Lowell Deeds

The latest on real estate recordings and new technology from the Middlesex North Registry of Deeds in Lowell

February 17, 2009

More on National Lumber

by @ 4:20 pm. Filed under Real Estate

My assertion in a recent post that the Bar had shown little concern about the holding of the National Lumber case elicited a helpful phone call today. (Feedback is good – it lets us know you’re reading this stuff). It turns out that REBA (Real Estate Bar of Association of Massachusetts) has also filed a proposed amendment (no bill number yet) that addresses the “order of recording” question raised by National Lumber. Here’s the amendment:

Chapter 36 of the General Laws is hereby amended by striking out section 14 and
inserting in place thereof the following section:

Section 14. Each register shall keep a record, in book or electronic form, into which the
register shall enter recording information for all instruments accepted for record, in the
order in which they are received. Prior to accepting an instrument for record, the register
shall approve the instrument by determining that it meets minimum statutory recording
requirements. Rejected instruments shall be promptly returned. Upon acceptance of an
instrument, the following information shall be entered into the record: the day, hour and
minute when the register assigns an instrument number, and/or book and page number as
the case may be; the instrument number and/or book and page number so assigned; the
names of the grantors and grantees in the instrument; the city or town in which the land
lies; the name of the person to whom the original instrument will be returned after being
recorded, and the fees received therefor.

No instrument shall be considered to have been recorded, until the register approves the
instrument for recording and assigns to the instrument an instrument number, and/or book
and page number as the case may be. In order to provide for the orderly recording of
instruments that are delivered or otherwise transmitted to a registry district, including by
mail or electronic means, the secretary of the commonwealth may, by rule, regulation or
guideline, establish a uniform practice for determining the order of receipt by the register.

The record maintained by the register shall be open to public inspection during registry
business hours. Any change or correction to said record shall be documented in such a
manner that the fact that there has been a correction, and the nature and date of the
correction, shall become part of the record.

Furthermore, a closer reading of the National Lumber decision reveals footnote 10 which states:

(10) Although we need go no further for the purpose of our decision, we observe that the underlying objective of the recording aspect of the statute was not thwarted in the instant circumstances. See Golden v. General Builders Supply LLC, 441 Mass. 652, 659-60 (2004) (”The statute is intended to ensure ‘that an enforcement action may readily be identified through routine title searching procedures,’ . . . and it accomplishes that objective by requiring that an attested copy of the enforcement complaint be recorded within thirty days of its filing with the court”). There was no suggestion of any third party being prejudiced or misled by lack of notice during the fourteen days that the complaint did not appear on the registry’s books. Compare L.L. Brown Paper Co., 330 Mass. at 502. Further, the property owners never disputed that they had timely notice of National’s lien, having been served with the complaint on December 4, 2002.

National Lumber, you recall, held that a mechanics lien was granted priority based on the time it was received by the registry of deeds, not the time it was actually entered into the registry’s recording system. Footnote 10 seems to imply that if an innocent third party had changed its position in reliance on the contents of the registry’s index as it appeared to the public, then the outcome would have been different than that reached based on the unique facts of this case.

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