In many real estate cases, a thorough title search is often necessary to understand the nature of the interests held in the property in question. A title search will also help identify any encumbrances and/or interested parties that may affect the outcome of the pending matter.
But in some kinds of cases filed in the Land Court, not just any title examination will do. Depending on the nature of the case, parties may be required to select a pre-approved title examiner from a list maintained by the Land Court.
Approved Land Court title examiners assist with a variety of Land Court cases, including
- Tax title/foreclosure
- Registration/confirmation (including voluntary withdrawal)
- S cases
- Miscellaneous (including Servicemembers)
For example, in registration cases, one of the first steps is to have a Land Court-appointed title examiner conduct an exhaustive title search for the property seeking registration. By statute (M.G.L. c. 185, § 37), the title examiner must submit a report of his findings with the Court. The examiner's fees-often costing several hundred dollars-are paid by the petitioner in these kinds of cases.
Similarly, Land Court title examiners are also appointed at the start of tax title foreclosure cases filed by municipalities. The title examiner will prepare a mini-title abstract of the property ownership for the twenty to twenty-five years preceding the tax taking. The title examiner will also submit a written report with the names and addresses of all interested parties, including lienors, mortgagees, attaching creditors and the like. This information, and possibly additional information that will be needed from the petitioner's (municipality) attorney, will allow for proper notice about the foreclosure proceedings to be provided to interested parties. The examiner's fee is paid by the municipality. Incidentally, sometimes this fee is relatively low compared to what the examining attorney might otherwise bill at her typical hourly rate. As a result, title exams might not be a high priority for the examining attorney, and could potentially cause some minor delays at the beginning of the case because there is no penalty for a late title exam other than possible reassignment of the case to another approved title examiner. Fortunately, municipalities can often request or recommend specific Land Court title examiners out of sequence if they have had good experiences with those individuals in the past or if those examiners have a particular familiarity with the property.
The Land Court maintains the list of qualified Massachusetts attorneys who have sought and been approved for appointment as a Land Court Title Examiner. Minimum requirements to become a Land Court approved title examiner include:
- Membership of the Massachusetts Bar for at least three years (or demonstrated sufficient equivalent experience prior to admission to the bar, such as work performed as a title examiner);
- Relevant experience in conveyancing or title matters; and
- Submission to the Land Court of (1) a resume (including educational background, year of bar admission and experience in conveyancing); (2) two letters of recommendation from two Massachusetts attorneys familiar with the applicant's work; and (3) a title abstract that was previously prepared
Once the application has been approved by the Land Court, the title examiner must complete a Land Court form that provides contact information and preferences for the types of sequential and non-sequential appointments he is willing to take on as a Land Court title examiner. The approved Land Court examiner must also identify which county or counties (Registries of Deeds) within which the appointee is willing to accept appointments. Then the examiner's name will be added to the list maintained by the Land Court. If he is on a sequential list for any types of cases, then he will be appointed as his name comes up when the Court cycles through the list of approved attorneys. If he is on a non-sequential list, then he is designated as being always available to parties who need a Land Court approved title examiner for their cases. While it probably goes without saying, an attorney acting as a Land Court examiner in a particular case cannot simultaneously act as counsel for any of the parties.
Information for this article was derived from the Land Court website (http://www.mass.gov/courts/courtsandjudges/courts/landcourt/formsandinstructions.html), the Massachusetts Collectors and Treasurers Ass'n (MCTA) Treasurer's Manual (www.masstca.com) and Citizens' Housing and Planning Association (CHAPA) (http://www.chapa.org/chapa-publications).
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2012 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.