Tuesday, January 12, 2010

The latest on National Lumber

You will recall that the Massachusetts Appeals Court several years ago issued a decision regarding priority of recording commonly called the National Lumber case. Simply put, the ruling held that a document is deemed to be recorded when it is received by the registry of deeds as opposed to when the registry actually records it. For example, a lien delivered to the registry by UPS at 9 am but not recorded until 10 am would have priority over a deed recorded at 9:15 am even though information about the lien would never get into the registry’s index until well after the deed was recorded.

In response to National Lumber, the Massachusetts Registers of Deeds Association filed a bill in the state legislature to clarify the point at which a document is deemed to be recorded. The registers’ bill (Senate 1861) states “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.”

The Real Estate Bar Association of Massachusetts (REBA) filed its own version of this bill (House 3773) which states as follows:

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

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.

Today in Worcester representatives of REBA met with many of the registers of deeds in an effort to reconcile the two versions of the bill. After much informative debate, the parties agreed to each create a small sub-committee to continue the discussions.

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