Title Standard Spotlight
Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Spring 2003, Volume 2, Number 2
Title Standard Spotlight
Tax Titles and Descriptions (Part I of II)
by Ward P. Graham, New England Region Counsel
In this issue of The Massachusetts Focus, we're going to depart a little from an in-depth analysis of an entire title standard as in the past and focus on portions of two title standards that interrelate: Item (2) of Title Standard No. 4, Tax Titles, and Item 1 of Title Standard No. 27, Title References and Descriptions. In addition, this will be a two-part miniseries, so you'll have to come back next time for the exciting conclusion.
In order to have a good tax title, Title Standard No. 4 (2) establishes that, among other things, you need to have a description of the tax title property that "is sufficient to convey title." Well, what does that mean? None of the Comments to Title Standard No. 4 give us any guidance. Where can we turn? Item 1 of Title Standard No. 27 is a good start. That provision of Title Standard No. 27 recites:
In order to convey a good title, a description of a parcel of land must be capable of referring to only one parcel. A description is not sufficient to convey title if the land is described as part of a tract without a specific description of its location within the tract.
Coincidentally, the sole case cited in the Comment in support for this provision of Title Standard No. 27 is a case involving a tax title, McHale v. Treworgy, 325 Mass. 381, 90 N.E.2d 908 (1950). Indeed, McHale is a frequently cited case on the issue of descriptions both involving tax titles and otherwise. Like many other areas of the law, however, cases both before and after McHale can go either way on the sufficiency of a description depending many times on subtle factual distinctions. In this article, we'll compare some of those cases so see how they fit with Title Standard No. 4 (2) and Title Standard No. 27.
To start with, cities and towns customarily take property for non-payment of taxes by a description that is by reference to lots on their assessor's plans. Sometimes, the descriptions may include references to title vesting deeds, references to lots on recorded plans or plans in other public records, or abbreviated metes and bounds descriptions (rarely do you find full metes and bounds descriptions used). Not a problem. But sometimes, the descriptions are much more abbreviated, such as a mere reference to a lot or parcel with no plan or title references or a reference to a parcel being a portion of a larger parcel without any additional references establishing what portion it is. The latter types of descriptions are very problematic but any description in a tax title must be reviewed with care because, while a description might be acceptable for tax title purposes, it may not be adequate for "conveyance" purposes.
Given that the customary practice in tax taking situations is to use a description that refers to a lot on the assessor's plan, is that also good enough for conveyance purposes under Title Standards 4 (2) and 27? As stated in Section 244 of Park, supra :
Where there is a reference to a plan in a deed, the courses, distances and lines as there set forth are regarded as the description by which the limits of the grant are ascertained. . . . The plan is thereby incorporated in the deed. [Citations omitted.]
Note that Park doesn't say anything about the plan being recorded at the Registry of Deeds. Nonetheless, because we are taught that a title examination does not have to include a search of records outside the Registries of Deeds and Probate, there remains a question even today in some conveyancers' minds as to whether the reference to a lot on an assessor's plan, being a plan not recorded at the Registry of Deeds, can form the basis for a sufficient title to real estate that has been the subject of a tax title. Many years ago, in Larsen v. Dillenschneider, 235 Mass. 56, 126 N.E. 363 (1920), the Supreme Judicial Court established the rule that assessor's plans may be relied upon for description purposes the same as a recorded plan. In explaining this rule, the Court put it this way:
'Now it is a well-settled rule of construction that where a plan is referred to in a deed, as containing a description of an estate, the courses, distances and other particulars, appearing upon the plan, are to be as much regarded, in ascertaining the true description of the estate, and the intent of the parties in making it, as if they had been expressly recited and enumerated in the deed.' Morgan v. Moore, 3 Gray, 319, 322 ; Fox v. Union Sugar Refinery Co., 109 Mass. 292, 296 .
Manifestly a reference in a deed, assessment or advertisement to a lot by number on a plan recorded in the Registry of Deeds would be a sufficient description. It has been held that references to instruments or plans not then but later recorded were sufficient for descriptive purposes in a deed. Robinson v. Brennan, 115 Mass. 583 ; Blaney v. Rice, 20 Pick. 62, 32 Am. Dec. 204 . References in deeds to plans apparently never made a matter of record have been held incorporated into the deeds and binding upon the parties. Lunt v. Holland, 14 Mass. 149 ; Magoun v. Lapham, 21 Pick. 135 .
An assessor's plan, which shows the particular lot in connection with all neighboring lands, affords a definite and accurate description. It is easily found. It is open to public inspection at reasonable times under rational limitations. R. L.c. 35, §17. As a practical matter it affords quite as certain and accessible information to anybody in interest as does a plan in the registry of deeds. Reference to such a plan reaches the main end sought by advertisement in tax sales, which is to enable the owner and prospective bidders to locate the land to be sold with substantial certainty. Conners v. Lowell, 209 Mass. 111, 120, 95 N.E. 412, Ann. Cas. 1912B, 627 ; Williams v. Bowers, 197 Mass. 565, 84 N.E. 317 ; Bemis v. Caldwell, 143 Mass. 299, 9 N.E. 623 .
Larsen, supra, at 57-58. This creates an exception to the usual rule that a title examination need only be limited to searching records at the Registries of Deeds and Probate. Thus, for purposes of Title Standard No. 27, reference to a specific lot on an assessor's plan incorporates the description of that lot into the instrument as though set forth by metes and bounds and area, at least to the extent those elements of a description are shown on the plan. If an ambiguity or discrepancy appears in some particular between the description set forth in the tax title instruments and the description of the lot as shown on the plan referred to, the usual rules of construction come into play. Let's take a look at some of the cases that have grappled with the sufficiency of a description for tax title purposes.
We start with Conners v. City of Lowell, 209 Mass. 111, 95 N.E. 412 (1911). Like most cases in which the validity of a tax title is being challenged, there were a number of issues raised in the challenge to the tax titles in this case, including, for our purposes, a challenge as to the descriptions used. This case is instructive because it involved takings of several parcels and some of the descriptions, while meager, were deemed sufficient but others were not.
The Court starts its analysis with the notion that "[a]lthough the terms of a tax deed need not show actual compliance to a technical nicety with the minute particulars of statutory requirements in making the sale itself, yet they must satisfy a reasonable mind without resort to extrinsic evidence that a valid cause of sale in fact existed." Id., at 115-116. The Court then reviewed the recitals in the taking instruments and tax deeds, including the forms of description used in the various takings involved in the case.
In one group of takings the lots involved were "described in the deeds by lot numbers, the street and side of street on which they were located, and the name of all abutting owners, with the general points of compass on which the land of abutting owners lay, but without further designation by metes and bounds, and without reference to any plan upon which the lot as numbered may be found." Id., at 120. The Court recited a sample description as follows:
three thousand seven hundred fifty-five (3755) sq. feet of land, more or less, being lots 549-550 on the east side of Tanner Street with land now or formerly of Woonsocket Institution for Savings on the north and south, Merchants Street on the east, and Tanner Street on the west.
Id. Despite the omissions from the descriptions of a reference to a plan or precise metes and bounds, the Court found that "[w]hile this description reached nearly to the line of indefiniteness, it is on the whole sufficient." Id. The Court explained its conclusion that such a description was sufficient as follows:
It gives data enough to enable one to make a reasonable identification of the property. It indicates a parcel of specified area, rectangular shape, lying between two streets and between lots of other defined owners, presumably a portion of a large tract subdivided into smaller parts. Practically the same information is conveyed in the instances when the rear of the lots bound, not upon a street, but upon another named owner. As a matter of common knowledge it is a kind of description not infrequently found in deeds, especially of land in the country. To require a greater particularity would impose upon the tax collector the necessity of an expensive survey in many cases. While the descriptions in a tax advertisement must be such as to enable both owner and bidder from its terms to locate with substantial certainty the land to be sold, it need not be so detailed as to point out visually its precise boundaries so that an utter stranger unacquainted with the locality and ignorant of the neighbors could find it without inquiry.
Id. As will be seen in later cases, the failure to recite precise metes and bounds has never been found, in and of itself, fatal to a tax taking or tax deed. In Conners, though, the failure to refer to a particular plan in a description including a recitation as to certain lots was saved by the fact that sufficient bounding references to abutting owners and streets gave enough information for the taxpayer and anyone else interested to determine which precise parcel was involved. Note, also, that, even with all the information that was provided, the Court still felt that this form of description almost fell below the minimum level of definiteness. The case of City Of Boston v. Boston Port Dev. Co., 308 Mass. 72, 30 N.E.2d 896 (1941) is very similar except that, in that case, there were also references to plans upon which certain enumerated lots were shown and as to another parcel not shown on a plan, there were not only abutting street and owner references, but also square footage and a deed reference were recited. Clearly, these situations would satisfy Item 1 of Title Standard No. 27 and, therefore, Item (2) of Title Standard No. 4.
As to other parcels that were the subject of the challenged tax sales, the Court in Connors did find that the descriptions, while similar to those described above, fell below the minimum level of definiteness. In the case of these parcels, the descriptions included the lot numbers, the street, the side of the street on which they were located and the area. However, in these instances, not only was there no reference to a plan where the lots might be shown, but also there was no reference to other information by which one could specifically locate the parcel, such as abutting monuments (other than the street) or abutting landowners. Despite the fact that there was a plan on record and a plan at the city engineer's office by which the lots could have been identified, neither plan was referred to and the Court held that this type of description was insufficient.
It differs from those discussed [above] in that the names of no abutting owners were given, nor was there anything to show the shape of the parcel. The designation of it by a lot number without naming the plan or showing where it might be found or giving any other descriptive circumstance was too indefinite. . . . These deeds were therefore invalid on their face and on inspection show that they convey no title. . . . A tax deed stands or falls on its own unaided merits. It must be delivered and recorded within thirty days from the sale. Its worth is to be determined as of that date. It cannot be supplemented or changed by subsequent instruments. Its errors and inaccuracies cannot be corrected, nor can its defects be supplied from any source. When by its terms it is obvious that it does not convey a title, it fails utterly to affect the rights of the original owner.
Conners, supra, at 122-123. Thus, as you can see, some seemingly minor factual distinctions between one description and another can take a minimally sufficient description and render it insufficient. On the other hand, Conners represents a stricter approach to tax title descriptions than do later cases. At the same time, the case remains instructive with respect to what constitutes a "description sufficient to convey title" for purposes of Title Standard No. 4 (2) and is often cited in later cases dealing with the adequacy of descriptions, particularly for tax titles.
One thing to keep in mind when reviewing tax title cases is that some of them, like Conners, predate a major change in the statutes. In particular, G.L.c. 60, §37, was amended in 1915 to add a sentence providing, "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." The application of this section was fully discussed in the oft-quoted case of City Of Fall River v. Conanicut Mills, 294 Mass. 98, 1 N.E.2d 36 (1936) and is a major reason for the more deferential standard applied in later decisions reviewing the adequacy of tax title descriptions.
At the same time, the court in the Conanicut case made it clear that:
In general, tax laws are construed strictly in favor of the taxpayer. Collector of Taxes of Boston v. Revere Building, Inc., 276 Mass. 576, 177 N.E. 577, 79 A.L.R. 112. Before the enactment of what is now that part of section 37 just quoted, this principle had been carried so far in relation to tax sales of real estate that failure to comply with statutory requirements, even in minute particulars, invalidated the sale. Charland v. Home for Aged Women, 204 Mass. 563, 567, 91 N.E. 146, 134 Am.St.Rep. 696; Shurtleff v. Potter, 206 Mass. 286, 92 N.E. 331; Conners v. Lowell, 209 Mass. 111, 95 N.E. 412, Ann.Cas.1912B, 627; Koch v. Austin, 225 Mass. 215, 114 N.E. 308. The purpose of the enactment was to mitigate the severity of this rule as to errors and irregularities which were neither substantial nor misleading. It was part of an important revision of the law by which fundamental changes were made in the effect of sales for collection of taxes. St.1915, c. 237. See now G.L.(Ter.Ed.)c. 60, §64 et seq. This clause appeared in section 17 of the 1915 act. After that revision the sale no longer transferred title at once to the purchaser, but gave him merely a lien which could be enlarged into a complete title only after proceedings in court for foreclosure of the right of redemption. Sections 1, 3, 4. Jenney v. Tilden, 270 Mass. 92, 94, 169 N.E. 669. Those changes in the statutes might be thought to give additional protection to the taxpayer, so that the former strictness could be relaxed. This does not mean that the amendment which now appears at the end of the present section 37 (see St.1935, c. 269) renders useless or nugatory all those requirements of law failure to observe which could be found to be neither substantial nor misleading, but it does mean that when this part of section 37 applies, such requirements become directory in character and cease to be conditions precedent to a valid sale. . . . Whether an error or irregularity is substantial or misleading must be decided according to the circumstances of each case.
Id., at 99-100. [Emphasis added.]
It is the latter statement, often quoted in later tax title cases, that puts us in a position, in some instances, of having to analyze a particular tax title description in great detail to determine if it is one of these marginal cases or it is clearly sufficient, especially when compared to the record title of the taxpayer from whom the property is taken. As the determination as to whether an error or irregularity is substantial or misleading is fact driven "according to the circumstances of each case," Id., at 100, in close call situations, the determination may have to be made by a court. In such a situation, it is important to keep in mind that the burden of proof on the issue of whether an error or irregularity is neither substantial nor misleading is on the municipality or on the person claiming under the tax title. Bartevian v. Cullen, 369 Mass. 819, 823, 343 N.E.2d 851 (1976); Pass v. Town Of Seekonk, 4 Mass. App. Ct. 447, 450, 351 N.E.2d 219 (1976).
To paraphrase Sean Connery in "The Untouchables," here endeth Part I of the lesson. Please return to the next issue of The Massachusetts Focus for Part II, the spellbinding conclusion of "Tax Titles and Descriptions."
1 For more general discussions of description issues in both tax title and non-tax title contexts, see Park, Real Estate Law, 2nd ed., 28 Mass. Prac. §§241-253 (West Publishing, 1981, Supp. 1995) (unfortunately, now out of print, but an excellent source for research in this area as well as most others involving real estate law if you have or can get a copy of it); H.H. Thayer, et al, Crocker's Notes on Common Forms, 8th ed., §§205-211 (MCLE 1995, Supp. 1997, 2000) (not quite as comprehensive or as logically laid out as Park, but pretty good); Eno & Hovey, Real Estate Law, 3rd ed., 28 Mass. Prac. §§4.23-4.34 (West Publishing, 1995, Supp. 2001) (more of an outline format; not as comprehensive as the other two sources). [Back to Text]
2 The basic rules of construction are set forth in Items 2 and 3 of Title Standard 27:
2. When a deed contains two inconsistent descriptions of a parcel of land, the more specific will govern. In the absence of evidence in the deed of a different intention, the descending order of priority is: monuments (including neighboring land of someone other than the grantor), courses and bearings in a running description, distances and area.
3. Missing bounds, errors in direction or distance, and ambiguous descriptions are cured by reference to a specific lot on a recorded plan or by a title reference to a deed containing an adequate description.
3 For an excellent example of a recent case in which the factual analysis was critical, see Krueger v. Devine, 18 Mass. App. Ct. 397, 466 N.E.2d 133 (1984), discussed in Part II of this article. [Back to Text]
4 Bear in mind also that a petition to foreclose a tax title is an in rem proceeding, Ryder v. Garden Estates, 329 Mass. 10, 105 N.E.2d 854 (1952) so, particularly in a contested case, one must be prepared with sufficient evidence to meet that burden. Krueger, supra (fn. 3), is a good example of evidence overcoming an imprecise description. [Back to Text]