Attachments and Executions: Expiration
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Summer 2008, Volume 7, Number 3
Attachements and Executions: When Do They Expire?
by Margaret Fortuna, Underwriting Counsel
Question: G.L.c. 236, §49A indicates that executions continue as a lien for six years. However, REBA Title Standard 47 refers to a six-year-and-ninety-day period. So, are executions good for six years or six years and ninety days?
Answer: First, let’s take a closer look at G.L.c. 236, §49A and REBA Title Standard 47 to see what could be causing this confusion.
Section 49A states:
If a levy on execution shall not have been completed by set-off under the provisions of sections six to twenty-three, inclusive, or by sale under the provisions of sections twenty-six to thirty, inclusive, within six years from the date on which notice of the execution was deposited in a registry of deeds under the provisions of section four, the levy if otherwise then valid shall be void as to any land within such registry district unless within said six-year period it shall be brought forward in such registry of deeds in the manner provided in section one hundred and fourteen A of chapter two hundred and twenty-three for bringing forward attachments of real estate. In case a levy becomes void under the provisions of this section the creditor may resort to any other legal remedy for the satisfaction of his judgment.
REBA Title Standard 47 states:
The title of a person against whom there is a recorded seizure on execution is not on that account defective if:
1) The seizure has been of record for six years and ninety days without record of enforcement by sheriff’s sale or set off, unless brought forward in accordance with G.L.c. 223 §114A; or
2) The seizure purports to be of land of one not a party to the proceeding in which the execution was issued, unless the sheriff’s return recites in substance that the seizure is of land of a party theretofore properly attached to the extent of that party’s interest in the land on the date of attachment; or
3) The execution has been returned to court satisfied in full, or there is of record a certificate of the appropriate clerk of court to that effect; or
4) There is of record in the chain of title an instrument of release referring to the seizure executed by the deputy sheriff making the seizure or by the execution creditor.
The missing piece of the puzzle which might be causing this confusion could be G.L.c. 236, §27 which states:
The officer authorized to serve the execution shall make the sale by public auction to the highest bidder, and convey by deed to the purchaser all the debtor’s title to the land or rights so sold. Such deed shall, if the execution with the return thereon has been returned, be valid as against the debtor or any person claiming under him who has actual notice thereof and, if recorded within three months after such sale in the registry of deeds for the county or district where the land lies, shall be valid as against any other person.
In short, pursuant to G.L c. 236, §49A, once recorded, executions continue as a lien for six years. However, when dealing with the duration of executions you must also keep in mind G.L.c. 236, §27 which states that a sheriff’s deed will bind parties if recorded within three months after the sale. REBA Title Standard 47 accounts for the time requirements of both statues. Therefore, assuming an extension of the execution has not been recorded and the debtor has not filed for bankruptcy protection, title to property which is subject to a recorded execution cannot be safely passed until the expiration of six years and three months from the recording of the execution.
Question: John Smith owns property located at 5 Main Street, Salem, Massachusetts. An attachment is recorded with the Essex South Registry of Deeds against Mr. Smith’s property. The attachment is dated June 16, 2008 and is recorded with said Registry on June 24, 2008. Assuming that the attachment is not brought forward and that the debtor does not file for bankruptcy protection, when will this attachment expire?
Answer: June 24, 2014. Pursuant to G.L.c. 223, §114A, an attachment expires six years from the filing in the Registry of Deeds, not six years from the date of the attachment. (See also, REBA Title Standard 49, Item 3, which states that an attachment is discharged or dissolved by the expiration of six years from the date of the filing in the Registry of Deeds or from the date of the most recent bringing forward of the attachment.)
Question: Michael Jones is the owner of property located at 10 Elm Street, Arlington, Massachusetts. An attachment against Mr. Jones is properly recorded with the Middlesex South Registry of Deeds on February 10, 2005. An execution levying against Mr. Jones’ property at 10 Elm Street, Arlington, Massachusetts is recorded with said Registry on March 7, 2005. A Clerk’s Certificate which indicates that the Execution in question has been returned to the Court marked “satisfied in full” is recorded on May 7, 2006. Do you need a separate document to release the attachment?
Answer: No. G.L.c. 223, §59 states, “Upon judgment for the plaintiff in a civil action, property which has been attached in connection with said action shall remain subject to attachment for thirty days after the date which appears on the execution issued upon such judgment pursuant to chapter two hundred and thirty-five, unless sooner dissolved.”
Question: Mary Johnson owns property located at 45 Bright Road, Worcester, Massachusetts. An execution against Ms. Johnson’s 45 Bright Road, Worcester property is recorded with the Worcester South Registry of Deeds on February 10, 1999. A document bringing forward that execution is recorded by creditor’s counsel on January 28, 2005. Has the execution expired?
Answer: No. The bringing forward of the execution starts the six year time clock running again. G.L.c. 236, §49A, provides that executions can be carried forward in the same manner as attachments are brought forward under G.L.c. 223, §114A.
Question: Daniel Ryan owns property located at 101 Washington Street, Boston, Massachusetts. An execution against Mr. Ryan’s Washington Street property is recorded with the Suffolk County Registry of Deeds on January 29, 2005. Plaintiff’s attorney executes and records a release of the execution. Does this document dissolve the execution?
Answer: No. While, the plaintiff’s counsel can release an attachment (See REBA Title Standard 47), this form of release does not properly dissolve an execution.
Question: Deborah Martin owns property located at 55 Summer Street, Plymouth, Massachusetts. An execution against Ms. Martin’s property was recorded with the Plymouth County Registry of Deeds on August 25, 2001. Ms. Martin filed a Chapter 13 Bankruptcy Petition on October 26, 2001. The Bankruptcy action was terminated on December 5, 2003. Assuming that the execution was not avoided by the bankruptcy action, has the execution expired?
Answer: No. It is true that six years and ninety days have passed since the recording of the execution in our fact pattern. Nevertheless, the filing of a bankruptcy action stays the running of the six year time clock pursuant to G.L.c. 236, §49A during the pendency of the bankruptcy proceedings. (For a more detailed discussion of the effect of a bankruptcy filing when dealing with recorded executions, I would refer you to the article written by Attorney Gary F. Casaly entitled, “Bankruptcy Law and the Conveyancer – Traps to Watch Out For” which appeared in the Summer 2003, Volume 2, Number 3 edition of The Massachusetts Focus.