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Reverters

Restrictions and Reverters

There are three importation statutes that need to be discussed when it comes to reverters. They are G.L.c. 260, §31 G.L.c. 184A, §7 and G.L.c. 184, §19. These statutes provide as follows:

G.L.c. 260, §31:

No proceeding based upon any right of entry for condition broken or possibility of reverter, to which a fee simple or fee simple determinable in land is subject, created before the second day of January, nineteen hundred and fifty-five, shall be maintained in any court after the first day of January, nineteen hundred and sixty-four, unless on or before the first day of January, nineteen hundred and sixty-four, (a) the condition has been broken or the reverter has occurred, and a person or persons having the right of entry or reverter shall have taken possession of the land, and in case of entry made after January first, nineteen hundred and fifty-seven, shall have filed a certificate of entry pursuant to section nineteen of chapter one hundred and eighty-four, or (b) a person or persons having the right of entry, or who would have it if the condition were broken, or would be entitled if the reverter occurred, or one of them if there be more than one, shall by himself, or by his attorney, agent, guardian, conservator or parent, have filed in the registry of deeds, or in the case of registered land, in the registry of the land court, for the district in which the land is situated, a statement in writing, duly sworn to, describing the land and the nature of the right and the deed or other instrument creating it, and where it may be found if recorded or registered, and, in case of registered land, naming the holder or holders of the outstanding certificate of title and stating the number of said certificate, and, in case of land not registered, naming the person or persons appearing of record to own the fee subject to such right or possibility, or shown by the records of the tax assessors at the last prior assessment date to be the owner or owners thereof.

G.L.c. 184A, §7:

A fee simple determinable in land or a fee simple in land subject to a right of entry for condition broken [created after January 1, 1955] shall become a fee simple absolute if the specified contingency does not occur within thirty years from the date when such fee simple determinable or such fee simple subject to a right of entry becomes possessory. If such contingency occurs within said thirty years the succeeding interest, which may be an interest in a person other than the person creating the interest or his heirs, shall become possessory or the right of entry exercisable notwithstanding the rule against perpetuities.

G.L.c. 184, §19:

If real property has been conveyed by deed on a condition therein expressed, which is not a mortgage and if proceedings based upon right of entry for breach of such conditions have not been barred by section thirty-one A of chapter two hundred and sixty, the grantor, his heirs and devisees upon breach of such condition may enter on the granted premises in order to revest the title; and a certificate of such entry, made and sworn to before any officer duly qualified to administer oaths by two competent witnesses and recorded within thirty days after such entry in the registry of deeds for the county or district where the land lies, or a duly certified copy of the record of such certificate, shall, after the expiration of three years from such entry, be prima facie evidence of such breach and entry. If a grantor, his heirs or devisees made such entry and certificate and filed the certificate as herein required prior to June ninth, eighteen hundred and ninety-eight, said certificate or a duly certified copy of the record thereof shall have like force and effect.

No proceeding based upon any right of entry or forfeiture which arises by reason of the termination of an estate in land created prior to the second day of January, nineteen hundred and fifty-six, and regarded as an estate in fee simple under section one of chapter one hundred and eighty-six shall be maintained either at law or in equity in any court unless a person having such right or his attorney, agent, guardian, conservator or parent files on or before the first day of January, nineteen hundred and sixty-six in the registry of deeds, or in the case of registered land in the registry district of the land court for the district in which the land is situated, a statement in writing, duly sworn to, describing the land and the nature of the right and the deed or other instrument creating it, and where it may be found if recorded or registered, and in case of registered land naming the holder or holders of the outstanding certificate of title and stating the number of said certificate, and in case of land not registered naming the person or persons then appearing of record to own the fee subject to such right, or shown by the records of the tax assessors at the last prior assessment date to be the owner or owners thereof. Such statement shall be received and recorded or registered upon payment of the fee required by law, and shall be indexed in the grantor index under the person or persons so named, and in case of registered land, noted on the certificate of title. The register and assistant recorder shall also keep a separate list of such statements.

This section shall apply to all such rights whether or not the owner thereof is a corporation or a charity or a government or governmental subdivision, or is under any disability or out of the commonwealth, and it shall apply notwithstanding any recitals in deeds or other instruments heretofore or hereafter recorded.

This section shall not apply to any leasehold estate which has less than fifty years of its term unexpired, or to any leasehold estate mentioned in section one of said chapter one hundred and eighty-six, where rent due under a written instrument has been paid or tendered to the owner of the reversion within a period of twenty years prior to the first day of January, nineteen hundred and fifty-seven.

These statutes are complicated and inexorably intertwined. The first two statutes cover distinct periods of time during which the particular reverter was created and the third statute "fills in the rest."

At common law reverters could exist indefinitely. The above statutes make provision for their demise. The first statute (G.L.c. 260, §31) tells us that old reverters (those created before January 2, 1955) will expire and cannot be exercised if the event that triggers them thereafter occurs unless the holder of the reverter, before January 1, 1964, "preserves" them by recording a notice to that effect. If the "trigger" already occurred the reverter can be enforced if, before January 1, 1964, the holder makes an entry[1] and, with respect to entries made after January 1, 1957, records a certificate of entry pursuant to G.L.c. 184, §19. That's all fine and good, and would clear the record title, except with respect to entries made before January 1, 1957. How is the record title cleared with regard to entries made prior to 1957? This is where G.L.c. 184, §19 comes in to "fill in the gaps." That statute is not limited to a particular period of time, and provides that if the right of entry for breach of such conditions have not been barred by" G.L.c. 260, §31 then and entry can be recorded which will be "prima facie evidence of such breach and entry." The conclusion, of course, is that if no certificate of entry is recorded there is no presumption of such breach or entry. In this regard, although recording an entry under this law is not mandatory to preserve the right when the possession has occurred before 1957, the failure to record such an entry strongly suggests that no reverter has occurred. On the other hand, the failure to record, or the late recording of an entry for possession where the possession was taken after 1956 would extinguish the right altogether.

The provisions of G.L.c. 184A, §7 apply to reverts created after January, 1955, but they too would be subject to the broad provisions of G.L.c. 184, §19.

It should be noted that the provisions of G.L.c. 260, §31A are not be applicable to cases where a trust is involved. See, for example, Harrison v. Marcus, 394 Mass. 424, 486 N.E.2d 710 (1985). Even though the grantor in Harrison used the words "so long as," typically used to create a possibility of reverter, the court even discounted those words as creating a fee simple determinable due to the their location in the instrument. "If Taylor had [ ] intended [to create a fee simple determinable] he could simply have deeded the parcel to the trustees 'so long as Troop 59 exists.'"

1 The entry requirement is not limited to rights of entry for condition broken, but extends also to possibilities of reverter. At common law, in the case of a breach of condition under a possibility of reverter (as opposed to a right of entry for condition broken) title would revest automatically, with no further action required by the holder of the right. The statute now requires action (an entry) to be made and further requires the recording of the entry, depending upon when it was made.