The Use and Misuse of 5B Affidavits

Massachusetts General Laws chapter 183, section 5B states 

Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.

Some registers of deeds across the state – including me - have found that these “5B” affidavits are sometimes used not to clarify the chain of title as required by the statute, but to cloud the title with information that, as a practical matter, constitutes an encumbrance on the property. Given the strong public policy against allowing encumbrances to be created without judicial or specific statutory authorization, do the registries of deeds have the authority to refuse to record a 5B affidavit that has the effect of tying up the property, not clarifying the title?

However, I am also of the opinion that by requiring an express, written certification by an attorney “that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title,” the statute places the authority for making that determination on the attorney and that the registry of deeds may be powerless to second guess that determination.

The last sentence of the section – that such an affidavit “shall be recorded in the registry of deeds” – does raise a question of who the “shall” is directed to. Is it to the attorney, telling him or her that such an affidavit must be recorded? Or is it directed to the registry, commanding us to record a 5B affidavit, however, egregious we feel its content may be?

The registers of deeds association will discuss this in upcoming meetings. If any readers have an opinion on this issue, please share it here as a comment or send it to me directly at mailto:lowelldeeds@comcast.net.