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Title Standard Spotlight

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Summer 2003, Volume 2, Number 3

Title Standard Spotlight
Tax Titles and Descriptions (Part II of II)

by Ward P. Graham, New England Region Counsel

Welcome back to the exciting conclusion of Tax Titles and Descriptions, a review of the interplay between Item 2 of Title Standard No. 4 (Tax Titles) and Item 1 of Title Standard No. 27 (Title References and Descriptions). When we left the story in the last issue of The Massachusetts Focus, we were discussing the impact on tax title description issues of the 1915 amendment to G.L.c. 60, §37 providing that "No tax title shall be held to be invalid by reason of any errors or irregularities in the proceedings of the collector which are neither substantial nor misleading." We learned from City of Fall River v. Conanicut Mills, 294 Mass. 98, 1 N.E.2d 36 (1936), that the determination as to whether an error or irregularity is substantial or misleading must be decided according to the circumstances of each case. We also learned from Bartevian v. Cullen, 369 Mass. 819, 823, 343 N.E.2d 851 (1976) and Pass v. Town of Seekonk, 4 Mass. App. Ct. 447, 450, 351 N.E.2d 219 (1976) that the burden of proving that an error or irregularity is neither substantial nor misleading is on the municipality or whoever is claiming under the tax title.

With that said, however, the courts do give some pretty wide latitude to the tax collector. The case of Town of Franklin v. Metcalfe, 307 Mass. 386, 30 N.E.2d 262 (1940), is interesting in that the description was not so much in dispute but rather the dispute related to the instrument from which the description was used for the taking. The description was as follows:

Land Main and West Central Streets with buildings thereon being the same premises described in deed from Edwin H. Downes, Deputy Sheriff, to Bertha Bachner dated May 12th, 1934, and recorded with Norfolk County Registry of Deeds, Book 2028, Page 63, and supposed to contain about 29,040 square feet.

Id., at 387. The litigated issue related to the fact that the description was not based on chain of title deeds into the taxpayer before the assessment, but rather, it was based on a Sheriff's Deed that was recorded in 1934, some two years after the tax year involved (1932) but prior to the demand and taking. Nonetheless, the Court found that such a description did not affect the validity of the taking. Id., at 389-390. Such a description should also comply with Title Standards No. 27 and 4, although the uncertainty about the square footage might need to be resolved.

In Lowell v. Boland, 327 Mass. 300, 98 N.E.2d 635 (1951), the description at issue was "29,421 square feet of land, more or less, situate on Dutton Street, as shown on Plan I 17 in office of city engineer." Id., at 301. Relying on the "neither substantial nor misleading" language from G.L.c. 60, §37, and the guiding principles followed in prior tax title description cases, the Court agreed with the trial judge's finding that "the descriptions were sufficiently accurate to satisfy the requirements of the statute." Id., at 302. [Emphasis added.] Crucial to this determination, however, were the facts that (1) the description referred to a plan located in the city engineer's office,[1] (2) the plan showed a small portion of Dutton Street and (3) the plan showed only one lot on the street with that same area.

In Lowell v. Boland, 327 Mass. 300, 98 N.E.2d 635 (1951), the description at issue was "29,421 square feet of land, more or less, situate on Dutton Street, as shown on Plan I 17 in office of city engineer." Id., at 301. Relying on the "neither substantial nor misleading" language from G.L.c. 60, §37, and the guiding principles followed in prior tax title description cases, the Court agreed with the trial judge's finding that "the descriptions were sufficiently accurate to satisfy the requirements of the statute." Id., at 302. [Emphasis added.] Crucial to this determination, however, were the facts that (1) the description referred to a plan located in the city engineer's office,[1] (2) the plan showed a small portion of Dutton Street and (3) the plan showed only one lot on the street with that same area.

In cases like Lowell v. Boland in which the challenged descriptions have been upheld, the courts usually find the descriptions to be "sufficiently accurate." In other words, while the descriptions may have been incomplete or somewhat vague, ultimately, they were accurate in describing the correct property. In addition to the cases previously discussed, see, e.g., City of Lowell v. Marden & Murphy, Inc., 321 Mass. 597, 74 N.E.2d 666 (1947);[2] Town of Lenox v. Oglesby, 311 Mass. 269, 41 N.E.2d 45 (1942);[3] City of Boston v. Lynch, 304 Mass. 272, 275, 23 N.E.2d 466 (1939).[4]

In some cases in which the descriptions have been deemed insufficient, even in the face of the savings language of c.60, §37, the underlying basis was that the description was incomplete or vague to the degree that the court could not determine what property was being described. See, e.g., McHale v. Treworgy, supra, and City of Springfield v. Arcade Malleable Iron Co., 85 Mass. 154, 188 N.E. 639 (1934), both discussed below. In other cases, it was determined that the tax taking instruments described land that the person assessed did not own, Holcombe v. Hopkins, 314 Mass. 113, 49 N.E.2d 722 (1943), or for which the taxpayer could not be properly taxed, Lancy v. Boston, 186 Mass. 128, 132, 71 N.E. 302, ___ (1904) ("when an easement [in this case a railroad easement] in land taken for a public use involves practically the exclusive possession and control of the property by the public, and leaves the original owner [of the underlying fee] with no right of substantial value, the property is exempt from taxation").[5] A more recent case dealt with a situation in which closer comparison of the tax title description with the record chain of title descriptions of the assessed party's property revealed that the property in controversy was not actually included in the description used for the taking. Sheriff's Meadow Foundation v. Bay-Courte Edgartown, Inc., 401 Mass. 267, 516 N.E.2d 144 (1987).[6]

In the McHale case, the property involved had once been a larger lot shown on a recorded plan[7] as "Lot 18 Unit 4" but the lot had been split up and a portion of it had been conveyed to a relative of the owner by a deed with a metes and bounds description together with a recital that the property conveyed was a part of Lot 18 Unit 4 shown on the plan. The description used in the tax title instruments was as follows:

George Wolfe:[8] 19,340 square feet of land, more or less, with the buildings thereon being part of lot numbered 18, Unit 4, on a plan of land entitled, 'River Pines' and recorded in said Registry [Middlesex North District], Plan Book 52, Plan 10 [the Smith plan].

Id., at 383. [Footnote added.] Notwithstanding the savings language of c.60, §37, and the fact that the portion of the lot that was conveyed was conveyed by a description that included a metes and bounds description and a recital that it was a portion of the larger original lot, the Court found the tax title description to be insufficient, stating, "In our view this described no land at all and therefore conveyed no land." Id., at 385. Presumably, the description of what remained could have been determined with a reasonable degree of certainty by title examination and calculation. Nonetheless, this type of description was deemed insufficient even for tax title purposes.

Similarly, in City of Springfield v. Arcade Malleable Iron Co., supra, the property was described as a "lot of land containing about 202,864 square feet with building thereon situate on the easterly side of Page Boulevard and adjoining estate now or formerly of other land of said Arcade Malleable Iron Company." Id., at 155. The trial court found that "[a] proposed purchaser could not tell, the owner did not understand, nor, with the examiner's report before me, can I ascertain what the tract of land was that was described as being situated on the easterly side of Page Boulevard adjoining estate now or formerly of other land of the Arcade Malleable Iron Company and containing about 202,864 square feet." Id. The Supreme Judicial Court upheld that finding.

Contrast these cases with the case of Krueger v. Devine, 18 Mass. App. Ct. 397, 466 N.E.2d 133 (1984). In Krueger, the description used for a 1927[9] tax taking was "Leona M. Savage -- land at South Beach[10] consisting of a tract of 39 acres . . . ." Id., at 399. [Footnote added.] As the Court stated earlier in the case, "That the description was not precise is beyond peradventure; the question is whether it was so insufficient as to constitute an irregularity which is "substantial" or "misleading" within the meaning of G.L.c. 60, §37, as amended by St. 1976, c. 322. See Springfield v. Schaffer, 12 Mass. App. Ct. 277, 279 (1981)." Id., at 398. Concluding that the description in the valuation list, in the notice of sale, and in the tax deed was sufficiently accurate to withstand attack, the Appeals Court quoted the findings of the Land Court judge as follows:

Edgartown at the brink of the Great Depression was a town with a population small in number and a large undeveloped acreage. There was local awareness of the . . . ownership by Leona Savage . . . . The history of the chain of title to land of the South Beach Company as shown on [a plan received as exhibit 29] and of the description on the valuation list bear a striking resemblance. The correlation between the area assessed and the record title impels the conclusion that the thirty-nine acres (with the dwelling house and barn) represent the area set off to Gerald J. Savage [Leona's husband and a predecessor in the chain of title] in the partition . . . . The townspeople were familiar with the Savage property and aware of the partition piece. Mrs. Savage could have been in no doubt as to what was intended since she previously had redeemed the property from a prior taking for the non-payment of taxes. This case is unique to its time and locality and is a product of an era which has now passed.

Id., at 400. The Appeals Court discussed other findings by the Land Court judge that it found significant in this case:

The judge also found that drawing a more precise description would have required the town to hire a title examiner and surveyor at a time when the number of professional people on the island was limited. Although she thought the description in the valuation list and notice "minimal," the Land Court judge found that, in the circumstances, the description was reasonably accurate and fairly designated the property for those interested. Conners v. Lowell, 209 Mass. 111, 120 (1911); Franklin v. Metcalfe, 307 Mass. 386, 389 (1940); Lowell v. Boland, 327 Mass. 300, 302 (1951). As to the capacity of the description in the valuation list and the notice of taking to inform the taxpayer of what land was to be sold, the judge inferred that capacity from Leona Savage's redemption of the property when it had been previously the subject of a tax taking. There was testimony that the description, in its shorthand way, would have described the partition parcel to islanders in the 1920's. Indeed, the descriptions of three other parcels advertised together with the locus as up for tax sale were equally minimal.

Id., at 400-401. [Footnotes omitted.] Although affirming the Land Court judge's findings and conclusion, the Appeals Court cautioned that, even with this factual background supplementing the record, "[a] finding that the rudimentary description here employed was sufficient -- at least to the degree that its insufficiency was neither substantial nor misleading -- may not have been inevitable, i.e., there was conflicting evidence." Id., at 401. In aid of resolving the conflict, the Appeals Court found that it was appropriate for the Land Court judge to consider "the rural and sparsely settled nature of Edgartown at the time of the tax title proceedings, and the information imparted to property owners even by crude descriptions [citation omitted] . . . the taxpayer's relative sophistication (she and her husband held real estate for investment), the taxpayer's previous redemption, . . . and the taxpayer's long acquiescence in the tax taking.[11] Compare Pass v. Seekonk, 4 Mass. App. Ct. 447, 451 (1976)." Id.

In addition, without much discussion, the Appeals Court also upheld the Land Court judge's determination that the description in the tax deed given in 1928 to a successful bidder at the tax sale (which described the property as "Land at South Beach consisting of a tract of 29 acres," Id., at 399-400, where the tract was really 39 acres as described in the assessment and taking instruments) was merely a scrivener's error and not fatal.

Thus, it comes to pass, that, like most any other concept in real estate law, what seems like a simple concept of what constitutes a sufficient description for purposes of a tax title under Title Standards No. 4 and 27 is not always clear. There is sometimes a distinction between what is good record title for purposes of conveyance and what the courts will determine is a sufficient description for purposes of upholding a tax title.

Even in a situation such as discussed in the Krueger case, you may have a description adequate for tax title purposes that is not sufficient for record title purposes. In such instances, as the Sheriff's Meadow case points out, it is imperative to compare the record title description(s) of the tax title property in the assessed taxpayer's chain of title prior to the tax taking to determine if (1) any discrepancies between the two exist and (2) if those discrepancies can be resolved on the face of the instruments themselves or resort to extrinsic evidence is necessary.

If the descriptions match or are facially consistent and meet the requirement of Title Standard 27 (1) ("a description of a parcel of land must be capable of referring to only one parcel"), you've likely complied with Title Standard No. 4 (2) requiring a "description . . . sufficient to convey title" for tax title property. On the other hand, a tax title description that appears vague on its face or varies from the chain of title prior to the taking and requires extrinsic evidence to support it may yet prove to be sufficient, but the resolution of the discrepancy may require a trip to the courthouse. In that event, because, as pointed out earlier, the proponent of the tax title has the burden of proof, be prepared to present as much factual evidence as possible on the issue of whether (1) the description used was sufficient to identify the subject parcel and (2) that any facial ambiguity was nonetheless neither substantial nor misleading under the facts and circumstances of the particular case.

As you can see, determining the adequacy of a tax title description is not always easy, even for the courts. If you have a situation involving a questionable tax title description, as always, feel free to contact your friendly underwriter at Stewart Title to discuss it. 

1 In support of the validity of the use of a reference to a plan located in the city engineer's office, the Court cited case of Larsen v. Dillenschneider, 235 Mass. 56, 126 N.E. 363 (1920), which is the case we discussed in Part I of this article that established the validity of the use of an off-record assessor's plan as an appropriate plan reference. [Back to Text]

2 Descriptions of three out of four parcels described by area and located northerly (2 of the parcels) and southerly (the other 2) of Jackson St. were sufficient because "locations of the [three distinct] parcels in the assessment book were sufficient to locate them." Id., at 599. As to the fourth parcel, however, it was made up of two parcels previously taxed separately and, as such, "the whole tract could not be sold as a whole for nonpayment of the combined tax upon the [two] parcels." Id., at 602. [Back to Text]

3 Assessment and taking of land designated merely as "No. 7-8" sufficient when combined with very particularized description of the various buildings separately assessed and located on the particular land. [Back to Text]

4 The specific descriptions used were not recited in the case but the court states; "The description of the lots, though meagre (sic), were not insufficient on their faces. A person visiting the streets and numbers stated would find there lots containing the square feet stated." Id., at 275. [Back to Text]

5 The Holcombe and Lancy cases would also be support for Item (1) of Title Standard No. 4 requiring that a proper party be assessed. [Back to Text]

6 In this case, while there was some discussion of the title history dating back to the early 1800s, the precise tax taking descriptions and their relationship to the property owned by the party assessed were not set out in the case but the SJC noted that the Land Court judge found, upon the evidence, that the takings did not encompass locus. [Back to Text]

7 Referred to in the case as "the Smith Plan." [Back to Text]

8 George Wolfe was the owner of the larger lot and the grantor in the deed conveying a portion of it to a relative by the name of James F. Wolfe. [Back to Text]

9 Significant to the Land Court judge as well as the Appeals Court, there was an earlier tax taking in 1918 for nonpayment of 1916 and 1917 taxes which the assessed taxpayer redeemed in 1924, three years prior to the taking at issue in the case. [Back to Text]

10 The case involves land in Edgartown on Martha's Vineyard, which also becomes significant in the analysis. [Back to Text]

11 "The taxpayer lived until 1978, . . . fifty years had gone by, and a significant number of conveyances out from the original tax deed had occurred [with no action on the part of the taxpayer to redeem or challenge]." Id., at 402. [Back to Text]