Massachusetts Land Use Monitor

Massachusetts Land Use Monitor

Real-Time News & Commentary on Massachusetts Land Use & Real Estate Law

Category Archives: Title

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The Beach is This Way–And It’s My Registered Land

Posted in Easements, Registered Land, Title, Waterfront Property
A Massachusetts appellate court has ruled for the first time that new land which accretes to registered waterfront land is treated as registered land automatically, without the registered landowner filing additional proceedings. In Brown v. Kalicki, decided earlier this week, neighbors sought to establish an easement by prescription to use for recreational purposes a beach… Continue Reading

SJC Removes Another Arrow From The Foreclosure Defense Quiver

Posted in Foreclosure, Title
In its recent decision (pdf) in Abate v. Fremont Investment & Loan, the Supreme Judicial Court (SJC) affirmed a Land Court judgment dismissing a foreclosed borrower’s “try title” action.  “Try title” is a nineteenth century cause of action that allows an owner of land to force someone with an adverse claim to the land to either bring an action and prove his “better title” or forever hold his peace. … Continue Reading

Period Of Public Ownership Doesn’t Stop Adverse Possession Clock

Posted in Miscellaneous, Title
The Appeals Court’s recent decision in 1148 Daviol Street LLC v. Mechanic’s Mill One LLC will be of interest to adverse possession buffs. The issue on appeal was whether the plaintiff’s adverse possession claim started running during a 14-year period when the defendant’s property was owned by the City of Fall River.  The defendant argued that the claim could not have commenced during… Continue Reading

Further Foreclosure Fallout

Posted in Foreclosure, Title
In its decision earlier this year in U.S. Bank Natl. Assn. v. Schumacher (pdf), the Supreme Judicial Court addressed the impact of a failure to comply with requirements for providing notice of the mortgagor’s right to cure a default pursuant to M.G.L. c.  244, § 35A (our post on Schumacher is here).  The recent Appeals Court case of Haskins v. Deutsche Bank… Continue Reading

Recorded Deed With Phony Acknowledgement Is Ineffective

Posted in Miscellaneous, Title
In a case of first impression, the Appeals Court ruled last week in Allen v. Allen that a recorded deed with an acknowledgement falsely stating that the grantor had personally appeared before the notary public was unenforceable against a family member with a competing, subsequently recorded deed.  Allen pitted the plaintiff sister, Deborah, against her defendant brother, Harold Jr.  In July, 2001, the siblings’… Continue Reading

Some Old Land Use Restrictions Don’t Die, Or Even Fade Away

Posted in Restrictive Covenants, Subdivision Control, Title
In its recent decision in Samuelson v. Planning Bd. of Orleans, the Appeals Court affirmed and expanded on its 2011 decision in Killorin v. Zoning Bd. of Appeals of Andover, which confined the reach of M.G.L. c. 184, § 23. That statute generally limits conditions or restrictions on the use of land to a term of 30 years. Thus,… Continue Reading

Known Monuments Decide Boundary Dispute

Posted in Miscellaneous, Title
In its recent decision in Bernier v. Fredette, the Appeals Court affirmed a Land Court ruling concerning the importance of monuments in deed descriptions.  In real estate parlance, a monument is a fixed object used by surveyors to establish land boundaries.  While it doesn’t break new ground, this decision provides a good illustration of the… Continue Reading

Recent Rulings on More Foreclosure Foibles

Posted in Foreclosure, Miscellaneous, Title
In the last few weeks the Supreme Judicial Court (SJC) decided two more cases dealing with the effects of botched foreclosure sales.  The more important decision is U.S. Bank National Association v. Schumacher (pdf).  Schumacher arises from M.G.L. c. 244, §35A, which the Legislature enacted in 2007 in response to the foreclosure crisis.  This statute requires foreclosing banks to notify… Continue Reading

Spring Training for Real Estate Lawyers

Posted in Foreclosure, Title
Educational opportunities abound this spring!  Next Tuesday, April 2, 2013, at the Massachusetts Continuing Legal Education (MCLE) headquarters in Downtown Crossing, my current Rackemann colleague and fellow MLUM contributor Gordie Orloff, and my former Rackemann colleague, Land Court Justice Robert B. Foster, will be among the panelists in a program entitled, “Resolving Common & Complex Title Issues.”  Among other topics, this program will cover how to spot and… Continue Reading

Breaking: NREIS Going Out Of Business

Posted in Miscellaneous, Title
Looks like its last closing will be its own.  We’ve just learned that National Real Estate Information Services, Inc. (NREIS), a Pennsylvania company that once provided “real estate settlement services” (i.e. real estate closings with little or no attorney involvement) is closing its doors.  NREIS is the defendant in a long-running lawsuit brought by the Real Estate Bar Association of… Continue Reading

SJC Requires Foreclosing Bank to Hold Both Mortgage and Note

Posted in Foreclosure, Title
Last Friday the Supreme Judicial Court (SJC) issued its anxiously-anticipated decision (pdf) in Eaton v. Fannie Mae.  The decision is written by Justice Margot Botsford. As foreshadowed in our previous posts here and here, Eaton resolves the debate among lower Massachusetts courts and federal judges over whether Massachusetts law requires a foreclosing mortgage holder to also hold the promissory note secured… Continue Reading

Hot Off The Presses – Eaton v. Fannie Mae

Posted in Foreclosure, Miscellaneous, Title
Here is the Supreme Judicial Court’s decision in Eaton v. Fannie Mae, released moments ago.  It appears to require a foreclosing mortgagee to either have physical possession of the underlying promissory note or be acting as the authorized agent of the noteholder.  Crucially for real estate practitioners, the decision applies only prospectively.  More to follow shortly.… Continue Reading

Breaking: SJC’s Eaton Decision Expected Today

Posted in Foreclosure, Title
Rumor has it that the Supreme Judicial Court will issue its long-awaited decision in the case of Eaton v. Fannie Mae later this morning.  One crucial issue presented is whether a foreclosing mortgagee must hold both the mortgage and the note.  For some background, see my colleague Gordie Orloff’s prior post here.  We will bring you this potentially explosive decision… Continue Reading

Land Registration System Takes Another Hit

Posted in Easements, Registered Land, Title
Theoretically, owners of registered land are entitled to rely on the information contained in their certificates of title.  To the chagrin of many, however, that is no longer the case.  In its decision this week in Williams Bros. Inc. of Marshfield v. Peck (pdf), the Appeals Court affirmed a Land Court ruling that an appurtenant easement is extinguished when the dominant and servient… Continue Reading

Appeals Court Affirms Ruling That Lost Note Invalidates Mortgage

Posted in Miscellaneous, Title
In its decision issued this morning in JPMorgan Chase & Co. v. Casarano (pdf), the Appeals Court affirmed a Land Court ruling that, because the promissory note secured by a certain second mortgage can’t be found, that mortgage is unenforceable and must be deemed discharged.  The defendant second mortgage holder argued that enough of the terms of the missing note could be… Continue Reading

SJC Rules That Trust Beneficiary Can’t Claim Protection Under Pre-2011 Homestead Statute

Posted in Legislation, Miscellaneous, Title
In this morning’s decision in Boyle v. Weiss (pdf), the Supreme Judicial Court (SJC) answered an important question certified to it by the U.S. Bankruptcy Court for the District of Massachusetts:  whether the beneficiary of a trust that holds title to residential property, where the beneficiary herself lives on the property (in this case, as a tenant of the trust), is entitled to protection under Massachusetts’… Continue Reading

Massachusetts Federal Court Requires Unity of Note and Mortgage Before Foreclosure

Posted in Foreclosure, Title
As discussed in previous posts (here, here and here), a hot topic in foreclosure law is whether a foreclosing mortgagee must also hold the promissory note secured by its mortgage.  The latest contribution to this area of the law is U.S. District Court Judge William G. Young’s decision in Culhane v. Aurora Loan Services of Nebraska, a 59-page… Continue Reading

More MERS Murkiness

Posted in Foreclosure, Title
In previous posts (here and here) we’ve discussed the question of whether ownership of the mortgage and the note must be unified in the same person.  Superior Court Judge Cornelius Moriarty has now weighed in, with his split decision on the defendants’ motion to dismiss in Mack v. Wells Fargo Bank, N.A., 29 Mass. L. Rptr. No. 1, 14… Continue Reading

Superior Court Weighs In on Need for Unified Ownership of Mortgage and Note

Posted in Foreclosure, Title
In the Superior Court case Adamson v. MERS, the plaintiff foreclosed-on borrower is challenging the foreclosure on several grounds.  The defendant mortgage lender and its loan servicer recently moved to dismiss the case, and in an interesting decision (pdf), Rackemann alum Judge Raymond Brassard allowed the motion to dismiss in part.  Most interestingly, Judge Brassard addressed the plaintiff’s claim that the… Continue Reading

Don’t Forget To Record The Mortgage!

Posted in Miscellaneous, Title
In Solans v. McMenimen (pdf), the Appeals Court reversed a lower court decision and ruled that an attachment against a person’s “right, title and interest” in real estate attaches all property then owned by that person, including property owned under an unrecorded deed.  More significantly, the court ruled that such an attachment takes priority over a prior, unrecorded mortgage. In this case, the… Continue Reading

SJC Affirms Dismissal of Bevilacqua Case

Posted in Foreclosure, Title
Today the Supreme Judicial Court issued its decision in Bevilacqua v. Rodriguez (pdf).  We have discussed this case in prior posts (see comments here and here).  The decision was authored by Justice Spina and, in our view, demonstrates a good grasp of the legal principles at issue.  The SJC affirmed the Land Court’s dismissal of an “action to… Continue Reading