Did You Catch That?
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Summer 2010, Volume 9, Number 1
Did You Catch That?
by Gary F. Casaly, Esq., Special Counsel
Put on your thinking cap and clean your glasses. Below are a number of scenarios (a word I hate) — written a little bit like bar exam questions (I can hear the moans now) — that have hidden in them some salient facts that might adversely affect the title, or may look like problems but are not. See if you can catch them. But this is not a meaningless scavenger hunt, or a “Where’s Waldo” exercise — I will pose questions after each scenario — and you can try to answer them on your own — but I have providedthe answers that may in some cases surprise you. The questions immediately follow the fact patterns; the corresponding answers in a separate article.
#1. “This Land is Your Land — or is it Mine?”
Harry owns Blackacre and Barry owns Whiteacre. They decide to sell their respective properties to Larry but in an effort to save money they decide to just give one deed, joining in it as grantors and describing their respective properties in the instrument. Harry and Barry both go to the closing and sign the deed in front of the notary. When the notary is about to take the acknowledgment of the deed he finds out that Harry has forgotten to bring his license. The notary looks at G.L.c. 183, §30 and notes that only one grantor has to acknowledge a deed, and he is also aware of Gov. Romney’s Executive Order that requires a notary to satisfactorily establish the identity of the party giving the acknowledgement. He decides that he can’t take — and doesn’t need to take — Harry’s acknowledgment and takes Larry’s acknowledgment only. The deed is accepted by the register of deeds and gets recorded.
Q1: Is the acknowledgement good?
Q2: If the acknowledgement is not good is it made good due to the fact that the register of deeds accepted it for recording?
#2. “I Promise, It’s True!”
John sold his home to Mary and gave her a quitclaim deed. Later, Mary found out that when she purchased the property there was an attachment against John by the Acme Collection Company. She called John and demanded that he get a release of the attachment based on the covenants in his deed. He refused. Still later, Acme Collection Company won a judgment against John, got an execution from the court, recorded it and instructed the sheriff to sell the property at auction. When Mary found this out she called John again, threatening to sue him on his covenants. John said it was not his problem and hung up.
Q1: When Mary called John the first time did she have any rights against him?
Q2: When Mary called John the second time did she have any rights against him?
#3. “Anybody Seen Today’s Paper?”
MERS held a mortgage on property owned by Amalgamated Properties, Inc. On May 1, 2007 the Dead Beat Mortgage Company began to run a mortgage foreclosure ad foreclosing the mortgage — the first three-week publication was on that day. The second publication was on May 8, 2007 and just before the third publication appeared in the paper on May 15, 2007 MERS gave an assignment to Dead Beat Mortgage Company dated May 4, 2007. At the auction on May 18, 2007 the Vice President of Dead Beat Mortgage Company made an entry and the auctioneer struck the title off to Bette Buyer, the high bidder. A week later Dead Beat Mortgage Company and Bette had a closing and the following documents, all in proper form, were recorded:
- Foreclosure Deed
- Foreclosure Affidavit
- Appropriate Corporate Votes
On June 1, 2010 Bette deeded the property to Mary Jane.
Q1: Does Mary Jane have a good title?
#4. “I’ll Be There Right Away”
John owns Blackacre. He’s interested in acquiring a right of way (easement) over Whiteacre, a parcel owned by his neighbor, Mary. He talks with Mary and she’s agreeable. The lawyers agree on a form of easement acceptable to everyone. The document is recorded with the intent of creating an easement that is an appurtenance to Blackacre and a servitude over Whiteacre.
John wants to sell Blackacre and the appurtenant easement it enjoys to your client. You explain to your client that you need to establish that (i) John has good title to Blackacre, (ii) Mary granted a good easement to John which is a valid appurtenance to his property and (iii) neither Blackacre nor the easement are subject to any defects of liens.
Q1: Do you need to order a municipal lien certificate on Mary’s property?
Q2: After the easement is created is it necessary to keep running Mary as to Whiteacre to see if she has done anything to affect the easement?
#5. “Home Sweet Home”
John purchased property in his own name. John immediately recorded a homestead. When John showed up a few years thereafter at the bank attorney’s office to refinance his home the bank lawyer required John, in addition to signing the new mortgage, to sign a separate release of homestead, which was recorded along with the new mortgage. The bank lawyer prepared a new homestead for John to sign, which was recorded immediately after the mortgage.
Q1: What mistake might the bank lawyer have made here?
Q2: Were any other mistakes made?
#6. “Time to Pay the Piper”
The year 2001 was not a good year for John. He found out that he made some disastrous calculations on his income tax return for 1999 and his spouse sued him for divorce and obtained a judgment for child support. Also, in the divorce proceedings an order was entered directing John to convey property that he owned to his spouse in lieu of alimony.
The IRS recorded a tax lien against John on July 1, 2002 for the taxes assessed as of December 31, 1999 and the probate court filed a child support lien against him on the very same day.
John’s spouse wants to sell the property to your client today and this morning recorded a certified copy of the decree of the probate court directing John to make the conveyance to the spouse.
Q1: Does John’s spouse have title to the property?
Q2: What liens affect the title to the property?