The latest on real estate recordings and new technology from the Middlesex North Registry of Deeds in Lowell
A recent decision by the United States Bankruptcy Court for Massachusetts dealt with the sufficiency of the acknowledgement of a mortgage. The case is In re Giroux, a May of 2009 decision and the alleged defect occured when the notary public failed to insert the borrower’s name into the notary clause (”Then personally appeared ______________ and acknowledged the foregoing to be his free act and deed”). The court held that even though the notary signed the notary clause which was located on the same page as the borrower’s signature, the absence of the borrower’s name in the middle of the clause invalidated the acknowledgement. Consequently, according to the court, the registry of deeds should not have recorded the document. Since the mortgage was therefore void, the lender was left as an unsecured creditor of the bankruptcy estate.
Ironically, the court cited the Massachusetts Deed Indexing Standards as support for its holding. The intent of the Indexing Standards was to be fairly liberal about what constitutes a sufficient acknowledgement, so the holding in this decision was certainly unexpected. Over the coming days, we’ll read the decision more closely, as well as the cases and statutes cited, to see whether it will alter our own standards for accepting documents for recording.
On numerous occasions I’ve written about National Lumber v Lombardi, 64 Mass App 490 (2005) a case in which the Massachusetts Appeals Court held that a document was deemed to be on record when it was “delivered” to the registry of deeds, not when it was indexed and scanned by the registry. The members of the Massachusetts Registers of Deeds Association have been concerned that this holding could alter the longstanding practice that a document is “recorded” when it is entered into the registry’s computer system and not before.
Two identical bills, House #1527 and Senate #1826, are now pending in the state legislature. Here’s the language they both share:
SECTION 1. Section 14 of Chapter 36 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the last sentence and inserting the following:
“No deed or instrument shall be considered to have been received by the Register or left for record until said deed or instrument has been approved for recording by the register and an instrument number or document number or book and page has been assigned to said deed or instrument”
Hopefully this amendment will be enacted during this legislative session. I know if no case that has invoked the holding of National Lumber, but I suspect that is only a matter of time.
At the Middlesex North Registry of Deeds, the Grantor and Grantee Indexes from 1976 to the present are available in a single, searchable computer database that is fully available on the registry’s website (www.lowelldeeds.com). Although Indexes from 1629 to 1975 are not yet on the internet, they are available as “electronic index books” at the registry.
These “electronic index books” were created by scanning the original paper index books and saving the resulting images in the PDF format. We have retained the original date ranges of the indexes (for example, 1916-1925; 1926-1940) but within each date range, we have separated the pages of the index into separate files based on the first letter of the last name.
Because some of the letter files are more than 1000 pages long, we have created a sub-index at the beginning of each file. This sub-index is a spreadsheet that contains the first name on each page of that letter file along with the corresponding page number. By finding the name closest to the one of interest to you and using the “go to” function in the PDF program, you can jump to the area where your name is located. Once there, you can use the forward and back arrow buttons to flip through pages just as you would with the printed/bound index book.
We have now established a pilot program to test the market for selling these indexes to our customers. We have purchased a number of 16 gigabyte flash drives and have copied the entire 1629-1975 Grantor and Grantee Indexes onto each. Customers may purchase one of these flash drives by coming to the registry in person and paying $50 (we can only take checks payable to “Commonwealth of Massachusetts” as payment). Once you have purchased one of our flash drives, you may copy the data to one or more computers and use it however you wish. It is not our intent to make a profit on these transactions: the $50 just covers the cost of purchasing the blank flash drives. We haven’t given up on getting all this data onto our website; it’s just taking much longer than we had hoped. These individualized copies of the index should serve as a useful bridge to the time when a web-based solution is available.
An early draft of the Formatting Standards contained a prohibition on recording documents that contained a “watermark” but the final version that is contained in the current Deed Indexing Standards is silent on the watermark issue. That is unfortunate, because we have started to receive death certificates that have the word “copy” embedded throughout as a watermark. Presumably this is someone in government’s effort to prevent the copying of these documents so that people will be forced to purchase multiple copies of the document rather than relying on photocopies. It couldn’t be to prevent attempts to pass off photocopies as originals since all original death certificates always bear the raised seal of the issuing office, a physical change to the document that certainly can’t be reproduced by a copying machine. While I don’t want to question the motives of whomever designed this anti-copying system, I wll say that they have really messed up the ability of the registry of deeds to include such documents in our records. As you can see from this document, the watermark that was nearly invisible on the original has completely obscurred all meaningful information on the scanned copy in the official records of the registry of deeds - all but the social security number of the deceased which I have manually redacted with the blue box. I expect to raise this issue of unreproduceable death certificates at future meetings of the registers of deeds association so that we can take collective action to preserve the integrity of our land records.
A lawyer recently asked about the proper wording on a deed that was conveying a house to a same sex married couple who wanted to hold as tenants by the entirety. According to a memo from the Land Court dated May 6, 2004, the proper form would be “A and B, as tenants by the entirety” without any mention of “husband and wife” or “a married couple.” There’s no problem if that language is included, but it is not required and its absence is of no consequence. With same sex marriage having been legal in Massachusetts since early 2004, property ownership by same sex spouses is becoming more and more common.
I have long been amazed by the nonchalance the Bar displays with regard to the “National Lumber” decision by the Massachusetts Appeals Court. To refresh your recollection, that case held that a document’s priority relative to other documents is established when it is physically received by the registry of deeds; not by when it is actually recorded. Let’s say you represent the buyer of a parcel of real estate at a closing scheduled at the registry at 10 a.m. tomorrow. The closing goes smoothly, you do your rundown, record and disburse the funds by 10:15 a.m. At 11:00 a.m., a full 45 minutes after you have finished at the registry, we record a new mortgage on that same property, granted by the person who just sold to your client. “Not a problem,” you conclude, since this new mortgage went on record after the deed into your client. But what if that new mortgage arrived by Fedex and we had signed for that package at 9:55 a.m. Fedex being an efficient company, it has precise records establishing when their delivery person relinquished custody of the package containing that document to the registry. When you apply the holding of National Lumber to these facts, you’re out of luck – you’ve missed a mortgage that has priority over your deed. Call your carrier.
The state’s registers of deeds recognize the havoc that could result from the holding of this case so we’ve proposed legislation that would rectify this problem. A bill was recently filed but has not yet received a number (when it does, I’ll make another post). Here’s the language:
“No deed or instrument shall be considered to have been received by the register of left for record until said deed or instrument has been approved for recording by the register and an instrument number or document number of book and page has been assigned to said deed or instrument.”
Those of you who come to the registry and use our public search computers are familiar with our electronic version of the pre-1976 indexes. Everything back to 1629, both Grantor and Grantee, are available as “electronic books” in PDF format. For the past three years, we have tried repeatedly to make these indexes available on their website. Given their electronic size, that’s been a challenge. We were making real progress when the current budget crisis struck, forcing us to cut funds that had been allocated for the completion of that project and prompting us to alter our strategy.
Recently, registry employees began a massive back indexing project. We have began with documents recorded in 1975 and are indexing them directly into our computer system without regard to the manner in which they were previously indexed. This will ensure that the data in our searchable database is consistent and in compliance with the latest deed indexing standards. Despite our best efforts, this will be a lengthy project. In the meantime, we have decided to once again make the indexes in PDF format available to you in electronic form for your own use.
Formerly, we asked you to provide us with a set of CDs upon which we would copy the various indexes. This required more than a dozen CDs, making it very difficult for us to physically copy that many disks for the number of customers who wanted the data. But as is often the case, technology may have come to our rescue. The combined Grantor and Grantee indexes from 1629 to 1976 total 12.5 gigabytes of storage space. Today, you can purchase a “thumb drive” also known as a “flash drive” of 16 gigabyte capacity for about $40 (at Walmart, at least). So, if you wish to obtain a copy of our indexes, next time you come to the registry, bring a blank 16GB flash drive with you and we’ll make you a copy that you can then add to any and all of your computers.
Today we introduced our new indexing project to a group of registry employees. Commencing next week, we will begin indexing documents recorded prior to 1976 in reverse chronological order. While most of today’s discussion dealt with technical matters related to our computers and software, some substantive items were discussed. Here are four of them:
Index names and addresses in accordance with the current Deed Indexing Standards
“Thirty years ago, documents looked a lot different than they do now. For example, many mortgages look just like deeds. Look for either “quitclaim covenants” (makes it a deed) or “mortgage covenants” (makes it a mortgage).”
“Try to avoid indexing things as MULTIPLES even though you will see quite a few of them. Try to decide which is the dominant document and use that for the document type. For instance, a Deed might also contain a Vote – call it a Deed – or a Mortgage might also contain an Assignment – call that a Mortgage but be sure to add to the index the name of the party to whom it is being assigned to the index.”
“If the property address on a deed is not clearly identified (and in older deeds it usually isn’t), just leave that field blank. Do not use a street name from the description in the STREET field. ”
Watch for additional blog entries on this topic as the project progresses.
If you searched our records for the most prolific lender in this district, you would conclude that it was Mortgage Electronic Registration Systems. Unfortunately, that entity, more commonly referred to as MERS, is only an agent for a wide variety of banks and mortgage companies. When MERS first came into existance, we and other registries concluded that the only name we would enter into the index as a grantee on a MERS mortgage was MERS. Even though the underlying lender was named in the mortgage, we felt that by also entering that name, it would defeat the purpose of MERS which was to have a central point of contact for anything related to these mortgages. This approach helped us handled the enormous number of mortgages we recorded during the past real estate boom. Now with the market having slowed so much and everyone trying to sort out what exactly happened, knowing which banks made all of those MERS loans has become more important. Starting next week, therefore, we will begin revisiting our index entries for MERS mortgages during the past five years and add the name of the underlying bank to our computer system.
Earlier this year, much attention was paid to so-called “multifunction documents.” Such a document would consist of a single paper that performed multiple functions. The most common example is probably a single document that discharges a mortgage, an assignment of leases and rents and a UCC financing statement. That document performs three separate functions. The
Appeals Court, in the Patriot Resort case, ruled that the plain language of the recording statute allowed the registry to only charge a single fee - $75 – for such a recording. In an outside section to the FY09 budget, however, the legislature amended the recording statute to charge a separate fee “for each document referenced.” Consequently, the fee to record the document described above would be $205 - $75 for the discharge of mortgage, $75 for the discharge of the assignment of rents, and $45 for the termination of the filing statement.
A related formatting practice that has largely gone unnoticed is called a “multiple document” in which a document that would be recordable in its own right (such as a death certificate or trustee’s certificate) is attached to another document (such as a deed) as an exhibit. Today I received the following email from an area law office:
There has been discussion on various list serves of incorporating a trustee certificate inside a deed. We have questioned a few attorneys and they confirm they routinely do it. We are wondering if we adopt the same practice could we save our clients the extra $75 of a separate filing fee. (This is simply for a deed out of a nominee trust. Thoughts?
Here’s my response:
The Massachusetts Deed Indexing Standards (standard 7-9) specifically prohibit that practice so if the registry personnel spot the attached certificate, they should refuse to record the document. The deed and the trustee certificate should be recorded as separate documents. I suspect that the enforcement of this and the rules regarding “multifunction” documents (such as a discharge that discharges both a mortgage and an assignment of leases and rents) will be enforced more strictly in the coming weeks.
As the economy worsens, there will be more pressure to save on recording fees, but there will be equal pressure on the registry to maximize the revenue coming into the state.
The recent amendment to Chapter 262, section 38 (contained in Outside Section 74 of the recently enacted state budget) was intended to codify the method of calculating fees on “multifunction documents” as it existed before the Appeals Court issued its decision in the Patriot Resort case. By way of background, Patriot Resort is a time-share in the Berkshires that provided financing to hundreds of condos with each unit having separate mortgages for each owner of a week-long time share. When Patriot Resort assigned all of these mortgages to a large financial institution, it combined them all together into a single document that it sought to record at the Berkshire North Registry of Deeds. Because each of the aggregated assignments served a separate function (i.e., assigning a separate mortgage), the registry treated this as a “multifunction document” indexing each assignment as a separate instrument with a separate recording fee. With so many assignments involved, this resulted in an astronomically high recording fee and Patriot Resort sued for a refund claiming it should have been charged only a single fee for recording this single (albeit blanket) assignment. The Appeals Court agreed reasoning that the plain language of the statute did not permit multiple charges. Because of the revenue that would be lost and the damage that would be done to the indexing system by this holding, the Secretary of State in conjunction with the registers of deeds proposed an amendment intended to restore the pre-Patriot Resort practice. Here’s the key language of the amendment:
provided, however, that if the paper includes multiple references to a document or instrument intending or attempting to assign, discharge, release, partially release, subordinate or notice any other document or instrument, each reference shall be separately indexed and separately assessed an additional $50 fee
While this language clearly permits the multiple charges that were imposed in the Patriot Resort situation, it may have overshot the mark. By its very nature, a subordination effects two documents – the mortgage being relegated to junior position and the more recent mortgage being granted a superior position. A literal reading of the recent amendment could lead one to conclude that since a subordination includes “multiple references” then “each reference shall be separately indexed and separately assessed an additional $50 fee” which is what some registries are doing. But subordinations were never considered multifunction documents, nor was the intention of the amendment to make them multifunction documents.
From my prior experience with the Deed Indexing Standards, I know that this whole area of multifunction and multiple documents defies clear and concise rules. There are so many different situations and different combinations, that the judgment and discretion of the folks at the recording counter play a much larger role than the words of any draftsman. All I can say is that the registers of deeds collectively understand the difficulties the varying interpretations of this statute are causing for our customers and we’re working to resolve them as quickly as possible.
A few days ago I wrote about the new amendment that codified the previous registry practice of charging multiple fees for documents that performed multiple functions, a practice that was overruled by the Appeals Court in the Patriot Resort case. The new amendment cleared the way for registries to return to the prior practice. Unfortunately, the language of the amendment may be open to multiple interpretations, so individuals trying to record documents are apparently confronting unexpected fees, even under the new system. I’m confident the formula for charging for multiple documents will be clarified soon, but in the meantime, here’s a document that the Registers of Deeds Association produced back in 2006 that lays out the calculations of charging (or not chargine) multiple fees under a variety of scenarios.
In an outside section of this year’s state budget that was just signed by the governor, the confusion over the fees charged for multiple documents should finally be cleared up. You may recall that the practice in many registries was to charge multiple fees for documents that performed multiple functions. For example, if one piece of paper discharged a mortgage and an assignment of leases and rents, it was doing the job of two separate documents. The registries would therefore index it as two documents and charge as though it were two documents. This practice was challenged by the developer of a time share resort in Berkshire County who ended up paying about $70,000 in filing fees for a “multiple assignment.” With that much money at stake, the matter went all the way to the Appeals Court which ruled that the law allowed registries to charge a single fee for a single piece of paper regardless of how many matters were contained in it. This new amendment reverses the appeals court and not only permits the multiple fee practice, it mandates it. And it applies retroactively. Here’s the text of the amendment:
a) Except as otherwise provided, the fees of the registers of deeds to be paid when a document or instrument is recorded shall be subject to a surcharge of $20; provided, however, that if the document or instrument to be filed includes multiple references to a document or instrument intending or attempting to assign, discharge, release, partially release, subordinate or notice any other document or instrument, each reference shall be separately indexed and separately assessed an additional $20 surcharge. The fee for recording a municipal lien certificate shall be subject to a surcharge of $10; provided, however, that if the certificate includes multiple references to a document or instrument intending or attempting to assign, discharge, release, partially release, subordinate or notice any other document or instrument, each reference shall be separately indexed and separately assessed an additional $10 surcharge. The surcharges imposed shall be used for community preservation purposes. No surcharge shall apply to a declaration of homestead under chapter 188. No surcharge shall apply to the fees charged for additional pages, photostatic copies, abstract cards or additional square feet for the recording of plans.
Questions about the proper procedure for re-recording a document have arisen lately, so that will be today’s topic. This typically becomes an issue when a problem is discovered after the original document has been recorded. Some of the cases we’ve seen involve ommitting the type of tenancy on a deed into multiple owners, placing the wrlong property address on a document or misspelling a party’s name. The standard practice has been to retrieve the original document, make the correction on it, add an annotation describing the reason the document is being recorded again, and then record it again, assigning a completely new book and page number to it. This was usually done without the knowledge of the party who had signed the document. The proper procedure for handling this situation from the registry’s perspective came up at several meetings on the Deed Indexing Standards. It seems that legally proper way to re-record the same document was to have it re-executed and re-notarized. The registers of deeds collectively decided that the cleanest way of handling this was to require an entirely new document and to completely prohibit the re-recording of any document (although I assume that if an original document was attached to an affidavit, then the document would get recorded as an attachment, but not as an independent document). This all led to the adoption of Deed Indexing Standard 7-11 which states: “The former practice of “re-recording” a document to correct an error or ommission is prohibited.” Although this office has not aggressively enforced this relatively new standard, we will do so now.
Clipping the Notice of Mortgagee’s Sale from the newspaper and taping it to the affidavit of sale on a foreclosure deed is a practice that has outlived its usefulness. I’ve often wondered why we require the orginal clipping rather than a photocopy of it. Admittedly, I’ve never inquired of anyone because up until now it was just a matter of curiousity. But with are relatively recent conversion to the “scan and return immediately” method of capturing images, the speed of scanning is at a premium. Feeding the page with the taped legal notice clipping through the scanner often results in a crumbled disaster, because the clip is only taped at the top and the bottom and it often becomes unsynched from the underlying page when travelling through the scanner’s auto feed. To prevent this from happening, we’re now photocopying the page of the document with the clip and feeding that through the scanner. If anyone can shed any light on the newspaper clipping requirement, please send me an email.
A local attorney discovered a tricky title issue today that shows up on a mortgage recorded in Book 21582, Page 1. The property involved is at 16 Congress Street in Dracut and the current owner is Empire Property Management Corp which bought the property from the town of Dracut back in 2002. The mortgage in question (from 2007) gets the parties mixed up. In the granting clause, it says “White Fox Development (the lender) grants to Empire Property Management Corporation (the property owner) with mortgage covenants . . .” While the correct property owner did sign the mortgage, when we enter indexing data into our database, we use the identities and spellings set out in the granting clause so we indexed this one with Empire as the grantee and White Fox as the grantor. If we noticed the discrepancy between the granting clause and the signature on the mortgage, we may have entered Empire twice, once as grantor and once as grantee. But our checklist requires us to ensure the document is signed, not to match signatures with the names in the granting clause. Now that we’ve learned of the discrepancy, we’ve added Empire’s name a second time with a “grantor” annotation and have made a marginal reference to the deed. Hopefully, the someone with the authority to do so will record a Scrivener’s Error Affidavit to clarify the record.
A customer sent an email asking how to discharge an old mortgage that’s past it’s maturity date and where the lender is a corporation that was long ago dissolved. Oh, and it’s registered land. If there’s no stated maturity date, then the mortgage expires in 35 years. If there is a stated maturity date, then the mortgage expires 5 years after that. For example, if a mortgage executed and recorded in 1980 stated it was due and payable in 20 years, that mortgage, that mortgage would have been deemed discharged in 2005. Of course, if there’s a valid extenion, acknowledgement or affidavit that the mortgage has not been satisfied, then it is not discharged. Absent that, if you have a mortgage that falls into this category, you should submit a written request that a “discharge notation” be made on the certificate. Your request should specify the document number of the mortgage and the date of registration, the original mortgagor and mortgagee and any assignee. Sign the request and include a check for $75 and, if all is in order, we will make the notation on the certificate.
On January 25, 2008, Governor Patrick signed legislation eliminating the final paragraph of G.L. c. 183A, s. 9 which required that the first deed out for any condominium unit have attached to it a copy of the floor plan of that unit and the adjacent units. The floor plan attachment is no longer required, although this statutory amendment does not take effect until April 24, 2008. As a practical matter, this should not have a major impact at the registry of deeds. Although we have been aware of the former requirement, we chose not to research every condo deed being recorded in an attempt to determine whether it was the “first one out.” Nevertheless, the absence of such a unit plan would raise questions about the validity of the deed, or at least its compliance with the law, so this is welcome legislation.
The Massachusetts Appeals Court issued its decision in Patriot Resorts Corp v. Register of Deeds for Berkshire North (No. 06-P-725), a case that may change the way that registries of deeds around the state calculate some recording fees. Patriot Resorts was the developer of a time share resort in the Berkshires. Buyers of time shares would receive a deed to the unit for a set period of time and, in most cases, a mortgage from Patriot Resorts. As a developer and not a bank, Patriot Resorts would quickly assign those mortgages to another financial institution. Rather than put one assignment on one piece of paper, Patriot would bundle dozens, if not hundreds, of assignments together in a single document. Following the accepted method of pricing documents, the Northern Berkshire Registry would charge a separate recording fee for each assignment. With recording fees reaching six figures, Patriot filed suit and, when a Superior Court judge ruled in the registry’s favor, appealed. By a two to one decision, the appeals court reversed the judgement of the Superior Court, holding that the applicable statutes did not permit the registry to charge multiple fees for multiple document. While this case has far reaching implications, we will maintain the status quo for now until a decision is made on whether to seek further judicial review of this matter.
Yesterday I attended a meeting of the REBA Registry Committee at the REBA (Real Estate Bar Association of Massachusetts) headquarters in Boston. The main topic on the agenda was electronic recording and that proved to be an interesting discussion with both sides (the registers and the attorneys) sharing their questions and concerns. But I’ll leave that to a future post because I learned of pending legislation that may be of interest to some of our readers. MGL c.183A, s.9 has always required a copy of the floor plan of a condominium unit to be recorded a along with the first deed to that unit. At this registry, at least, we have left that to the honor system since it would be impractical for us to ascertain whether a deed represented the first deed for that unit or whether it was a subsequent one. But while we will let your deed get on record even without the required plan, the absence of that plan could create a title defect. So a bill to abolish this requirement has passed both houses of the state legislature and is now on the governor’s desk awaiting his signature. Governor Patrick is expected to sign it any day now, but there is no emergency preamble was the amendment to the law will not take effect for 90 days. The amendment also retroactively cures any deeds that omitted the required floor plan which should be of some relief to real estate practitioners.
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