Rain

Since we have become so very very familiar with rain this summer I figured a list of "rain facts" would keep us right in the same summer mood we're now accustom to.




1. Rain drops are really NOT shaped like tear drops…they look more like hamburg buns with a flat bottom.
2. Larger raindrops can split into many small ones as they fall to the ground.
3. Raindrops hit the ground at a speed of approximately two meters per second.
4. Rain has a PH level of about 5.6.
5. In Botswana the word “pula” means both rain and money reflecting the importance of rain to the economy of the region.
6. The pleasant scent of summer rain comes from a chemical called petrichor which is found in plants and released into the atmosphere during rain storms.
7. The city of Seattle has taken a bad rap when it comes to rain. Seattle averages 37.1 inches of rain a year, less than New York City which averages 46.2 inches.
8. The rainiest city in the United States is Ketchikan, Alaska which averages 200 inches a year.
9. The highest recorded rainfall in one year was in 1861 in Cherrapunji, India when 904.9 inches fell.

10. And Finally if we all click our heals three times and say “I want it to go away, I want it to go away, I want it to go away".... the rain may stop and the sun just may come out.

Bankruptcy decision invalidates mortgage

A recent decision by the United States Bankruptcy Court for Massachusetts dealt with the sufficiency of the acknowledgement of a mortgage. The case is In re Giroux, a May of 2009 decision and the alleged defect occured when the notary public failed to insert the borrower’s name into the notary clause (”Then personally appeared ______________ and acknowledged the foregoing to be his free act and deed”). The court held that even though the notary signed the notary clause which was located on the same page as the borrower’s signature, the absence of the borrower’s name in the middle of the clause invalidated the acknowledgement. Consequently, according to the court, the registry of deeds should not have recorded the document. Since the mortgage was therefore void, the lender was left as an unsecured creditor of the bankruptcy estate.

Ironically, the court cited the Massachusetts Deed Indexing Standards as support for its holding. The intent of the Indexing Standards was to be fairly liberal about what constitutes a sufficient acknowledgement, so the holding in this decision was certainly unexpected. Over the coming days, we’ll read the decision more closely, as well as the cases and statutes cited, to see whether it will alter our own standards for accepting documents for recording.

Electronic recording statistics

I’ve compiled some statistics on our volume of electronic recordings. Since we activated the system in June 2005, we have recorded more than 13,000 documents that were submitted to us electronically. The average per year continues to increase: In 2005 (June thru December) we averaged 151 per month; in 2006 the average rose only to 156; in 2007 the average reached 291; in 2008 it grew to 330; and for the first four months of 2009 it has exploded to an average of 588 documents per month. April 2009 saw the highest number of electronic recordings (781) followed by March 2009 (679).

Correcting "National Lumber"

On numerous occasions I’ve written about National Lumber v Lombardi, 64 Mass App 490 (2005) a case in which the Massachusetts Appeals Court held that a document was deemed to be on record when it was “delivered” to the registry of deeds, not when it was indexed and scanned by the registry. The members of the Massachusetts Registers of Deeds Association have been concerned that this holding could alter the longstanding practice that a document is “recorded” when it is entered into the registry’s computer system and not before.

Two identical bills, House #1527 and Senate #1826, are now pending in the state legislature. Here’s the language they both share:

SECTION 1. Section 14 of Chapter 36 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the last sentence and inserting the following:

“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”

Hopefully this amendment will be enacted during this legislative session. I know if no case that has invoked the holding of National Lumber, but I suspect that is only a matter of time.

Electronic indexes for sale

At the Middlesex North Registry of Deeds, the Grantor and Grantee Indexes from 1976 to the present are available in a single, searchable computer database that is fully available on the registry’s website (www.lowelldeeds.com). Although Indexes from 1629 to 1975 are not yet on the internet, they are available as “electronic index books” at the registry.

These “electronic index books” were created by scanning the original paper index books and saving the resulting images in the PDF format. We have retained the original date ranges of the indexes (for example, 1916-1925; 1926-1940) but within each date range, we have separated the pages of the index into separate files based on the first letter of the last name.

Because some of the letter files are more than 1000 pages long, we have created a sub-index at the beginning of each file. This sub-index is a spreadsheet that contains the first name on each page of that letter file along with the corresponding page number. By finding the name closest to the one of interest to you and using the “go to” function in the PDF program, you can jump to the area where your name is located. Once there, you can use the forward and back arrow buttons to flip through pages just as you would with the printed/bound index book.

We have now established a pilot program to test the market for selling these indexes to our customers. We have purchased a number of 16 gigabyte flash drives and have copied the entire 1629-1975 Grantor and Grantee Indexes onto each. Customers may purchase one of these flash drives by coming to the registry in person and paying $50 (we can only take checks payable to “Commonwealth of Massachusetts” as payment). Once you have purchased one of our flash drives, you may copy the data to one or more computers and use it however you wish. It is not our intent to make a profit on these transactions: the $50 just covers the cost of purchasing the blank flash drives. We haven’t given up on getting all this data onto our website; it’s just taking much longer than we had hoped. These individualized copies of the index should serve as a useful bridge to the time when a web-based solution is available.

Wrapping up e-recording demos

The last of the electronic recording demonstrations for registry personnel was today at the Plymouth County Registry of Deeds. Monday’s was in Springfield and yesterday’s was in Lowell. Representatives of 15 of the state’s 21 registries attended at least one of the events and a few attended more than one. Besides being spread around the state geographically (Plymouth, Springfield, Lowell), each of the three sites uses a different electronic recording module. In Lowell, it’s the ACS system; Springfield has Browntech; and Plymouth uses the Simplifile system. It was especially valuable to hear and see how each of these three offices handles electronic recordings. Hopefully this weeklong orientation session will speed the rollout of e-recording to other registries.

E-Recording in Hampden County

Yesterday I travelled to Springfield for the first of three regional meetings of the state’s registers of deeds on the topic of electronic recording. The second meeting will be held here in Lowell tomorrow and the third and final meeting will be Thursday in Plymouth. Besides being spread around the state, these three registries are the only ones in the Commonwealth that are currently using electronic recording. These meetings have a number of objectives. One is to allow personnel from other registries to see electronic recording in action and to discuss it’s impact on registry operations with those who are actually doing it. Another objective is to work on a standard contract between the registry and the end-user of the electronic recording system (i.e., the lawyer submitting the documents) that clearly lays out the duties and responsibilities of the parties. The meeting in Hampden County was informative and well-done. It was attended by representatives from the following registries: Berkshire Middle, Berkshire South, Essex North, Franklin, Hampden, Middlesex North and Norfolk. Check back for updates on Thursday and Friday on the upcoming meetings.

Watermarks on documents

An early draft of the Formatting Standards contained a prohibition on recording documents that contained a “watermark” but the final version that is contained in the current Deed Indexing Standards is silent on the watermark issue. That is unfortunate, because we have started to receive death certificates that have the word “copy” embedded throughout as a watermark. Presumably this is someone in government’s effort to prevent the copying of these documents so that people will be forced to purchase multiple copies of the document rather than relying on photocopies. It couldn’t be to prevent attempts to pass off photocopies as originals since all original death certificates always bear the raised seal of the issuing office, a physical change to the document that certainly can’t be reproduced by a copying machine. While I don’t want to question the motives of whomever designed this anti-copying system, I wll say that they have really messed up the ability of the registry of deeds to include such documents in our records. As you can see from this document, the watermark that was nearly invisible on the original has completely obscurred all meaningful information on the scanned copy in the official records of the registry of deeds - all but the social security number of the deceased which I have manually redacted with the blue box. I expect to raise this issue of unreproduceable death certificates at future meetings of the registers of deeds association so that we can take collective action to preserve the integrity of our land records.

Same sex marriage and home ownership

A lawyer recently asked about the proper wording on a deed that was conveying a house to a same sex married couple who wanted to hold as tenants by the entirety. According to a memo from the Land Court dated May 6, 2004, the proper form would be “A and B, as tenants by the entirety” without any mention of “husband and wife” or “a married couple.” There’s no problem if that language is included, but it is not required and its absence is of no consequence. With same sex marriage having been legal in Massachusetts since early 2004, property ownership by same sex spouses is becoming more and more common.

National Lumber amendment

I have long been amazed by the nonchalance the Bar displays with regard to the “National Lumber” decision by the Massachusetts Appeals Court. To refresh your recollection, that case held that a document’s priority relative to other documents is established when it is physically received by the registry of deeds; not by when it is actually recorded. Let’s say you represent the buyer of a parcel of real estate at a closing scheduled at the registry at 10 a.m. tomorrow. The closing goes smoothly, you do your rundown, record and disburse the funds by 10:15 a.m. At 11:00 a.m., a full 45 minutes after you have finished at the registry, we record a new mortgage on that same property, granted by the person who just sold to your client. “Not a problem,” you conclude, since this new mortgage went on record after the deed into your client. But what if that new mortgage arrived by Fedex and we had signed for that package at 9:55 a.m. Fedex being an efficient company, it has precise records establishing when their delivery person relinquished custody of the package containing that document to the registry. When you apply the holding of National Lumber to these facts, you’re out of luck – you’ve missed a mortgage that has priority over your deed. Call your carrier.

The state’s registers of deeds recognize the havoc that could result from the holding of this case so we’ve proposed legislation that would rectify this problem. A bill was recently filed but has not yet received a number (when it does, I’ll make another post). Here’s the language:

“No deed or instrument shall be considered to have been received by the register of left for record until said deed or instrument has been approved for recording by the register and an instrument number or document number of book and page has been assigned to said deed or instrument.”

Old indexes: get your copies now

Those of you who come to the registry and use our public search computers are familiar with our electronic version of the pre-1976 indexes. Everything back to 1629, both Grantor and Grantee, are available as “electronic books” in PDF format. For the past three years, we have tried repeatedly to make these indexes available on their website. Given their electronic size, that’s been a challenge. We were making real progress when the current budget crisis struck, forcing us to cut funds that had been allocated for the completion of that project and prompting us to alter our strategy.

Recently, registry employees began a massive back indexing project. We have began with documents recorded in 1975 and are indexing them directly into our computer system without regard to the manner in which they were previously indexed. This will ensure that the data in our searchable database is consistent and in compliance with the latest deed indexing standards. Despite our best efforts, this will be a lengthy project. In the meantime, we have decided to once again make the indexes in PDF format available to you in electronic form for your own use.

Formerly, we asked you to provide us with a set of CDs upon which we would copy the various indexes. This required more than a dozen CDs, making it very difficult for us to physically copy that many disks for the number of customers who wanted the data. But as is often the case, technology may have come to our rescue. The combined Grantor and Grantee indexes from 1629 to 1976 total 12.5 gigabytes of storage space. Today, you can purchase a “thumb drive” also known as a “flash drive” of 16 gigabyte capacity for about $40 (at Walmart, at least). So, if you wish to obtain a copy of our indexes, next time you come to the registry, bring a blank 16GB flash drive with you and we’ll make you a copy that you can then add to any and all of your computers.

Launch of indexing project approaches

Today we introduced our new indexing project to a group of registry employees. Commencing next week, we will begin indexing documents recorded prior to 1976 in reverse chronological order. While most of today’s discussion dealt with technical matters related to our computers and software, some substantive items were discussed. Here are four of them:

Index names and addresses in accordance with the current Deed Indexing Standards

“Thirty years ago, documents looked a lot different than they do now. For example, many mortgages look just like deeds. Look for either “quitclaim covenants” (makes it a deed) or “mortgage covenants” (makes it a mortgage).”

“Try to avoid indexing things as MULTIPLES even though you will see quite a few of them. Try to decide which is the dominant document and use that for the document type. For instance, a Deed might also contain a Vote – call it a Deed – or a Mortgage might also contain an Assignment – call that a Mortgage but be sure to add to the index the name of the party to whom it is being assigned to the index.”

“If the property address on a deed is not clearly identified (and in older deeds it usually isn’t), just leave that field blank. Do not use a street name from the description in the STREET field. ”

Watch for additional blog entries on this topic as the project progresses.

"How do I take someone's name off of my deed?"

A name is never physically removed from a deed. To "take someone's name off of a deed" means conveying that person's interest in the property back to you or to someone else.

If that person is still alive, this conveyance is done by recording a new deed (one that conveys the property from him to you or someone else). The filing fee for recording a new deed is $125. There is no blank form available to use in creating the new deed. We strongly recommend using an attorney to prepare the new deed.

The procedure is different if the person whose name is to be removed is deceased. In the case of married couples, most own real estate as "tenants by the entirety" which means there is a right of survivorship. When one spouse dies, his interest in the property is extinguished and the surviving spouse automatically becomes the sole owner of the property. There is no need to create a new deeds since nothing is being transferred. To show the change in ownership, however, a death certificate for the deceased spouse should be recorded at the registry of deeds. The filing fee for a death certificate is $75.

If the deceased co-owner was not a spouse, then an automatic transfer also occurs if the co-owners held the property as "joint tenants" - look at the deed by which you and the decedent became owners to determine if this is the case. If it says "joint tenants" you need only record a death certificate. If it says "tenants in common" however, there is no right of survivorship and the decedent's estate must be probated to convey ownership of his portion of the property to someone else.

"How do I put another name on my deed?"

"Put another name on my deed" means that you want to make someone else a a co-owner of your property. To do this, you must convey an interest in the property to that person. You do this by creating a new deed that conveys an interest in the property from you (the current owner) to you and the new co-owner. This new deed should then be recorded at the registry of deeds. The filing fee for a deed is $125.

If you are selling this interest in the property to the other person, you (the seller) must also pay an excise tax based on the sales price. The tax rate is $2.28 per $500 (although a sale for $100 or less is exempt from the tax).

The registry does not provide blank deed forms. Technically, you can prepare a new deed yourself, but we strongly advise you to hire an attorney to do this for you. There are many consequences to owning a property jointly with another, so besides preparing the deed, an attorney will also advise you and your options and their consequences.

To queue or not to queue

One of the assumptions about electronic recording that I’ve been operating under is that for the system to reach a mature, fully utilized state, we must first have an electronic queuing system that regulates the order of walk-in customers and electronically submitted documents. Now I’m not so sure if that’s necessary. In theory, the queue is a good idea. When a walk-in customer arrives at the registry, he first stops and a registration kiosk and enters his name and the number of documents he has to record after which he is assigned a sequential number representing his place in the queue. Incoming electronic recordings would automatically be assigned numbers in the same queue. Registry recording clerks would process the documents in the order presented by the queue. This would keep electronic recordings that arrived at busy times from being neglected in favor of human beings standing in line with documents to be recorded. While such a queue would prevent e-recordings from being forgotten, there are other ways to accomplish that same task that don’t carry the downside of the queue. What down side? What if a major national lender suddenly sends two dozen mortgages electronically. They would take up 24 places in the queue and all would have to be processed by the registry staff before any customer who subsequently arrived in person could be waited on. That’s not how it works now. Today, a customer with many documents goes to a single recording terminal and we begin entering his documents while the next customers go to other recording terminals without having to wait for the first customer to have all of his documents recording. A queuing system would prevent us from doing even that. What is required is a disciplined approach to processing electronic recordings that handles them quickly but with common sense.

Electronic Recording update

Last week, the Plymouth County Registry of Deeds began accepting deeds submitted electronically with excellent result, I’m told. Plymouth had launched electronic recording several months ago but had deferred taking deeds until now. Plymouth now joins Middlesex North as full-service electronic recording registries. Hampden County (Springfield) is also accepting documents filed electronically, but it’s my understanding that neither deeds nor mortgages are permitted as of yet. Other registries are inching closer to activating electronic recording systems. While the number of documents we receive electronically varies from day to day, throughout August we were routinely recording more than 20 electronic documents on many days which, with the very slow pace of overall recording activity, would represent more than 10% of our daily volume. As more registries turn on the system, I believe that our volume of e-recordings will rise substantially.

Electronic Recording update

Earlier today I spent some time with other Massachusetts registers and representatives of ACS, Browntech, Ingeo, LandData and Simplifile discussing electronic recording in the Commonwealth. The good news is that two registries besides Middlesex North have commended e-recording. Register John Buckley of Plymouth County reported that they have already recorded more than 800 documents and have found the system to work “very well.” Because Plymouth has long operated two satellite recording offices, their users were already comfortable doing rundowns that involved documents they never saw, so they were mentally ready to accept e-recording. The folks from the Hamden County Registry of Deeds (in Springfield) had a similar report. They’ve only done about 50 documents but described the process as “flawless” and have rejected only four documents, all because they were registered land. Overall, the folks in attendance seemed optimisitc that the widespread rollout of electronic recording might very well become a reality in Massachusetts during 2008.

E-Recording spreads

At a recent gathering of all of the state’s registers of deeds, we received updates on the state of electronic recording around the Commonwealth. As readers of this blog know, we have been recording documents electronically here in Lowell since June 2005 with more than 5000 documents finding their way into our records via this means. Now, three other registries have joined us: Plymouth began electronic recording back in late 2007. They are proceeding gradually, just accepting discharges from a few local customers right now. Hampden (in Springfield) has been working closely with a company called LandData and that registry is ready to launch its e-recording system. And Worcester is in final meetings with ACS and Simplifile to allow both of those companies to submit documents.

E-Recording progress

Earlier this week at the Fall Register of Deeds meeting, we discussed how to move forward with electronic recording. Right now, Lowell has been recording documents electronically for more than two years, having recorded 5000+ documents by that method. Now, some of the registries that still are within county government (and who therefore retain more technological independence) are moving forward in a tangible way and should start receiving documents electronically in the coming weeks. The registries that are within the Secretary of State’s office have been on hold, more or less, and the reason for that has not been entirely clear to me. Now, however, we have a plan for moving forward. We will document the electronic recording process and take it to you, the potential users. If you (and representatives of the title insurance industry) find it acceptable, we should be able to turn electronic recording on at all of the registries. It really won’t take off (i.e., be widely accepted by our users) until that happens because if you’re going to go to the effort to learn how to do electronic recording and set up your internal processes to handle it, you’ll want to do it universally, not at just a handful of registries. There’s no timetable yet but hopefully we’ll have something to share with you all by Thanksgiving.

E-Recording seminar aftermath

About 30 people attended the Simplifile electronic recording seminar this past Tuesday at the DoubleTree Hotel in Lowell. Simplifile’s president even flew in from the companies headquarters in Utah. The local rep, Paul Roth (a Burlington, MA attorney) first demonstrated the Simplifile customer interface. At their most basic level, all electronic recording software allows a user to transmit images of original documents along with data about the document that is entered by the customer to the registry for immediate recording. Paul took the presentation up to pressing the “send to the registry” button at which time I took over, showing how the registry processes incoming electronic recordings. In the questions that followed, the audience of experienced real estate lawyers seemed most interested in the “gap” that exists betwen the final rundown on the registry’s website and the time of recording. Everyone recognizes that this is typically only a few minutes, but it is something that must be addressed. Right now, it seems that most title insurance companies are perfectly willing to cover that gap although they don’t seem to be putting anything in writing so far. Although this meeting was hosted and arranged by Simplifile, I’ve already done another such meeting with eRX, another company that does e-recording with us and I will make myself available to any company or group that has an interest in discussing e-recording.