A. Certain changes are not "alterations" and are acceptable.

An alteration is a change which on its face appears likely to have been made after the instrument was executed, such as a handwritten change or a whiteout. However, if the document shows that the change was made intentionally by the parties to the instrument, or with their approval, it should not legally be considered as an alteration. Thus changes to an instrument which have the handwritten initials of the parties alongside the change are not considered alterations for the purpose of this guideline and may be accepted for filing without other documentation.

B. Three categories of alterations.

Alterations of instruments can be separated into three categories:

Category 1.

The first category consists of changes and insertions of information which are either obviously required or are of a ministerial or clarifying nature. Examples of this category include, but are not limited to, the following:

(1) the insertion of the address of the property in the margin of a deed or on a discharge of a mortgage;

(2) the insertion or correction of an erroneous reference to either the date or the record reference (but not both) to a mortgage in the case of an assignment, partial release, or discharge of such mortgage;

(3) the insertion of the grantor’s Certificate of Title number in a deed;

(4) the insertion of the Certificate of Title number indicating where a Land Court plan is filed when the plan is already referenced by a Land Court plan number;

(5) the deletion or addition of a middle or first initial of an individual;

(6) the addition of another name of a party as a result of change of marital status;

(7) the correction of a minor variation from the correct name of a corporation, limited partnership, limited liability company or other entity, such as the omission or addition of "The" or the interchange of "Corporation" for "Corp";

(8) changing "for no monetary consideration paid" to "for consideration paid of one dollar" or "love and affection" (or words of similar import) in a deed;

(9) the correction of obvious misspellings or the addition of prefixes or suffixes;

(10) the insertion of "formerly known as" or "f/k/a" or "also known as" or "a/k/a" or "successor to" followed by a name of a person or entity, when the change is plainly made for the purpose of clarification;

(11) changes in the form of tenancy in the grantee clause of a deed, provided the alteration does not negate the decision regarding survivorship rights reflected by the unaltered deed. This Category 1 includes insertion of a form of tenancy where none is specified, and changing a joint tenancy to tenancy by the entireties, or vice versa, which may be accepted without further inquiry. If the deed indicates a change from a joint tenancy or tenancy by the entireties to a tenancy in common, or vice versa, all grantees must initial the change; if they do not, but instead supply the affidavit called for under Category 2 (signed by all grantees) the change will be treated as a Category 2 alteration; otherwise the change will be treated as a Category 3 alteration;

(12) the insertion of the official, corporate or similar office or title of a signatory; or

(13) the addition of Book and Page or instrument numbers of recorded or filed instruments otherwise accurately described in the instrument presented for filing.

Alterations of an instrument in this first category may be accepted, without further documentation and without Court approval, unless in the judgment of the registry personnel there is something unusual about the alteration which requires further inquiry in which case the requirements for the second category may be considered. Alterations of a grantee’s name, except as described above, do not belong in this category.

Category 2.

The second category consists of alterations which do not belong in the first category or the third category but which do not separately or in the aggregate change the substance of the instrument. Handwritten changes may be considered in this category in the discretion of registry personnel. A change in the grantee clause of deed which changes the form of tenancy from one with a right of survivorship to one without survivorship, or vice versa, falls into this Category 2, requiring an affidavit of all of the grantees, unless all grantees have initialed the change; otherwise the change will be treated as a Category 3 alteration. Other types of alterations in this second category may only be accepted for filing when accompanied by the affidavit of an attorney, or of a grantor in the instrument, stating in substance that the alteration(s) were made to conform to the intention of the parties to the instrument. Suggested forms of affidavit are attached to this guideline. Changes to the names of the grantees in a deed (except as described above as belonging in the first category) belong in the third category.

Category 3.

The third category consists of changes in the name(s) of the grantee(s) in a deed (except as permitted under Category 1) or other alterations which change the substance of the instrument, such as the addition or deletion of parcels of land. Changes to documents issued by a court, such as an order authorizing the filing of an attachment or a lis pendens, are in this category, unless clearly ministerial. Changes in this third category shall not be accepted for filing without an order of the Court or approval of the Court’s Chief Title Examiner or his or her designee.

AFFIDAVIT OF ATTORNEY

The undersigned, an attorney at law, make the following statements of my own personal knowledge:

1. I am the attorney for ______________, the grantor(s)/grantee(s)/mortgagee(s) [select one] named in the deed/mortgage [select one] to which this affidavit is attached. I participated in the preparation of said deed/mortgage/participated in the closing of the transaction of which such deed/mortgage is a part/advised the grantor(s)/grantee(s)/mortgagee as to the execution and delivery of such deed/mortgage [select appropriate facts].

2. Subsequent to the preparation of such deed/mortgage, the following changes to the deed/mortgage were made at the time of delivery of the deed/mortgage/in the process of preparing to record the deed/mortgage [select appropriate facts]:

a) _____________________________________

b) _____________________________________

c) _____________________________________

3. All such changes were made with the consent and approval of the grantor(s)/grantee(s)/mortgagee [select appropriate facts] in order to conform the deed/mortgage to their intentions.

Signed under the pains and penalties of perjury this _____ day of _____________, 2000.

________________________________

Print name

BBO # _________________

AFFIDAVIT OF GRANTOR

The undersigned make the following statements of my own personal knowledge:

1. I am [one of] the grantor(s)/mortgagor(s) [select one] named in the deed/mortgage [select one] to which this affidavit is attached.

2. Subsequent to the preparation of such deed/mortgage, the following changes to the deed/mortgage were made at the time of delivery of the deed/mortgage/in the process of preparing to record the deed/mortgage [select appropriate facts]:

a) _____________________________________

b) _____________________________________

c) _____________________________________

3. All such changes were made with the consent and approval of the undersigned/all of the grantors /all of the mortgagors [select appropriate facts] in order to conform the deed/mortgage to my/their intentions.

Signed under the pains and penalties of perjury this _____ day of _____________, 2000.

________________________________

Print name

When there is a new subdivision of a registered land parcel pending in the Engineering Department of the Land Court and that subdivision plan has not yet been received at the registry district for entry, no instruments may be accepted for registration against that plan until the said instruments have been first stamped for approval by the Land Court. The only exception to this policy is that once the first deed out of any lot on the subdivision has been approved by the Land Court Engineering Department and thereafter registered, no further instruments as to that particular lot need be further approved.

Upon judgment for the plaintiff in a civil action, existing attachments remain good for thirty (30) days from the date of the execution (MGL c. 223, sec. 59). If property is attached in Nantucket and judgment is secured elsewhere, or if a judgment is rendered in Nantucket and the property is elsewhere, they remain good for sixty (60) days from the date of execution. In order, however, to have the attachment removed from a certificate of title pursuant to this statute, a petition must be made to the Land Court.

Attachments on which there has been no execution may be dropped after six years.

Executions on which there has been no levy may be dropped after six years.

Attachment may be discharged at any time by the plaintiff or by his attorney of record.

Executions may be levied without prior attachments, but the debtor in the execution must be the same as an owner listed on the affected certificate. The relationship between an attachment and an execution is that if the attachment is made and the execution is levied within the year and thirty (30) days, it relates back to the attachment date.

A levy on property of "A" standing in the name of "B" can only be made pursuant to a Court Order which is explicitly spelled out in the execution. A sheriff’s levy cannot deviate from the execution.

7. Attorney’s Proposed Form of New Certificate

(Instructions)

This form may be used to suggest to the Land Registration District the form of new owner’s certificate of title the District will issue (or of notations to be made to the memoranda of encumbrance for an existing certificate of title) following registration of documents.

Use of the form is optional, but is encouraged if the title involved or the documents presented are complex. Any person interested in the title to land affected by a certificate of title may submit this form directly or through counsel. More than one party may submit this form. Joint submission of the same form is encouraged, but parties may submit differing versions.

This form should be submitted at the time the documents are registered; when this form is submitted later, it is possible that it may not be taken into account before the District completes its work on the certificate. Parties are encouraged to provide copies of this form to other parties involved in the transaction and to retain copies of this form and the relevant documents in the event questions arise while the District is working on the certificate.

This form is intended only to suggest to the District what action it should take in preparing a new certificate of title or notation(s). In doing its work, the District will use its own best judgment, following applicable law and court guidelines, and may accept, reject, or modify the suggestions made in this form. Nothing in this form will in any way alter or affect the registered documents themselves. This form is not intended as a substitute for a supplemental petition to the Land Court to amend or correct a certificate of title. So-called "S-Petitions" will continue to be required in appropriate cases. Use of this form does not relieve proponents of documents of the need to establish authority or to obtain prior Land Court approvals.

[__________________] Land Registration District

1. List all Certificates of Title outstanding at time documents are registered:
4. Number Registration Book/Page
6. _______________ _____________________
7. _______________ _____________________
9. (Attach Xerox copies)
12. List all new Certificate(s) of Title assigned at time of registration:
14. Number Registration Book/Page
16. _______________ _____________________
17. _______________ _____________________
20. Street Address(es) of Property: __________________________________________
23. Party or Parties Submitting this Form:
25. Name: _______________________ Counsel’s Name: ______________________
26. Address: _______________________ Firm: __________________________________
27. _______________________ Address: ____________________________
29. Phone No.:_______________________ Phone No.: ____________________________
30. Fax No.: _______________________ Fax No.: ____________________________
31. Grantor ______ Grantee ______ Mortgagor ______ Mortgagee ______ Other ______
34. Name: _______________________ Counsel Name: _______________________
35. Address: _______________________ Firm: ___________________________________
36. _______________________ Address: _____________________________
38. Phone No.:_______________________ Phone No.: _____________________________
39. Fax No.: _______________________ Fax No.: _____________________________
40. Grantor ______ Grantee ______ Mortgagor ______ Mortgagee ______ Other ______
42. List all documents being filed for registration (list in order of Document Nos.):

1. Set forth proposed form of New (or Modified) Transfer Certificate(s) of Title (Prepare one for each certificate of title number):

A. Owner: Name(s): ____________________________________

Description: ____________________________________

Address: ____________________________________

Comments: ____________________________________

B. Description of Land Subject to Certificate:

___________________________________________________________

___________________________________________________________

___________________________________________________________

___________________________________________________________

Comments:

___________________________________________________________

___________________________________________________________

___________________________________________________________

___________________________________________________________

i. The land is subject to:

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

Comments:

_________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

__________________________________________________________

Comments:

__________________________________________________________

__________________________________________________________

__________________________________________________________

iii. Other:

___________________________________________________________

___________________________________________________________

___________________________________________________________

Comments:

___________________________________________________________

___________________________________________________________

___________________________________________________________

i. Document No.: ________________________________________

Type of Instrument: _______________________________________ Running in Favor of: ______________________________________ Terms/Description: ________________________________________

Date of Document: ________________________________________

Date and Time of Registration: _______________________________

Parcel or Parcels Affected (if less than all): _____________________

Additional Explanatory Notation Requested: __________________

Discharge: _________________________________________________

Comments: _________________________________________________

___________________________________________________________

___________________________________________________________

ii. Document No.: ________________________________________

Type of Instrument: ________________________________________

Running in Favor of: ________________________________________

Terms/Description: ________________________________________

Date of Document: ________________________________________

Date and Time of Registration: _______________________________

Parcel or Parcels Affected (if less than all): _____________________

Additional Explanatory Notation Requested: __________________ ___________________________________________________________

Discharge: _________________________________________________

Comments: _________________________________________________

___________________________________________________________

___________________________________________________________

iii. Document No.: ________________________________________

Type of Instrument: ________________________________________

Running in Favor of: ________________________________________

Terms/Description: ________________________________________

Date of Document: ________________________________________

Date and Time of Registration: _______________________________

Parcel or Parcels Affected (if less than all): _____________________

Additional Explanatory Notation Requested: __________________ ___________________________________________________________

Discharge: _________________________________________________

Comments: _________________________________________________

___________________________________________________________

___________________________________________________________

iv. Document No.: ________________________________________

Type of Instrument: ________________________________________

Running in Favor of: ________________________________________

Terms/Description:________________________________________

Date of Document: ________________________________________

Date and Time of Registration: _______________________________

Parcel or Parcels Affected (if less than all): _____________________

Additional Explanatory Notation Requested: __________________

___________________________________________________________

Discharge: _________________________________________________

Comments: _________________________________________________

___________________________________________________________

___________________________________________________________

v. Document No.: ________________________________________

Type of Instrument: ________________________________________

Running in Favor of:________________________________________

Terms/Description: ________________________________________

Date of Document: ________________________________________

Date and Time of Registration: _______________________________

Parcel or Parcels Affected (if less than all): _____________________

Additional Explanatory Notation Requested: __________________ ___________________________________________________________

Discharge: _________________________________________________

Comments: _________________________________________________

___________________________________________________________

___________________________________________________________

vi. Document No.: ________________________________________

Type of Instrument: ________________________________________

Running in Favor of: ________________________________________

Terms/Description: ________________________________________

Date of Document: ________________________________________

Date and Time of Registration: _______________________________

Parcel or Parcels Affected (if less than all): _____________________

Additional Explanatory Notation Requested: __________________

___________________________________________________________

Discharge: _________________________________________________

Comments: _________________________________________________

___________________________________________________________

___________________________________________________________

E. Other comments and requested action concerning certificate:

_________________________________________________________________

_________________________________________________________________

_________________________________________________________________

Dated: _____________________

____________________________________

Title:

Telephone Number:

Signature of party submitting form

(or of counsel)

1. Registry districts may accept for filing documents granting, modifying or amending easements through, over and under the common areas and facilities of the condominium which are executed by the organization of unit owners acting by and through its governing body, provided that the document contains a recital of compliance with the notice and consent provisions of MGL c. 183A, sec. 5(b)(2)(i).

2. Registry districts may accept for filing documents granting to, or designating for, any unit owner the right to use any limited common area and facility of the condominium, whether exclusively or in common with other unit owners, which are executed by the organization of unit owners acting by and through its governing body, provided that the document contains a recital of compliance with the notice and consent provisions of MGL c. 183A, sec. 5(b)(2)(ii).

3. The extension, revival or grant of rights to develop the condominium, including the right to add additional units or land to the condominium, or withdrawal of common areas from the condominium, MGL c. 183A, sec. 5(b)(2)(iii), requires the approval of a Judge of the Land Court.

4. Registry districts may accept for filing documents selling, conveying, leasing or mortgaging any rights or interests to develop the condominium, after approval by the Land Court of the establishment of such rights as set forth in paragraph 3. above, which are executed by the organization of unit owners acting by and through its governing body.

A form of Condominium Unit Deed is attached. They are also available at the Land Court in Boston.

If first units out are conveyed using this form, registry personnel may accept them without prior Land Court approval. All other first unit deeds require prior land court approval. In accordance with MGL c. 183A, sec. 9, the first deed of each unit should have a plan attached thereto.

Each plan should have affixed the "as built" certification of a registered architect, registered professional engineer or registered land surveyor certifying that the plan shows the unit designation of the unit being conveyed and of immediately adjoining units, and that it fully and accurately depicts the layout of the unit, its location, dimensions, approximate area, main entrance and immediate common area to which it has access, as built. Please check in the upper right hand corner of the Land Court Unit Deed indicating that a Unit Plan was affixed.

The subsequent sale of units is to be handled in the usual manner. Attorneys may wish to use their own deed or they may use the Land Court Form. Only the first deed out of each unit, however, requires an affixed plan.

In regard to time-sharing Condominiums, the first deed of an interval in a unit must also be approved by the Court. There is no form of interval deed available from the Court.

THE COMMONWEALTH OF MASSACHUSETTS

LAND COURT

DEPARTMENT OF THE TRIAL COURT

(number and street, town or city) For consideration of

of

Commonwealth of Massachusetts, with quitclaim covenants, Unit No. of Condominium created by Master Deed dated and filed on with Registry District of County of the Land Court as Document No. noted on Certificate of Title No.

The Post Office Address of the Condominium is:

The unit conveyed is laid out as shown on a plan filed herewith, which plan is a copy of a portion of the plans filed with said Master Deed and to which is affixed a verified statement in the form provided in G.L. c. 183A, §9. It is subject to and with the benefit of the obligations, restrictions, rights and liabilities contained in G.L. c. 183A, the Master Deed and the By-Laws filed therewith.

The Condominium and each of the units is intended for residential purposes and other uses permitted by the applicable Zoning Ordinances and as set forth in the Master Deed.

The undivided percentage interest of the unit conveyed hereunder in the common areas and facilities is %.

Witness hand and seal this day of , 2000.

Personally appeared the above-named and acknowledged the foregoing instrument to be his free act and deed before me.

___________________________________

Notary Public

My Commission expires: ____________

By statute, a condominium association has a lien for unpaid common expenses. MGL c. 183A, sec. 6. Such lien is prior to all other liens and encumbrances of a unit except

1. Liens and encumbrances recorded before the recording of the Master Deed;

2. A first mortgage on the unit recorded before the date on which the assessment sought be enforced became delinquent, except there is a priority over such a first mortgage to the extent of (a) common expense assessments, based on the duly adopted condominium budget, which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien and also (b) any costs and reasonable attorneys' fees incurred in the action to enforce the lien; and

3. Liens for real estate taxes and other municipal assessments or charges against the unit.

To enforce priority for the common expense lien over a prior recorded first mortgage, as described in 2 above, either a lawsuit brought by the organization of unit owners must be commenced or an agreement in writing must be entered into by the first mortgagee, as provided in the statute, MGL c. 183A sec. 6(c).

The lien is enforced in the manner provided in MGL c. 254, sec. 5 and 5A. Enforcement is by a civil action brought by the organization of unit owners in either the local Superior Court or the local District Court. An attested copy of the complaint containing a sufficient description of the unit and a statement of the amount due must be recorded at the local registry of deeds (MGL c. 254, sec. 5). Failure to do so within thirty days of the commencement of the action results in dissolution of the lien. Id. The Court establishes the amount of the lien and enters an order authorizing the sale of the unit (MGL c. 254, sec. 5A). The lienholder must publish, using the statutory form, once in each of 3 successive weeks, the first publication to appear not less than 21 days before the date of the sale, in a newspaper published in the town where the property lies, or if no newspaper is published in such town, in a newspaper published in the county where the property lies (MGL c. 254, sec. 5A). The person or entity selling, or their attorney, may, although not required by statute, cause a copy of the notice and an affidavit, stating that the requirements of the Court order and the statute have been complied with, to be recorded at the proper registry. We will require such a filing and notation on the certificate of title.

A sale of the property conveys it subject to, and with the benefit of, all restrictions, easements, improvements, outstanding tax title, municipal or other public taxes, assessments and first mortgages recorded prior to the complaint, except that the sale is free of the first mortgage, if, as of the date of the sale, there are unpaid common expense assessments, costs, or reasonable attorneys fees the lien for which is given priority over the first mortgage under 2, above.

In summation, the following instruments should be registered and noted on the appropriate Memorandum of Unit Ownership:

1. An attested copy of the complaint containing a sufficient description of the unit and a statement of the amount due;

2. An attested copy of the Order of the Court which establishes the amount of the lien, identifies the portion thereof entitled to priority over any first mortgage, and authorizes the sale and sets forth the terms of the sale.

3. A copy of the notice and an affidavit, stating that the requirements of the Court Order and the statute have been complied with; and

4. The Deed given pursuant to the judicially ordered sale, conveying the property in accordance with the statute and the Court Order.

No new certificate of title, however, should be issued based on the above referenced instruments. If an attorney should request a new certificate of title based on the foreclosure, he/she should be advised to file a Supplemental Petition at the Land Court in Boston.

A "Subordination Agreement" or "Consent to the Condominium Regime" or similar instrument is to be noted on the Master Condominium Certificate of Title and may, but need not be, noted on any Memorandum of Unit Ownership.

If a subordination agreement or consent by the mortgagee is filed without a discharge or partial release of the mortgage, the mortgage must still be noted (on the encumbrance sheet) on the Memorandum of Unit Ownership resulting from a unit deed as set forth in the first paragraph above, until such time as the mortgage is discharged or partially released.

NOTE that this is a change in practice. Until August 1999, the court would approve Master Deeds subject to a prior unsubordinated mortgage, but would not approve unit deeds until the mortgage was discharged or subordinated to the Master Deed. Attorneys are cautioned to review the Master Condominium Certificate of Title as well as the relevant Memorandum of Unit Ownership.

The Land Court Engineers no longer prepare condominium plans for filing at the local registry. Instead, the site plan (which has heretofore been filed with the Engineering Department) along with the floor plans and condominium documents will be reviewed by the Land Court Legal Department. The condominium will then be allowed by a Land Court Judge as evidenced by the Judge’s signature on the face page of the Master Deed. After the condominium is allowed the condominium documents and plans should be filed at the proper registry.

All amendments to the Master Deed must also be allowed by a Judge. Amendments to the condominium trust do not need Land Court approval.

MGL c. 131, sec. 40 provides that a final order, determination or notification of a conservation commission or the department of environmental protection may require the recording of a plan which:

1. shows location of the proposed work;

3. is in recordable form.

The registry district should accept these plans for registration and should treat these plans in the same manner, and subject to the same requirements for registration, as easement plans. The plan should be reduced to the same size as the order, determination or notification.

The purpose of this guideline is to assist attorneys in dealing with title to registered land upon the death of a registered owner. Upon such a death, there are three possible avenues of approach.

THE METHODS OUTLINED ARE, GENERALLY SPEAKING, MUTUALLY EXCLUSIVE.

1. BY WAY OF A LICENSE TO SELL.

This method is usually utilized when the death is fairly recent and when a sale of the real estate is contemplated.

The advantage of this method is that the sale is free of debts of the deceased, costs of administration, legacies and Massachusetts estate taxes.

For details, see Method # 3.

2. BY WAY OF A SALE UNDER THE POWER IN A WILL.

This method is utilized when a sale is contemplated.

Under this method, the sale is free of debts of the deceased, costs of administration and legacies.

For details, see Method # 4.

This method is usually utilized when no sale is imminent. The heirs-at-law or the devisees in the will are entitled to a Certificate of Title in their names.

For details, see Method # 1 and Method # 2.

If Land Court form LCP-2 is presented, an Order of Court will issue. If a deed under a license is presented, the deed is approved. No petition is necessary.

This guideline is not intended to be exhaustive and addresses only the most common situations. With any method, an attested copy of the outstanding Certificate of Title must be presented.

METHOD # 1—DEATH OF ONE TENANT BY THE

ENTIRETY OR DEATH OF ANY NUMBER OF

JOINT TENANTS BUT THE LAST

Because title to land passes in such situations by operation of law to the surviving co-tenant(s) by right of survivorship, it is unnecessary for the surviving owner(s) to obtain a new certificate of title in order to deal with the property. It is necessary, however, that evidence of the death be noted on the encumbrance sheet of the outstanding Certificate of Title. There should be registered the following:

1. Certified copy of death certificate of deceased owner.

Once the above-mentioned documents are registered, the surviving owner(s) may deal with the property freely without Land Court approval.

However, if the surviving owner(s) requests a certificate of title in his/her name, an "S" petition must be filed at the Land Court Department along with a ($40.00) filing fee, the material referred to in the previous paragraph and an attested copy of the outstanding Certificate of Title. There is no form for such a petition; the surviving owner must simply recite under oath the circumstances, request the cancellation of the outstanding certificate and the issuance of a new certificate in his/her name.

METHOD # 2—PETITION FOR LAND COURT ORDER

This method is used to obtain a new Certificate of Title after the death of a person in whose name alone a Certificate of Title stands, after the death of both tenants by the entirety, after the death of any tenant in common and after the death of the last joint tenant.

1. Land Court Form LCP-2 must be completed and filed at the Land Court along with a $40.00 filing fee. Note that the petition has two signature sections. The petitioners (heirs or devisees of the deceased owner) may sign the first section of the petition or their attorney may sign for them. The statement in the last paragraph of the petition must be signed by the executor or administrator of the estate and the signature must be notarized.

2. An attested copy of the outstanding Certificate of Title must be filed with the petition.

3. Supporting documentation will vary depending upon how title to the property was held:

4. The result of this procedure will be an attested Order of the Land Court which must be registered at the Land Registration Office at the proper Registry of Deeds. In due course, a new Certificate of Title will be drawn in accordance with the Order.

DEVISE TO If property is devised to the trustees of a testamentary

METHOD # 3—SALE UNDER DECREE

(LICENSE) OF PROBATE COURT

This method and Method # 4 are alternatives to Method # 2 and are used when an immediate sale is contemplated. One of the advantages of obtaining a Probate Court decree of sale is that the property will be sold free of debts of the deceased, costs of administration, legacies and Massachusetts estate taxes, a tax release being a prerequisite for obtaining the decree from the Probate Court.

Likewise, the description of the property in the deed must conform to the description in the decree. There are several Probate Courts whose decrees do not describe the property. If the decree is obtained from one of these courts, the petition filed to obtain the decree must be presented at Land Court. In addition, if the fiduciary is the grantee in the deed, the decree of the Probate Court must state that the fiduciary is permitted to take title.

METHOD # 4—DEED UNDER POWER OF SALE IN WILL

The advantage of a sale pursuant to a Power of Sale in the will is that the property is sold free of debts of the deceased, costs of administration and legacies.

AFFIDAVIT OF NO DIVORCE

I, ______________________________, Attorney for ________________________, being the surviving owner of the premises described in Land Court Certificate of Title No. _____________, depose and say that his wife/her husband, ____________________, died at _______________________ on _________________, and at that time there had been no divorce.

___________________________________

Attorney for

Subscribed and sworn to before me this ______ day of _____________, 1999

____________________________________

Notary Public

Although, as indicated below, there is some leeway in the way a deed in such an instance can be signed, there is little flexibility as to how the granting clause should be drafted.

When a sealed instrument is executed by an agent or attorney, for the principal, the strict technical rule of the Common Law, which has never been relaxed in England or in this Commonwealth, requires that it be executed in the name of the principal in order to make it his deed" Abbey v. Chase, 6 Cush. 54. As stated in Crocker's Notes on Common Forms, Little Brown & Company (Seventh Edition, 1955), § 351, where A.B. is the principal, a deed beginning "I, C.D.," or "I, C.D. as attorney for A.B." is an improper form as to the granting clause, and will be ineffective as the deed of the principal. The deed should be drafted by reciting in the granting clause the principal's name only, as though there was no power of attorney.

As far as the execution of the instrument, the signature should be as noted below. We'll assume that Mary Doe is the principal and that John Doe is her attorney in fact under a power of attorney:

/s/ Mary Doe

by John Doe her Attorney in Fact

under Power of Attorney,

recorded with (Registry of Deeds)

Book---, Page---

In this instance John will actually sign Mary's name. Although the above form is the preferred one, the signature "John Doe for Mary Doe" would seem to be satisfactory. See Mussey v. Scott, 7 Cush. 215.

The acknowledgment, like the deed, should be that of the principal (albeit through the act of the agent), as follows:

16. Deeds: Nominal Consideration

Deeds and other instruments of conveyance may be accepted for registration when they recite that they are given "for nominal consideration", "for no consideration", "for consideration of [any amount of dollars less than $100]", "in consideration of love and affection", "as a gift", or any other similar words which communicate that the conveyance is made for nominal consideration. Deeds of a Trustee given for nominal consideration must nevertheless comply with Guideline 53: Trusts: Trustee’s Deed for Nominal Consideration.

No deed, mortgage or other instrument transferring an interest in real estate may be filed after one year from the date of its execution unless it (a) is accompanied by the affidavit of an attorney or a person having personal knowledge of the facts and stating whether the grantor and the grantee under the deed are still living or (b) has been re-acknowledged by all grantors within one year prior to the date of the delayed filing.

If the grantor has died, the document may not be accepted for filing without an order of the Court. The attorney should be advised to file a Supplemental Petition. An affidavit will be required confirming that the instrument was delivered to the grantee or an agent of the grantee during the grantor's lifetime. Assent of the heirs or notice to the heirs may be required.

If the grantee has died, the instrument will be accepted for registration but no certificate will issue in the name of the deceased; the heirs or devisees may thereafter petition for a new certificate after death, upon completion of applicable probate proceedings, or otherwise in accordance with Guideline 14: Deeds: The Effect of Death upon Registered Land Titles.

A. A description incorporating by reference the lot number on a Land Court Plan, together with a reference to the certificate with which the plan is filed, may substitute for a metes and bounds description when the certificate of title is prepared.

B. The following procedures apply to any conveyance of a portion of the land held under a certificate of title, and to any conveyance of all or any portion of the remainder parcel resulting from any such conveyance ("remainder parcel"). The following procedures reflect a change from prior practice. "Notation deeds" or "exception deeds" of registered land will not be accepted.

1. A deed of registered land will be accepted for filing only if it conveys a lot or lots shown on a Land Court Plan.

Before conveyance of any lot or lots constituting less than all of the land described in a certificate of title, the owner shall file a plan of such lot or lots, which shall accurately depict the boundaries and monuments describing such lot. The deed shall convey the lot by reference to its identification on the plan. A new certificate will issue for the lot conveyed, and the deed will be noted on the certificate of title for the original parcel stating that the certificate of title is canceled as to the lot conveyed.

2. No deed of a remainder parcel will be accepted for registration unless and until a plan of the remainder parcel is filed. Such plan shall include a lot designation for the remaining land. Any deed conveying the remainder parcel should convey the remainder parcel by reference to its identification on such plan.

3. Lots may be conveyed out of a remainder parcel, without a new plan of the full remainder parcel. However, a plan of the lot to be conveyed is required. In such cases, the owner should also file with the engineering department a "reference plan" showing the lot(s) to be conveyed in relation to (i) all lots previously conveyed from the land originally described under the certificate of title, and (ii) the land remaining after the proposed conveyance. Such "reference plan" may be compiled from the plan(s) of the lot(s) conveyed out from the original tract, together with the plan originally filed with the certificate of title to the original tract. The "reference plan" shall be for information and illustration purposes only to facilitate review of the plan of the lot(s) to be conveyed.

4. Instruments conveying a mortgage interest in land are subject to the same procedures described above. Accordingly, a mortgage will be accepted for filing only if the lot described in the mortgage is shown on a Land Court Plan. If a portion of such land is conveyed after the mortgage is filed, a foreclosure deed of the remainder parcel may be accepted for filing. However, no certificate will issue for the remainder parcel, and no further conveyance of the remainder parcel may occur, until a plan of the remainder parcel is filed.

5. A lease or easement describing a portion of a lot shown on a plan attached thereto as an exhibit should be accepted for filing.

If a deed grants the fee of one lot (Lot "A") to a person and the same deed grants or otherwise creates rights, such as an easement or restriction, for the benefit of the grantee of Lot A over another parcel of registered land (Lot "B") owned by the same grantor, registry personnel should check the outstanding certificate of title to verify that the grantor does in fact own Lot B and the deed creating the rights must be noted on the encumbrance sheet of Lot B. Said deed should be noted on the Memorandum of Encumbrances attached to the certificate of title covering Lot B as a deed of Lot A with restriction or a deed of Lot A with easement (or other appropriate notation).

The same deed should be noted as an appurtenant right on the face of the certificate of title to be made up for Lot A.

If the owner of Lots A and B (both registered) conveys Lot A, retains Lot B and reserves an easement or other rights over the granted land (Lot A) for the benefit of Lot B, such reservation should be noted as an encumbrance on the Memorandum of Encumbrances of the new certificate of title in the name of the grantee of Lot A and should be noted on the Memorandum of Encumbrances attached to the certificate of title for Lot B as a deed of Lot A with easement, covenant or restriction. When making up the next certificate of title for Lot B, registry personnel should include on the face of the new certificate, the appurtenant right (easement, restriction or covenant) created for the benefit of Lot B in the deed of Lot A. However, this appurtenant right should only be included on the face of the certificate of title to issue if all the mortgagees of Lot A subordinated their interests as mortgagee or consented to the easement, covenant or restriction.

If the Owner of Lot A grants to the owner of Lot B (both registered) an easement, covenant or restriction for the benefit of Lot B, such grant should be noted as an encumbrance on the Memorandum of Encumbrances for Lot A and should also be noted on the Memorandum of Encumbrances for Lot B. When the next certificate of title is made up for Lot B, this appurtenant right should be included on the face of the new certificate of title to issue as long as the mortgagees of Lot A subordinated their interests as mortgagee or consented to the easement, covenant or restriction set forth in the grant to Lot B.

A grant of easement, restriction or covenant from the owner of an unregistered parcel to the owner of a registered parcel which easement, restriction or covenant runs over or burdens unregistered land, should be accepted for filing and noted on the Memorandum of Encumbrances as easement, restriction or other identifying notation . Said appurtenant right should not be noted on the face of the next certificate of title to be issued without the filing of a Supplemental Petition.

A deed which grants a fee to Lot A and an easement over the same locus to Lot C is a nullity as far as the easement is concerned if the owner of Lot C is a stranger to the title (that is, neither grantor nor grantee). The easement must be created by a separate instrument.

Note to practitioners: We encourage attorneys who are preparing deeds that include restrictions, easements, covenants or similar matters to highlight the rights created or reserved in the deed and to entitle the instrument "Deed With Restriction", "Deed With Easement" or other appropriate caption. This will help registry personnel to enter the instrument on the Memorandum of Encumbrances.

See also Guideline No. 7, Attorney’s Proposed Form of New Certificate.

Executions may be deposited by a deputy sheriff for eventual levy by sale or set off as follows:

If the land has been attached, execution must be levied on within thirty days after final judgment and a copy of the execution must be deposited with the Registry District within forty days after the judgment. This period of time is 70 days for Nantucket County.

Executions so deposited will expire in six years and ninety days unless brought forward or enforced within six years after the deposit.

The Registry District personnel should make certain that the premises described in the execution are the same premises as are covered by the Certificate of Title. The debtor in the execution must be the holder of the certificate of title. You cannot levy on property of "A" standing in the name of "B" unless the execution issued by the Court which granted the judgment so states.

MGL c. 236, sec. 4 provides that an Officer having an execution where there was no previous attachment may make a taking of the defendant's land by depositing a copy of the execution at the registry district with a memorandum that it has been so taken.

If an attachment is made and the execution is levied within one year and thirty days after the attachment, the execution relates back to the date of the attachment and will apply to any Certificate on which the attachment is noted. A satisfaction of the execution will also serve to discharge the attachment.

A creditor of either husband or wife, whose principal residence is held in a post-1980 tenancy by the entirety (MGL c.209, §1) may attach but may not levy on the execution.

A certificate issued by the clerk of court where the execution issued marked "satisfied in full" is usually obtained to clear the record title of a cloud created by an unexpired execution.

An execution may also be released by an instrument executed by the deputy sheriff making the seizure, or by the execution creditor. The release may not be executed by the creditor's attorney.

Various matters shown on a certificate of title’s memorandum of encumbrances may expire or become of no force and effect by passage of time and/or by operation of law.

Examples include:

- restrictions which have expired by their terms;

In such cases, the District should enter, directly on the memorandum of the relevant encumbrance, an appropriate notation such as "Expired by Statute" or "Expired by its Own Terms" to reflect that the listed encumbrance is no longer in force and effect. The notation should be made in a manner similar to that used to indicate the discharge of a mortgage following filing of an appropriate mortgage discharge.

These notations should be made by the Districts on their own or upon request of an interested party. These notations should be made by the Districts without further approval from the Court if there is no issue about the expiration of the encumbrances. Doubtful questions may of course be referred to the Court’s Chief Title Examiner or his or her designee.

A faxed instrument produced on plain paper bearing original signature is acceptable for registration provided it is legible in its entirety. A faxed instrument produced on thermal paper, even with an original signature, is never acceptable for registration.

A faxed instrument without an original signature is equivalent to a photocopy and therefore unacceptable for registration.

Attached hereto is a list received from the FDIC of the failed banks in the New England area for which the FDIC had acted as Receiver/Liquidating Agent as of August 1, 1999.

The Court will from time to time issue revisions to the list.

In addition, in a number of instances the receivership of the FDIC has been terminated, and in the process the remaining assets of the receivership have been sold to the FDIC in its Corporate capacity. In such cases, FDIC-Corporate has the rights, powers, privileges and authorities of the terminated receivership, pursuant to 12 USC §1823(d)(3), and may sell or otherwise deal with the remaining assets that were included in the terminated receivership.

A list of terminated receiverships follows this Guideline.

When papers executed by the FDIC are presented for record, of course, the authority of the signatory must be verified. If there is a power of attorney recorded in the recorded land section of your registry reference may be made to that book and page.