Articles from The Massachusetts Focus
Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Summer 2009, Volume 8, Number 1
by Melanie Kido, Underwriting Counsel
Question: My title examination discloses an outstanding mortgage from 1970. Can you assist me with locating the successor to the lender, which is no longer in business, so that I may obtain a discharge of mortgage?
Answer: Under the newly enacted Discharge Bill, many of these old problematic missing discharges or improperly discharged mortgages were resolved as of October 1, 2007. G.L.c. 60, §33 has been amended, effective as of October 1, 2007, to provide as follows:
A power of sale in any mortgage of real estate shall not be exercised and an entry shall not be made nor possession taken nor proceeding begun for foreclosure of any such mortgage after the expiration of, in the case of a mortgage in which no term of the mortgage is stated, 35 years from the recording of the mortgage or, in the case of a mortgage in which the term or maturity date of the mortgage is stated, 5 years from the expiration of the term or from the maturity date, unless an extension of the mortgage, or an acknowledgment or affidavit that the mortgage is not satisfied, is recorded before the expiration of such period. In case an extension of the mortgage or the acknowledgment or affidavit is so recorded, the period shall continue until 5 years shall have elapsed during which there is not recorded any further extension of the mortgage or acknowledgment or affidavit that the mortgage is not satisfied. The period shall not be extended by reason of non-residence or disability of any person interested in the mortgage or the real estate, or by any partial payment, agreement, extension, acknowledgment, affidavit or other action not meeting the requirements of this section and sections 34 and 35. Upon the expiration of the period provided herein, the mortgage shall be considered discharged for all purposes without the necessity of further action by the owner of the equity of redemption or any other persons having an interest in the mortgaged property and, in the case of registered land, upon the payment of the fee for the recording of a discharge, the mortgage shall be marked as discharged on the relevant memorandum of encumbrances in the same manner as for any other mortgage duly discharged.
The first thing you want to do is check the mortgage for a maturity date or payment period (e.g., 120 equal monthly installments). If a maturity date is specified or can be determined from the payment provisions of the mortgage and 5 years from the maturity date have passed, for all intents and purposes, the mortgage will be considered discharged. Similarly, if no maturity is stated or can be determined and 35 years from the recording of the mortgage has passed, the mortgage will be considered discharged. Unless the property is registered land, nothing further need be done. In the event of registered land, one must pay the appropriate filing fee to have the mortgage removed from the Certificate of Title.
Question: The Seller wants to execute the Deed under Power of Attorney. Is this acceptable?
Answer: As long as the Power of Attorney authorizes the Attorney in Fact to sell real property and to execute and deliver a deed, the Deed may be executed under the Power of Attorney. That being said, careful review of the Power of Attorney is necessary. Things to be mindful of are:
(i) Whether or not the Power of Attorney is durable (i.e., does it survive the disability and/or incapacity of the Principal?)
(ii) Is the Power of Attorney effective at the time of the conveyance (i.e., the Power of Attorney should be carefully reviewed to make sure that it is not a “springing Power of Attorney” — one that does not “spring” into effect until some event/occurrence, usually the incapacity of the Principal, which would require a Certification by a Physician as to the disability/incapacity of the Principal).
Keep in mind that a power of attorney that permits the attorney in fact to “sell” does not include the power to mortgage.
The original Power of Attorney, together with the original Affidavit Regarding Power of Attorney (sometimes also referred to as an Affidavit of Non-Revocation), should be recorded with the Deed. See G.L.c. 201B, §5 for the requirements of the accompanying affidavit.
Question: I have a Deed executed under a Power of Attorney by the Attorney in Fact to himself. The Power of Attorney authorizes the Attorney in Fact to sell the property and to execute and deliver a Deed. Is this acceptable?
Answer: Under this situation where self-dealing is involved, a Deed executed under a Power of Attorney by the Attorney in Fact to himself may only be accepted if the Power of Attorney specifically authorizes self-dealing. When in doubt, please forward the Power of Attorney to the Legal Department for further review and approval.
Question: I have a Deed that has an acknowledgement date after the date of its execution. How do I resolve this issue?
Answer: REBA Title Standard No. 16: Acknowledgments provides as follows:
1. An acknowledgement dated before or after the date of execution appearing on the instrument (regardless of length of time) is not on that account defective.
See Dresel v. Jordan, 104 Mass. 407 and Ashkenazy v. R.M. Bradley & Co., 328 Mass. 242, 103 N.E.2d 251 as to prior dates. See Smith v. Porter, 76 Mass. (10 Gray) 66 as to later dates. See also M.G.L. c. 184, §24 for acknowledgements over 10 years old.
Question: What other requirements concerning acknowledgments should I be aware of?
Answer: REBA Title Standard No. 16 sets out other important requirements, namely:
2. An acknowledgement
(a) by either spouse alone to a deed of property held as tenants by the entirety
(b) by one of the partners as an individual to a deed from a partnership
(c) by an executing officer thereof, as an individual, to a deed from a corporation
is not on that account defective provided such person is not a grantee.
See M.G.L. c. 183, §§30 and 31, and M.G.L. c. 108A, §§9 and 10. But see Gordon v. Gordon, 8 Mass.App.Ct. 865, 398 N.E.2d 497, as to acknowledgment by wife on deed from husband and wife to wife.
3. An acknowledgement taken in another state before a notary public without a notarial seal or stamp is impressed or affixed to the instrument and without any certificate of authority is not on that account defective.
See M.G.L. c. 183, §30 and Ashkenazy v. R.M. Bradley & Co., 328 Mass. 242, 103 N.E.2d 251.
4. An acknowledgement taken outside of the United States may be made
(a) before a notary public or justice of the peace provided that the identity and office of the notary public or justice of the peace are authenticated by a certificate described in M.G.L. c. 183, §33, sometimes called an “apostille”; issued by the competent authority of the country from which the document emanates. The apostille need not be in English
(b) before a commissioner appointed by the governor of the Commonwealth of Massachusetts pursuant to M.G.L. c. 222
(c) before an ambassador, minister, consul, vice consul, charge d'affaires or consular officer or agent of the United Stated accredited to the country where the acknowledgment is made, provided that it is certified by him/her under his/her seal of office.
5. Persons serving in or with the armed forces of the United States, or their dependents, wherever located, may acknowledge any instrument before any commissioned officer in the active service of the armed forces. Such instrument must contain a statement that the person executing the instrument is serving in or with the armed forces, and in either case shall include the serial number of the person serving.
See M.G.L. c. 222 §11.
6. An acknowledgment the form of which substantially conforms with M.G.L. c. 183 §§29, 30, 33 and 42 or M.G.L. c. 222, §11 and applicable case law but does not strictly comply with Executive Order 455 (03-13) is not on that account defective.
Executive Order 455 (03-13) imposes on notaries commissioned in Massachusetts requirements including mandatory forms of acknowledgment, procedures for verifying identity of parties and taking acknowledgments, and requirements for record-keeping. Failure to comply with this Order does not affect the validity or recordability of deeds and other instruments.
Adopted November 11, 1974
Amended May 15, 2000 (To correct grammar in paragraph 2 and to delete apparent requirement of a seal for out-of-state notary in paragraph 3.)
Amended May 10, 2004 (To add paragraphs 4, 5 and 6 and related Comments)
Copyright, The Real Estate Bar Association for Massachusetts
Question: I have a Deed which contains the “old” acknowledgment clause rather than the “new” acknowledgment clause. Do I need a Confirmatory Deed?
Answer: No. Failure to comply with Governor Romney’s Executive Order 455 (03-13) Standards of Conduct for Notaries Public does not affect the validity of recordable documents. (See REBA Title Standard Clause 6 above.)
Question: I have a Deed that is being executed in a foreign country. Is this acceptable?
Answer: REBA Title Standard No. 16, cited above addresses this question. The basis of the title standard is M.G.L.A. 183 §30, that provides as follows:
The acknowledgment of a deed or other written instrument required to be acknowledged shall be by one or more of the grantors or by the attorney executing it. The officer before whom the acknowledgment is made shall endorse upon or annex to the instrument a certificate thereof. Such acknowledgment may be made
(a) If within the commonwealth, before a justice of the peace or notary public.
(b) If without the commonwealth, in any state, territory, district or dependency of the United States, before a justice of the peace, notary public, magistrate or commissioner appointed therefor by the governor of this commonwealth, or, if a certificate of authority in the form prescribed by section thirty-three is attached thereto, before any other officer therein authorized to take acknowledgments of deeds.
(c) If without the United States or any dependency thereof, before a justice of the peace, notary, magistrate or commissioner as above provided, or before an ambassador, minister, consul, vice consul, charge d'affaires or consular officer or agent of the United States accredited to the country where the acknowledgment is made; if made before an ambassador or other official of the United States, it shall be certified by him under his seal of office.
Note the following concerning the foregoing statute:
If the Deed is executed at the United States Embassy in the country of execution, nothing further is required.
If the Deed is executed by a Notary Public in the country of execution, the Deed will need to be accompanied by an Apostille, a Certificate issued by the competent authority of the country from which the document emanates which authenticates the identity and office of the notary public or justice of the peace pursuant to M.G.L. c. 183 §33. (For a model Certificate, see Land Court Guideline No. 2.)
If the Deed or acknowledgment is in a foreign language, a certified translation must be attached to the Deed and recorded therewith.