediately upon death and attaches at the time of death to the gross estate of the decedent. The gross estate includes all property, wherever situated, that the decedent owned or in which the decedent had an interest at the time of death. The threshold for federal gross estates for 2011 and 2012 is $5 Million for an individual and $10 Million for a couple. The Massachusetts estate threshold remains at $1 Million. For estates below those amounts, the executor must merely file a simple Affidavit of No Estate Tax Due. Estates over the thresholds must file the more complicated release of lien from the Department of Revenue which requires the filing of a full estate tax return.

Bought A House? Get A Will!

Julie Ladimer, Esq. Danielle Van Ess

After every closing, I always have a chat with my new buyers about setting up a will and other estate planning vehicles. It’s very important on all fronts. For those in the MetroWest area, I recommend Julie McQuade Ladimer, Esq. of Framingham (email: jml@michaelgatlinlaw.com; Tel: (508) 788-0028. For those on the South Shore, I recommend Danielle Van Ess, Esq. in Hingham (email: info@dgvelaw.com; Tel: 781.740.0848. Both are very good and well regarded estate planning attorneys.

____________________________________

Richard D. Vetstein, Esq. is an experienced real estate attorney who’s handled over 1,000 closings. Please contact him if you need legal assistance purchasing residential or commercial real estate.

{ 0 comments }

Prospective real estate buyers tend to think of the “mortgage” as the contract they are signing with the bank. This is misleading. The promissory note is the actual contract to loan and borrow money between lender and borrower. The mortgage is the lender’s instrument, or more accurately, its security interest, to enforce that loan contract. This is an important distinction because, if for example, a couple purchases property or refinances, and the loan is taken out solely in the wife’s name, then lining up the correct parties on the signing documents becomes important. But before discussing how to properly configure the closing documents, it is important to understand the definitions.

The Deed

The deed is the legal instrument conveying an ownership interest of the property to a grantee (buyer). The deed is typically drafted by the seller’s attorney. It includes the grantor (seller), the grantee (buyer), the manner in which the buyer is taking title (the tenancy), the consideration (the amount of the purchase price), a legal description of the property, and a cite to the recording information of the prior deed. Click here for an example of a Massachusetts quitclaim deed.

The Promissory Note

The promissory note is the lending contract between the borrower and the lender. The note includes the name(s) of the borrower and the property address. It also includes the amount of the loan, the term (number of years), and the interest rate. The lender generates the note and uses a FannieMae/ Freddie Mac standard template which reflects that it is a uniform instrument. A typical note includes a provision of whether the loan is fixed or adjustable, contains a “no pre-payment fee” clause, and includes language that sets the deadline for the 15th of the month for the lender to receive payment (and sets out a late fee penalty). Click here for a standard form Fannie Mae promissory note.

The Mortgage

The mortgage is the lender’s security interest in the property. In Massachusetts, a “title state,” the borrower is conveying his ownership interest in the home to the lender, such interest would be exercised only in the event of default. Thus, the lender has a lien on the property, which gives it authority to foreclose in the event of continued non-payment. The mortgage is also a uniform instrument whose template is typically generated by the lender and designed and approved by the above-referenced government housing agencies. The only unique terms in the mortgage are the names of the borrowers, the property address and the exhibit which provides a legal description of the property. The rest of the mortgage is standard, providing that the borrower agrees to keep the property insured and maintained, make it her primary residence (unless it’s an investment loan), and not to contaminate the property with hazardous waste, among other requirements. Click here for a sample Massachusetts Fannie Mae mortgage.

Thus, to return to our example, if husband and wife purchase a home and only wife is to be on the loan, then the grantees on the deed are husband and wife, reflecting their ownership interest in the property. The note will contain only the wife (since she alone is taking out the loan). The mortgage however must contain both owners of the property since this instrument tracks the deed. Thus, the husband and wife are both on the mortgage.

After the closing attorney explains the deed, mortgage and promissory note, there are a stack of other loan documents and disclosure to review. We’ve written posts about all the important ones:

Good luck with your closing!

__________________________________________

Attorney Marc E. Canner brings years of experience working closely with Buyers, Sellers, mortgage brokers, loan officers and realtors to provide expert counsel on closing residential real estate transactions. Marc is the founding partner of the Law Offices of Marc E. Canner and a founder of TitleHub Closing Services LLC.

{ 5 comments }

The Anatomy of a Massachusetts Quitclaim Deed

by Rich Vetstein on June 6, 2011

images-10The deed is the cornerstone of property ownership in Massachusetts and throughout the country. In Massachusetts, there are three types of deeds: a quitclaim deed, a warranty deed, and a release deed. By far the most common deed used in Massachusetts is the quitclaim deed (scroll down for example below), and I’ll focus on that in this post.

Quitclaim Deed Covenants

The quitclaim deed is by far the most common and standard form of deed for Massachusetts residential real estate conveyances. Quitclaim deeds in Massachusetts are similar to “special warranty deeds” in other states. A quitclaim deed carries with it statutory quitclaim covenants by the seller as provided in Mass. Gen. Laws ch. 183, § 17: “The grantor, for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that the granted premises are free from all encumbrances made by the grantor, and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other”.

Taking Title

How would you like to take title? This is an important question that buyers must consider. For single individuals, there really is no choice. You take title individually. For married couples, there are three choices: (1) tenancy by the entirety, (2) joint tenants with rights of survivorship, or (3) tenants in common.

Tenancy by the Entirety

This is often the best choice for married couples, and only husband and wife can benefit from this type of ownership. In a tenancy by the entirety form of ownership, if one spouse dies, the surviving spouse succeeds to full ownership of the property, by-passing probate. By law, tenants by the entirety share equally in the control, management and rights to receive income from the property. Property cannot be “partitioned” or split in a tenancy by the entirety. A tenancy by the entirety also provides some creditor protection in case one spouse gets into financial distress as creditors cannot lien the non-debtor spouse’s interest in the property. In the example, below you can see how the Obamas take title as tenants by the entirety.

Joint Tenants

Like tenants by the entirety, a joint tenancy with rights of survivorship provide that the surviving spouse or joint tenant automatically succeeds to ownership, by-passing probate. You don’t have to be married to create a joint tenancy. These are common when siblings share property or as between elderly parents and their children. Unlike a tenancy by the entirety, joint tenants can “partition” or split ownership of the property through a court process.

Tenants in Common

The least used type of ownership, in a tenancy in common, there is no right of survivorship. So when a tenant in common passes, their interest goes to their surviving heirs and the property must be probated for further sale or mortgage. Most folks want to avoid probate like the plague. Like a joint tenancy, a tenancy in common can be split or “partitioned” by court order.

Purchase Price

All deeds must recite the consideration or purchase price paid. So if you are looking to hide the amount you paid for your home, forget about it. The purchase price is also used to calculate deed/transfer taxes due the seller which is $4.56 per $1,000. For more info about deed/transfer taxes read I Have To Pay Tax On Selling My Home?!

Legal Description

Every deed must adequately describe the property conveyed. In the diagram below, you can see the formal legal description called a “metes and bounds” description. This will often reference a plan of the land recorded with the registry of deeds or reference markers on the property such as stone walls, surveyor points, etc. The deed may also recite easements, restrictions, covenants or takings on the property. It will also recite the last prior deed to track ownership.

Drafting, Fees, Notaries, Etc.

In Massachusetts, local practice is for the seller’s attorney to draft the deed. The registry of deeds charges a fee of $125 to record the deed which the buyer pays. All deeds must be notarized by a notary public who must verify the sellers’ identification through a state issued driver’s license or acceptable form of identification. The notary must also confirm that the sellers are signing the deed voluntarily by their own free act and will. Once the closing is finished, the closing attorney will courier the deed to the registry of deeds, perform a final title run-down, and record the deed, mortgage and other documents. The sale is then official!

Massachusetts Deed Example

{ 5 comments }

Click here to read about my most recent adverse possession trial victory.

Massachusetts Adverse Possession Law

Robert Frost ‘s famous poem The Mending Wall says “good fences make good neighbors.” When that fence encroaches over a neighbor’s property line, however, that good neighbor can turn nasty very quickly.

When boundary or encroachments disputes arise, a little known legal doctrine often comes into play:  adverse possession. Adverse possession is a common law concept in Massachusetts under which homeowners may lose title to their land by sleeping on their property rights for 20 consecutive years against a neighbor who has taken actions contrary to their property interests. Yes, a neighbor can effectively take over ownership of your land if you sleep on your rights. Massachusetts adverse possession law reflects a public policy aimed at inducing landowners to actively protect their land.

The classic example of adverse possession is a neighbor who puts up a fence or paves a driveway several feet over their neighbor’s property line, without permission, and this “adverse possession” continues without objection for 20 consecutive years.  Despite the fact that the neighbor’s fence or driveway encroaches the property line, under the adverse possession doctrine, the property owner may lose title to the disputed strip of land by not doing, saying or even knowing anything about it.

Requirements For Adverse Possession

A landowner can obtain adverse possession only by filing a lawsuit and establishing several elements of the claim.  (My property law professor used a handy acronym called OCEAN to help students remember them). The use of another’s land must be Open, Continuous (for 20 years), Exclusive, Adverse and Notorious. Each element has its own specific requirements, and all adverse possession cases are very fact-specific. The law does not favor adverse possession, so the burden of proof on the claimant is relatively high.

Adverse possession can also occur through multiple prior owners during the 20 year period under a theory called “tacking.” Adverse possession can also be in the form of an easement, or merely a right to use property, called a “prescriptive easement.” This could apply to the gamut of utility, pathway, or access easements.

Surveys and Stakes

Surveys typically form the genesis, and play an important role in, adverse possession cases. The parties must know where the true lot lines are on the property. Sometimes, there are disputes as to the survey in cases of old, poorly laid out lots. Remember that even if you believe the neighbor is wrong about the lot line, it is against the law in Massachusetts to remove survey stakes. (Mass. General Laws Chapter 266, Section 94).   Also under Massachusetts law, a surveyor is allowed to enter upon your land, with reasonable notice, for purposes of completing a survey.

Tips To Prevent Adverse Possession

The key to preventing adverse possession is to be proactive regarding your boundary lines and property rights. If you suspect an encroachment, obtain a full instrument survey, not a mortgage plot plan which can be inaccurate. If an encroachment is found, consult an attorney for further advice.

Generally, the most effective methods to prevent adverse possession are to:

  • Posting “No trespassing” signs (can be helpful, but is not fail-safe)
  • Physically demarcate lot lines with a fence, gate or the like (survey stakes alone may not be enough)
  • Document giving permission to an encroaching neighbor by written document or agreement
  • For prescriptive easements, record a statutory Notice to Prevent Acquisition of Easement. Note: this notice will not prevent a claim of adverse possession to the entire land.
  • Bring a lawsuit to “quiet title”
  • Submit your land to the Land Court registration system

The more land you own (especially raw woodlands) the more proactive you need to be.

Lastly, when buying new property, consider getting an enhanced title insurance policy which has coverage for encroachments and boundary issues, at a small premium over standard rates.

Adverse Possession Lawsuits

Given the high cost and low supply of land in Massachusetts, adverse possession disputes often wind up in litigation. Adverse possession litigation can be expensive because these cases are very fact-specific and require a fair amount of witnesses, factual investigation, title research, and even expert testimony. Adverse possession cases are generally difficult to win, but they can be successful with the right facts and good preparation.

The Massachusetts Land Court hears adverse possession cases along with the Superior Court. Depending on the facts of the case, the plaintiff can do a bit of “forum shopping” between the two courts.

Click here to read about my most recent adverse possession trial victory.
Click Play to listen to my radio broadcast on adverse possession
_______________________________________________________

Richard D. Vetstein, Esq. is an experienced Massachusetts adverse possession attorney who’s handled numerous adverse possession cases and trials in Land Court and Superior Court. Please contact me at rvetstein@vetsteinlawgroup.com or 508-620-5352 if you are dealing with a Massachusetts adverse possession dispute.

{ 15 comments }