Mortgagee Assumes Mortgage

Can a mortgagee take a deed from the mortgagor for the mortgaged property and avoid paying the deeds excise tax by “assuming the mortgage?”

This came up on the deed recorded in Book 30634, Page 120, which was captioned “Deed in lieu of foreclosure.” A number of members of a family (all mortgagors) conveyed the property at 75 Smith Street to the mortgagee “in consideration of forgiveness of debt in the amount of $641,694.” There was no additional consideration.

Based on the rule that the amount of the debt forgiven is deemed monetary consideration and taxed accordingly, we assessed a tax due of $2,927.52.”

The person recording the document objected to that, stating that the mortgagee was in fact “assuming the mortgage.”

When property is conveyed and an existing mortgage is assumed by the grantee, the amount of the indebtedness is not taxable.

I don’t believe that the mortgagee can “assume” a mortgage that it holds. I think the interest conveyed with the mortgage merges with the equity of redemption when the property is conveyed to the mortgagee which would therefore extinguish the mortgage. (Whether it extinguished the debt is a question of contract between the parties).

Based on this, I assessed the tax stamp and suggested to the person recording it to seek an abatement from DOR. I’ve heard nothing more about this situation, however, I have seen other cases where the mortgagee takes a deed to the property and “assumes” the mortgage but I’m not sure whether this is permissible.

Registry of Deeds Holiday Schedule

The Middlesex North Registry of Deeds will be closed on Tuesday, December 25, 2018, for Christmas and on Tuesday, January 1, 2019, for New Years Day.

The registry will be open for its normal hours (8:30am to 4:15pm) on Monday, December 25, 2018 (Christmas Eve) and on Monday, December 31, 2018 (New Years Eve).

Here are the holidays for the rest of 2019. The registry will be closed on the holidays, but will be open for normal hours the day before or after.

• Martin Luther King Jr Day - Monday, January 21, 2019
• Washington's Birthday - Monday, February 18, 2019
• Patriots' Day - Monday, April 15, 2019
• Memorial Day - Monday, May 27, 2019
• Independence Day - Thursday, July 4, 2019
•  Labor Day - Monday, September 2, 2019
• Columbus Day - Monday, October 14, 2019
• Veterans' Day - Monday, November 11, 2019
• Thanksgiving - Thursday, November 28, 2019
• Christmas - Wednesday, December 25, 2019

 In the event of a serious snowstorm, the registry might also close early or not open at all. Because the registry is within a courthouse, whether we close or not is a decision for the Trial Court. If there is a significant snowstorm overnight, check the Trial Court website.

Mickey Roache: 1936-2018

Francis "Mickey" Roache, the Suffolk County Register of Deeds from 2002 until 2016, died Monday at age 82. A Boston native, Roache is best known for his service as Police Commissioner of Boston from 1985 to 1993. After a career as a Boston Police Officer, Roache ran unsuccessfully for mayor in 1993 but was elected to the Boston City Council in 1995. He served as a councilor until 2002 when he was elected Register of Deeds where he succeeded Paul Tierney who had died in office. Roache retired from the registry in 2016 and was succeeded by Stephen Murphy. After graduating from high school, Roache served several years in the United States Marine Corps.

His accomplishments as Police Commissioner and as an at-large City Councilor were the subject of a recent story in the Boston Globe. 

House History Research Seminar

This coming Thursday, December 20, 2018, at 12:30 pm at the Tewksbury Public Library, 300 Chandler Street, Tewksbury, I will give a talk on how to research the history of your home using Registry of Deeds records. The talk is free and will last an hour with plenty of time for questions.

The Middlesex North Registry of Deeds is the depository of all records related to the ownership of land in Billerica, Carlisle, Chelmsford, Dracut, Dunstable, Lowell, Tewksbury, Tyngsborough, Westford and Wilmington from the first document recorded in 1629 up until this moment. All 14 million pages of those records have been scanned and are freely available for viewing, downloading and printing on the registry's website, www.lowelldeeds.com.  

At this talk, I will explain how registry of deeds records are organized and will provide helpful hints on how to use them most effectively.

More revenue needed for CPA

The editorial in the December 1, 2018 Boston Globe, "CPA has grown; state funding should grow with it" advocated an increase in the state fund used to provide money to municipalities under the Community Preservation Act.

The CPA was enacted back in 2000. It provided a mechanism for cities and towns to assist in preserving open space, historic preservation, affordable housing, and recreation. Residents in towns enacting the CPA had to agree by referendum vote to impose a surcharge on their own property taxes. The amount raised through that mechanism was then matched by money from the state. The pool of money the state used to make these payments was funded by a $20 per document surcharge on documents recorded at the registry of deeds.

Between the booming real estate market of the early 2000s (this registry recorded 144,000 documents in 2003 and averages about 60,000 over the past few years) and the scarcity of communities enacting the CPA at the beginning, meant that the state match was dollar for dollar. That has changed and the matching amount now may be as low as 20% of what is raised from town residents.

There have been several efforts made to increase the flow of money into the state matching fund. Most recently, legislation backed by Governor Baker would have raised the registry of deeds surcharge from $20 to $50 per document. Despite the Governor's support, this bill did not survive the last legislative session.

The Globe editorial urges lawmakers to increase CPA funding but suggests a surcharge on recorded documents might not be the way to do that since the flow of money is tied to the health of the real estate market. When times are good, the money flows into the fund; when times are tough, the money dries up.  After seeing how our volume of recorded documents rises and falls pretty dramatically, I agree with this approach.

Registers of Deeds for 2019

There are 21 registries of deeds in Massachusetts. Every six years, the people of the respective registry district elect a register of deeds to oversee the operation of the office. All 21 registry offices were on the ballot in the November 6, 2018 state election. Four new registers were elected and 17 existing office-holders were re-elected.

Here's an alphabetical list of the 21 registries; the name of the person who will be sworn in as register on January 2, 2019; and the year in which that person was first elected to the position:

• Barnstable - John Meade - 1988
• Berkshire Middle - Patsy Harris - 2012
• Berkshire North - Maria Ziemba - 2018
• Berkshire South - Michelle Laramee-Jenny - 2018
• Bristol North - Barry Amaral - 2008
• Bristol South - Frederick Kalisz - 2017
• Dukes - Paulo DeOliveira - 2016
• Essex North - Paul Iannuccillo - 2012
• Essex South - John O'Brien - 1976
• Fall River - B J McDonald - 1994
• Franklin - Scott Cote - 2012
• Hampden - Cheryl Coakley-Rivera - 2018
• Hampshire - Mary Olberding - 2012
• Middlesex North - Richard Howe - 1994
• Middlesex South - Maria Curtatone - 2012
• Nantucket - Jennifer Ferreira - 2006
• Norfolk - William O'Donnell - 2004
• Plymouth - John Buckley - 2000
• Suffolk - Stephen Murphy - 2016
• Worcester - Kathryn Toomey - 2018
• Worcester North - Kathleen Daigneault - 2006

 In Berkshire North, Frances Brooks, who was first elected in 2004, did not seek re-election.

In Berkshire South, Wanda Beckwith, who was first elected in 2006, did not seek re-election.

In Worcester, Anthony Vigliotti, who was first elected in 1972, did not seek re-election.

In Hampden, Donald Ashe, was was first elected in 1982, passed away in June 2018.