Wednesday, June 26, 2019

Executing a Document As Power of Attorney

A property owner who is unable to attend a closing may execute a Power of Attorney by which they grant the "attorney" the authority to execute the deed and other documents on their behalf. This is fairly common but there is still some confusion about the wording of documents executed in this manner. For this illustration, I'll refer to the property owner who has granted the power to someone else as the "principal" while the person to whom the power is granted will be called "the attorney."

In the Granting section of the deed, it would normally state, I, Principal, grant to buyer . . . When the document is to be executed by the Attorney rather than the Principal, this part of the document STILL SAYS "PRINCIPAL." The name of the Attorney is not inserted here in any way.

In the signature section of the deed, the Attorney signs the Principal's name, then immediately underneath the Principal's signature, the Attorney writes "By [name of attorney], his Attorney in Fact." If you want to do a really good job, include "Under a Power of Attorney recorded with the Middlesex North Registry of Deeds in Book 5555, Page 222."

Finally, in the acknowledgement clause, it should read as follows:

Then personally appeared Attorney and acknowledged the foregoing instrument to be the free act and deed of Principal.
Often an affidavit stating that the POA has not been revoked or suspended will be recorded, as well.

 See the Massachusetts Land Court's Registered Land Guideline 15 for more information on this.

Friday, June 14, 2019

Record Book Technology

An essential element of the land records system in Massachusetts is that documents presented for recording are duplicated in the official records. The technology used to do this and to display the resulting images has changed through the years.

As we continue planning our move to the new Lowell Judicial Center - now scheduled for the spring of 2020 - we're re-inventorying our holdings to ensure there is sufficient storage space since all existing records will come with us to the new location.

Middlesex North record book 1 was created in 1855 when this office first opened. From then until 1924, copies of the original records were made by registry clerks using pen and ink. Through this 69 year period, 702 books were created, each with 600 pages of content.

In 1924, the registry used type writers to make copies. Registry clerks would retype recorded documents on both sides of the pages.. This technology was used for 25 years and 425 books were produced in this manner.

1948 brought microfilm to the registry of deeds. Not only was microfilm used as a part of disaster recovery planning, it also was an integral part of record book creation. Original documents were filmed and when the film was sent out to be developed, the company processing the film also printed paper copies of each frame on the front and back of sheets that were then bound into record books. Prints from microfilm were used for record book production for 46 years, from 1948 to 1995. 2,977 books were produced in this way.

Although the registry continued microfilming documents (which is still done today), the pages of record books began being printed from scanned document images in 1995. This allowed the registry to produce record books in-house. This technology was only used for six years although 4,932 books were created by this method.

The last paper record book produced by the registry was created in 2001. From that year onward, the registry relied on electronic images of documents for the official record with microfilm back up. In the 18 years since paper book production ceased, 20,240 "virtual books" have been created. (The registry has retained the historic book and page numbering system but that only serves as a document identification number rather than a physical location).

Not only has the technology used to produce the document images for the official records changed, so has the containers (i.e., books) used to store and share those images. From 1855 until 1980, books had heavy cardboard covers wrapped in tan fabric with leather corners. The pages were sewn into the covers which were 10.5 inches wide by 15 inches high and usually about 3 inches thick.

In 1981, the registry switched to heavy metal covers which were dark green in color and slightly larger than the tan books (12 inches by 15 inches), but these were only used for one year. Later in 1981, the registry adopted binders of heavy red plastic with the same larger dimensions. There were used until 1984. Both the green and the red books used a "post and hole" binding system similar to a three-ring binder only heavier and straighter.

In 1984, the registry made a radical change in its record books, shrinking the size from 12 by 15 inches to 9.5 by 12 inches. These books were white plastic and also used a post and hole binding system although all the hardware in these versions was plastic that snapped together. The book pages within the binding were of standard 8.5 inch by 11 inch size with printing on both sides. This book binding system was used until 2001 when the registry ceased making paper books altogether.

In addition to the above, there is a separate set of 244 books that include copies of all documents recorded prior to this registry's opening in 1855. Those documents were recorded in Cambridge and integrated with all the records in that registry. In 1855, clerks located and copied all of the documents previously recorded in Cambridge that depict land in the ten towns that made up the Middlesex North District.

These older records were placed in sets of books that were numbered in the traditional way but were also segregated by community. Hence, when looking for a document for land in Lowell from 1826, you would not only need to know the book and page number, you would also need to know that in 1855, that land was located in Lowell. Records that were clearly related to the northern district but which were not clearly in one of the towns were placed in another set of books labeled "Doubtful."

Here are the pre-1855 record book sets with the number of volumes in each:

  • Billerica - 21 books
  • Carlisle - 13 books
  • Chelmsford - 19 books
  • Doubtful - 16 books
  • Dracut - 16 books
  • Dunstable - 11 books
  • Lowell - 91 books
  • Tewksbury - 16 books
  • Tyngsborough - 7 books
  • Westford - 20 books
  • Wilmington - 14 books

Thursday, June 13, 2019

The Neighborhoods of Lowell

My article for the June 2019 edition of the Merrimack Valley Housing Review described the history and boundaries of the various neighborhoods that make up the city of Lowell. The MVHR is a joint publication of UMass Lowell and the Middlesex North Registry of Deeds, delivered electronically for free each month. To subscribe, email David Turcotte at UMass Lowell.

The Neighborhoods of Lowell

As the geographic center of the Middlesex North Registry of Deeds District and the fourth largest city in Massachusetts, Lowell is frequently the subject of articles written in this space. To better understand Lowell real estate news, it is helpful to know the city’s geography, particularly the identity and location of its neighborhoods.

Although the first English settlers arrived in this area in 1655, Lowell was not incorporated as a town until 1826. The region’s rivers – the Concord and the Merrimack - brought those settlers here and are central to understanding the city’s geography today.

The Merrimack River originates in the White Mountains and flows south until it crosses the Massachusetts border where it turns east and flows to the Atlantic Ocean. The Merrimack bisects Lowell from west to east. The Concord River originates in the marshes at Concord, Massachusetts, and then flows north until it joins the Merrimack. Within Lowell’s boundaries, the two rivers form the letter “T” and help form some neighborhood boundaries.

At its founding, Lowell was much smaller geographically than it is today. Through the nineteen and early twentieth centuries, the state legislature annexed portions of Chelmsford, Dracut and Tewksbury to Lowell. By 1907, the city reached its current 14.5 square mile size.

To understand the layout of Lowell’s neighborhoods, it is helpful to think of the city as the face of a clock. At the center is downtown which initially contained only the textile mills and company-owned housing for those who worked in the mills. However, many retail, commercial, financial and religious buildings were soon added. In the 1980s, as businesses left the city core, the upper floors of many downtown buildings were converted to housing units making downtown a residential neighborhood as well as the city’s central business district.

The entrepreneurs who conceived the great textile mills were immediately joined by Irish immigrants who did the back-breaking work of digging the canals and building the mills. The mill owners granted these immigrants an acre of land just to the west of downtown to use for housing. This neighborhood became known as The Acre. It has always been the entre point for Lowell’s newest residents and it lies at the 9 o’clock position on our imaginary clock.

To the south of downtown at the 6 o’clock position is a cluster of neighborhoods and sub-neighborhoods that formed another part of Lowell’s initial land grant. Known variously as Chapel Hill, Back Central, Sacred Heart, the Flats, the Bleachery, the Grove, Swede Village, Wigginville and South Lowell, this cluster is bordered to the east by the Concord River, the west by River Meadow Brook (and the Lowell Connector) and to the south by the Billerica line. Although it is now largely residential, there was once considerable heavy industry along the banks of the Concord River, some of it pre-dating the founding of Lowell.

Across the Merrimack and to the north of downtown at the 12 o’clock position lies Centralville which was annexed from Dracut in 1851 (with a small addition in 1874). The proximity of this neighborhood – initially called Central Village – to the mills on the south bank of the Merrimack made this an attractive place for worker housing once the bridge across the Merrimack was constructed on Bridge Street.

Also north of the Merrimack is Pawtucketville. It lies to the west of Centralville and at the 10 o’clock position from downtown. Pawtucketville, annexed from Dracut in 1874, was mostly farm and woodland although it now is predominantly single family housing.

To the west of downtown and the Acre, at the 8 o’clock position on our clock, is the Highlands, another of the city’s larger residential neighborhoods. Initially part of Chelmsford, much of what is now known as the “Lower Highlands” was part of the original 1826 Lowell grant. (Draw a line form UMass Lowell South Campus to Cross Point to get an idea of the original boundary). The rest of the Highlands including Middlesex Village was annexed from Chelmsford in 1874.

Finally, the Belvidere neighborhood lies east of downtown at the 3 o’clock position. Bounded by the Merrimack River to the north, the Concord River to the west, Billerica to the south and Tewksbury to the east, Belvidere joined Lowell in a succession of annexations in 1834, 1874, 1888 and 1906.

From its founding until the 1960s, most everyone in Lowell may have worked in downtown, but residence, retail, recreation and worship all took place within the same neighborhood making the city a series of independent villages. The infrastructure and patterns of these separate places remain in Lowell’s neighborhoods today. Analyzing contemporary real estate information is more valuable when viewed through this historical lens. 

Wednesday, June 12, 2019

Registry of Deeds Operations in 1912

I recently came across this article from the Lowell Sun of December 16, 1912. It describes the operation of the Middlesex North Registry of Deeds. 

The Registry of Deeds and How the Deeds Are Handled and Protected After Being Received by Register Wm. C. Purtell

Few except those who have occasion to go to the registry of deeds in the local court house in Gorham street realize the many important changes that have been made in that office and the manner in which the work has been systematized during the past three years by Register William C. Purtell. Mr. Purtell has inaugurated many improvements that are greatly appreciated by those who frequent the office and the record hall. Careful study of the working methods of the office, the search for improved ways of simplifying the work of filing and recording deeds has enabled Mr. Purcell to make this registry the best in New England.

One of the features of the many changes is the refurbishing of the record hall and how for the first time in the history of the county, the records are encased in fireproof steel cases with sliding curtains which are closed and locked every afternoon prior to the closing of the office.

To start with, the large bracket lights along the side walls which were practically of no use and but of little ornament have been removed, giving much more room along the walls, the unsightly and clumsy hulking? Receptacles for the records have been discarded, the new steel cases have been placed against the walls of the record hall, thus leaving the center of the room open for tables, desks, and chairs for the work of conveyancing.

There are about a dozen of these fireproof cases in the hall containing about 1500 roller shelves for the larger books. The cases for the index books are at the Gorham street end of the record hall. Plain tables are located in the center of the room. The index books of the present year are kept on a turntable between the record hall and the registry office so that they can be consulted without leaving the hall. Records of attachments are kept on turntables connecting the record hall with a room on the other side of the corridor where they may be perused by employees of the registry office or by those using the record hall.

The previous system of keeping records was such that there was little room for books for the next wo years. Under the new system there is plenty of room for the next 25 years and there is no danger of the records being destroyed by fire.

The happy events afford better protection to the records, better service for those doing business there, better lighting and ventilation and ample room for all the records that will accumulate for a quarter of a century.

The working of the office of the registry of deeds is so systematized at the present time that it is almost impossible for an error to get into the records for the record of the deed passed through so many channels and is examined by so many experienced clerks that if one clerk happened to make an error it would be quickly detected by another clerk.

Within 24 hours after a deed is brought into the registry office it is indexed, the indexing records being a very important part of the work of the office. The instrument is then written, after which it goes through the hands of comparers, taken back to the office and paged, then it is abstracted for the purpose of building the yearly index and again compared, receiving the very closest examination by experienced clerks.

Every name is classified in such a manner that a person looking for a record can find it very readily. Considerable difficulty is encountered by the clerks in the proper indexing of names of persons who have different ways of spelling their names. For instance, the name Nichols is spelled in 27 different ways on the record books. It is spelled Nichols, Nickles, Nickels, Nicklles, etc. and in such cases the clerk has to index each name in such a manner that there will be no confusion. The foreign names are also very confusing, for some of these people are apt to change the spelling of their names after being here for a few years.

Business at the registry of deeds has increased very rapidly in recent years. Prior to the establishment of the office in this city all of the records in the county were kept at the registry of deeds in Cambridge and up to about 15 years ago it was necessary to go to Cambridge to look up titles of properties in the southern district, but 15 years ago copies were made of all of the records in that district and installed in the registry in this city so that at the present time a person can look up every record dating back as for as 1639.

The enormity of business done during the recent years may be realized when I is taken into consideration that during the past three years 57 books, each containing 600 pages, have been compiled while from the hear 1855 to 1909 there were but 442 books of records, an average of about eight a year, which now the average is about 19 a year. There will be 30,000 entries in the 1912 index, work on which will be started immediately following the end of the present month.

Register Purtell by virtue of his office is also assistant recorder of the land court which court was inaugurated in 1898. The land registration has also increased very materially during recent years.
Mr. Purcell is to be congratulated for the manner in which the work is being carried on at the registry of deeds office at the present time, the systematizing and indexing of the records which made this possible being brought about by his careful study of the business and his untiring efforts to bring the local registry up to the high standard it has attained.

Tuesday, June 04, 2019

May recording statistics

Here are some statistics on the number of documents recorded during May:

Districtwide - May 2019 to May 2018

Deeds - There were 629 deeds recorded, a 1% decrease from the 638 in 2018;
Mortgages - There were 990 mortgages recorded, a 20% increase from 825 in 2018;
Foreclosure deeds - there were 2 foreclosure deeds recorded, an 88% decrease from 17 in 2018;
Orders of Notice - there were 28 orders of notice, a 17% increase from 24 in 2018;
Total Documents - there were 4831 documents recorded, a 1% increase from 4768 in 2018.

Districtwide - May 2019 to April 2019

Deeds - There were 629 deeds recorded, no change from 630 in April;
Mortgages - There were 990 mortgages recorded, a 20% increase from 824 in April;
Foreclosure deeds - there were 2 foreclosure deeds recorded, a 67% decrease from 6 in April;
Orders of Notice - there were 28 orders of notice, a 56% increase from 18 in April;
Total Documents - there were 4831 documents recorded, a 4% increase from 4653 in April.

Thursday, May 30, 2019

Homestead Protection of Sale Proceeds

A lawyer called last week to discuss how provision of the Massachusetts homestead law might be interpreted by the bankruptcy court. She was referring to the following section which was created by chapter 395 of the Acts of 2010. That’s the major homestead revision from 2011 that created the automatic homestead, clarified the applicability of the law to property held in trust, and settled a number of other ambiguities about prior homestead law.

The new provision that caught me by surprise was this one:

Section 8. (a) If a home that is subject to an estate of homestead is sold, whether voluntarily or involuntarily, taken or damaged by fire or other casualty, then the proceeds received on account of any such sale, taking or damage shall be entitled to the protection of this chapter during the following periods:

(1) in the event of a sale, whether voluntary or involuntary, or a taking, for a period ending on the date on which the person benefited by the homestead either acquires another home the person intends to occupy as a principal residence or 1 year after the date on which the sale or taking occurred, whichever first occurs; and

(2) in the event of a fire or other casualty, for a period ending on: ( i ) the date upon which the reconstruction or repair to the home is completed or the date on which the person benefited by the homestead acquires another home the person intends to occupy as a principal residence; or (ii) 2 years after the date of the fire or other casualty, whichever first occurs. 

In other words, if you sell a house that is protected by a homestead, the cash you receive from the sale is protected from creditors by the same homestead for up to a year. The provisions for protecting the proceeds from an involuntary sale, a taking or a loss that’s compensated by insurance make sense to me – why should you be dispossessed by circumstances beyond your control? – extending the same protection to a voluntary sale is something I find harder to accept. Still, the language of the statute is fairly specific so its intent seems clear. Thus far, I have not heard of a case that has taken advantage of this provision.

Tuesday, May 28, 2019

Cursive Writing

Over the weekend I was at a civic event when someone in my group said, “It’s a shame that they don’t teach cursive writing in schools anymore.” I replied, “Why?” Not “why don’t they teach cursive writing” which we’ll accept as true even though I doubt it is, but “why would it be a shame if cursive writing was not taught?”
I confess to trying to be a bit provocative, but it was also intended as a serious question. One of my informal management rules is that if I ask someone why they are doing something, if the only thing they come up with is, “we’ve always done it this way,” then it may be time to reassess the practice being questioned.
I believe this is the case with cursive writing. The best argument in defense of the practice is that much of our accumulated knowledge is stored in cursive writing and so that knowledge might be withheld from someone who can’t read cursive. But that was once true for Latin, and few of us study Latin anymore. Some do, but these days it is a nice-to-have elective. I believe learning how to comprehend cursive writing will be like that, too, although that grossly overestimates the effort it takes to discern the meaning of cursive writing. In other words, if you can read printing (which is the common term for block lettering or non-cursive writing), it is not a great leap to be able to read cursive.
Given modern technology, there are some downsides to the continued use of cursive. Print, when produced on a computer of other device, is searchable and can be read by a machine whereas cursive cannot (as far as I know). These technological features of print are extremely valuable, but if you are not aware of them or you have never (knowingly) used them, you would be unaware of this utility. Not coincidently, the people most likely not to be aware of these newer technologies are the same people who have grown up with and are fully comfortable with cursive.
To be clear, I am not an enemy of cursive. I use it on a daily basis. When I take notes in cursive, I retain the material much better than when I take notes on a keyboard. But that’s only because I’m used to doing it that way. Someone who grew up with a keyboard might feel exactly the opposite.
So don’t give up on cursive, but on the other hand, don’t force it upon future generations of students, especially if it comes at the expense of another subject that might be more valuable such as math, science, history, literature, art, music, or just about anything else.   

Friday, May 24, 2019

Recording copies instead of originals

A longstanding rule at the registry of deeds is that only original documents (or a copy certified by another registry) may be recorded. This rule is codified by Massachusetts Deed Indexing Standard 8-4 and is strictly enforced at registries throughout the Commonwealth. However, at a time when the majority of documents are recorded electronically and when some documents never even exist in paper form, it may be time to reconsider this rule. 

The proper starting point for reconsidering a longtime standard is to ask what purpose is served by the rule When a person presents a document for recording, that person having custody of the original provides some authentication of the document. If the item presented is clearly a copy, it invites the question of what happened to the original. While there would undoubtedly be some innocent reasons for the original not being present, there could be some not-so-innocent reasons too. While it is also true that an original is better evidence in adjudicating a claim of forgery, the registry keeps only a copy and returns the original and so would not have possession of it when a claim of forgery arose. 

However, the authentication function of the original was far greater when documents were created with typewriters and ink pens. Both left discernable impressions in the surface of both sides of the page which made a document’s identify as the original version easier to determine. But in the age of laser printers and sophisticated copiers, decided whether a document is an original or a copy is more difficult to do.

The excellent output of today’s copiers has undercut another reason to require the original document for recording. In the age of carbon copies or even in the infancy of copier technology, copies tended to be poor and difficult to read. Having possession of the original document permitted the registry to create the best copy for the official records. Today, the distinction in legibility between the original and the copy has largely disappeared which takes away another reason for refusing to record a copy.

Finally, there is an argument to be made that the Uniform Electronic Transaction Act authorizes a copy of a document to be recorded. That law states that the electronic version of a document fulfills any law that requires a document to be in writing. Put another way, an electronic document is just as good as an original paper document. If you think of a photocopy as the electronic version of an original document that is then printed on paper, there is little reason to refuse to record such a document.

As technology and business practices continue to evolve and all-electronic documents become commonplace, our entire concept of “original” will need to change. In an electronic world where one copy of an electronic document is indistinguishable from another, there is no original document. The issue really is the intent of the person “signing” the document. Whether it is a traditional “wet” signature or some mark or symbol made on an electronic tablet, the relevant question is did the person intend that mark to constitute his signature. The answer to that question will depend on all the circumstances surrounding the execution of the document, not whether the document contains an original cursive signature made in ink on paper.