Wednesday, May 02, 2018

REBA Spring Conference Report

Yesterday I attended the 2018 Spring Conference of the Real Estate Bar Association of Massachusetts at the Four Points Sheraton in Norwood, Massachusetts. My Register of Deeds colleague Mary Olberding (Hampshire County) and I formed a two-person panel for a breakout session on the Massachusetts Deeds Indexing Standards.

Two of the topics that dominated our discussion were acknowledgements and addresses.

Here is what we said about acknowledgements:

The Deed Indexing Standards contain a list of documents that must be acknowledged before being recorded. If a document is not on that list, it does not need to be acknowledged to be recorded.
The minimum information needed to make an acknowledgement sufficient for recording is the signature of the notary; the printed name of the notary; the expiration date of the notary’s commission; and some language that reflects that the document has been acknowledged.
Most registries will reject a document that lacks the written name of the person whose acknowledgement has been taken in the acknowledgement clause.

Most registries do not require the notary stamp to be affixed in order to record a document. (But since the notary statute requires a notary to affix his stamp when taking an acknowledgement, the notary should comply with the statute and always use the stamp).  

On a document that has multiple grantors, it is sufficient if the signature of just one grantor has been acknowledged. However, on a declaration of homestead executed by two people, both signatures must be acknowledged for the document to be recorded.

For out-of-state and out-of-country acknowledgements, registries will defer to the person recording the document to determine the adequacy of the acknowledgement. Because the law of the place where the acknowledgement is taken controls the adequacy of the acknowledgement, registries will assume compliance with the appropriate law and record the document.

Regarding out-of-state or out-of country acknowledgements, these standards use the terms “notary public” and “justice of the peace” as generic references to any public official authorized to take an acknowledgement in that jurisdiction. For example, a document acknowledged in Connecticut by a “commissioner” could be recorded in Massachusetts.

Here is what we said about addresses:

A deed must contain two addresses: the mailing address of the grantee and the address of the property being conveyed by the deed. The grantee mailing address is so the municipal tax collector will know where to send the property tax bill. The property address is so the municipal assessor can identify the property to update ownership information in assessing records.

In many cases, a deed presented for recording fails to state that property address. When confronted with this omission, the customer presenting the document for recording will hurriedly write an address in the margin of the deed. The address so written is often wrong. However, this is the address entered by the registry of deeds in the searchable index. While those in the real estate law business understand that an incorrect address does not negate the property transfer, most homeowners think it does and will become very agitated when they discover the discrepancy. To avoid an expensive fix, please make an extra effort to ensure the correct property address is clearly stated on a new deed before it reaches the registry of deeds.

Remember that most liens are indexed only by the debtor’s name, not by any property address or town. Consequently, trying to narrow a search by limiting the results to a particular city or town will exclude things like attachments and federal tax liens that are indexed with a town code of “none.”

While searching by property address can be a useful starting point, it can also be unreliable. Most registries of deeds did not consistently enter property addresses in the index until the late 1990s. Also, the registry will index an address however it appears on the document presented for recording. While a post office address may be 3-5 Main Street, one-third of the documents recorded will say 3 Main Street; another third will say 5 Main Street; and the remainder will say 3-5 Main Street. Similarly, a street with a numeric name – like 3rd Avenue or Third Avenue – will be entered in the index in whatever way it appears in the document being recorded.

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