Thursday, September 22, 2005

More on National Lumber

Yesterday the Legislative Subcommittee of the Massachusetts Registers of Deeds Association held a meeting in Worcester. We discussed the implications of the National Lumber case at length. While we all disagreed with the decision in the case – it interprets archaic statutes in a way divorced from the reality of the recording business – we are compelled to follow its dictates until the relevant laws can be changed. The Appeals Court, in interpreting sections 14 and 26 of chapter 36 of the Massachusetts General Laws essentially decreed that a document is deemed to be “recorded” when it physically comes into the custody of the registry of deeds. After that, the registry has 24 hours to fully index the document. Until this case, every registry (and every attorney, for that matter) has considered a document to be recorded when the registry enters the document in the index and affixes some recording information (usually date/time of recording and instrument number) to the document. An unwritten rule has evolved that says, if you are concerned about when your document is to be recorded, have a human being bring it to the registry and stand there while it is recorded. Not unreasonably, registries have treated mail as “time non-sensitive” meaning that anyone who mails something to the registry can’t be all that concerned with how quickly the document is recorded. Obviously, the registry has a duty to record documents received by mail within a reasonable amount of time. But what is “reasonable” is a variable concept: mail received on a Wednesday in the middle of the month is recorded much quicker than a document received on the last day of the month when our walk-in business usually doubles. Tony Vigliotti, the Register of Deeds in Worcester, gave some historical context to this situation when he recalled that when he started as register (at a very young age) back in 1978, the registry would record all mail before taking a single customer. That changed because the public wouldn’t stand for it, but if one was to follow the letter of the law and of this decision, that’s exactly how recording should be done. Here in Lowell, our mail arrives at approximately 11:00 a.m. each day. If we were to follow the prescribed steps (without modification) we would have to immediately stop all walk-in customer recording, concentrate all of our efforts on recording that day’s mail, and only begin to record walk-in customers again when the mail was all recorded. Now that would be a big change.

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