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Counsel Questions and Answers

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Summer 2002, Volume 1, Number 2

Counsel Questions and Answers
by Richard Urban, Vice President and Massachusetts State Counsel

Question: My examiner included a document entitled "Abstract of Judgment Lien" in her title search. I've never seen or heard of such a thing. It names an owner as a party "against whom judgments have been obtained." However, the owner acquired title to the property after the "lien" was recorded. Must I do anything about this matter?

Answer: The lien in question is a federal judgment lien. It's an offspring of the "Federal Debt Collection Procedures Act," which is a collective name for various legislative acts that establish a uniform, nationwide system of civil procedures to facilitate the collection of debts owed to the United States by means of various federal agencies, departments and corporations. This Act is codified in various Titles but the source of authority for this lien is found in 28 U.S.C. §3201, which states, in pertinent part, that:

A judgment in a civil action shall create a lien on all real property of a judgment debtor on filing a certified copy of the abstract of the judgment in the manner in which a notice of tax lien would be filed under paragraphs (1) and (2) of section 6323(f) of the Internal Revenue Code of 1986. [Emphasis added.]

A lien created in this fashion is effective, unless satisfied, for a periond of 20 years. It may be renewed for one additional period of 20 years upon filing a notice of renewal in the same manner as the original judgment is filed. If a notice of renewal is filed before the expiration of the original 20-year period, and the court approves the renewal, the lien shall continue to relate back to the date the abstract of judgment is filed (see §§3201 et seq.).

Moreover §3201 (b) states that:

A lien created under subsection (a) shall have priority over any other lien or encumbrance which is perfected later in time.

The United States asserts that a perfected judgment will apply to after-acquired property of the named defendants as well as later perfected liens or encumbrances.

Although §3201 (b) states that the lien has "priority" over any other lien or encumbrance which is perfected later, it may not have priority over purchase money mortgages. This body of law has some resemblance to the Internal Revenue Service's companion methodology to file federal tax liens. For example, it incorporates by reference the Internal Revenue Service filing requirements for tax liens. Various Revenue Rulings have determined that federal tax liens are subordinate to the lien of a purchase money mortgage. However, until similar unequivocal rulings are made that favorably interpret the subordination of an abstract of judgment lien to a purchase money mortgage, any such liens must be paid and properly released, as in this case.

Question: Various unit deeds in the chain of title for a condominium unit do not include any reference to a parking space. However, recorded simultaneously with the deeds is a grant of an exclusive right and easement which assigns the parking space rights to the same grantee in the deed. At one point in the chain of title there were two owners, call them A and B, who were both the grantees in a deed of the unit and a simultaneous grant of the parking space. Sometime afterwards, A transferred his interest in the unit to B by deed. Unfortunately, a grant of the parking space did not accompany this deed. B later conveyed the unit by deed to C and executed a grant of the parking space as well. I can only surmise that B forgot that she never obtained a grant of the parking space from A. Does C have only a half-interest in the space? Do I need a confirmatory deed or grant from A to C which makes specific reference to the parking space?

Answer: The answer to this inquiry lies in the interplay of various statutes.

G.L.c. 183A is the enabling statute that authorizes and governs the creation of the condominium form of ownership. §1 provides definitions for various words that are used repeatedly in this chapter. "Unit" is defined, in pertinent part, as follows:

[A] part of the condominium including one or more rooms, with appurtenant areas such as balconies, terraces and storage lockers if any are stipulated in the master deed as being owned by the unit owner,…. [Emphasis added.]

Pursuant to §4, "[e]ach unit owner shall be entitled to the exclusive ownership and possession of his unit…."

G.L.c. 183, §15, entitled "Easements, privileges and appurtenances belonging to granted estate," states that:

In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.

Consequently, if the subject parking space is, indeed, defined in the master deed as an appurtenant easement unique to the unit, then it will "follow" the unit, by operation of G.L.c. 183, §15, even if it is not mentioned in the deed. The failure to include the space in a deed, or by separate grant for that matter, will not cause a failure of title to arise. Given, however, that prior draftpersons have adopted a system of separately granting the space, the need to make sure the space is defined in the master deed as an appurtenant easement to the unit is heightened. If it is so defined, no confirmatory deed or grant of the space should be required and, by operation of law, the space was transferred to B, and then to C by the very unit deeds themselves.