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Massachusetts Agencies

When Did They Change That Law?

Articles from The Massachusetts Focus

Newsletter of Stewart Title Guaranty Company, Massachusetts Offices
Winter 2006, Volume 5, Number 1

When Did They Change That Law? (The Sequel)
by Gary F. Casaly, Special Counsel

[This article is a continuation of the article "When Did They Change That Law?" in Vol. 4, No. 4 of The Massachusetts Focus.]


Continuing on with my discussion in the last newsletter, another law — or really a rule of court — that has changed or been modified in the past few years has to do with conveyances by spouses during the pendency of a divorce. This is Rule 411. Lynne Murphy Breen’s article in this issue of The Massachusetts Focus goes into detail on this rule, but what I’m focusing on here is the change that the rule has made to this area of the law.

Rule 411 puts in place an “automatic restraining order” that prohibits a party in a pending divorce from selling, transferring, encumbering, concealing, assigning, removing or in any way disposing of real or personal property unless both parties have agreed otherwise or the court has modified the restraining order accordingly. There are exceptions that put transfers beyond the scope of the restraining order (e.g., business transfers and those necessary for reasonable expenses for living), but Lynne speaks to those issues in more detail in "Quarterly Questions and Answers" in this newsletter. The point that I want to make is that the rule is not entirely new, but is really a change to an existing tenet previously announced by the court.

It is provided under G.L.c. 109A, §9 that if a conveyance is fraudulent a creditor may, as against any person except a purchaser for fair consideration without knowledge of the fraud, have the transaction set aside. Fair consideration is defined as being given when property is received in good faith to secure a debt (e.g., a mortgage) in an amount not disproportionately small compared with the value of the property. G.L.c 109A, §3. (A purchaser who has given less than fair consideration may, nonetheless, retain the property as security provided there is no actual fraudulent intent. See G.L.c. 109A, §9(2).) A mortgagee who falls within the parameters of the statute would be protected by its provisions. One that falls outside its ambit would not (and would not be covered under the policy either because of the creditors’ rights exclusion).

In Yacobian v. Yacobian 24 Mass.App.Ct. 946, 508 N.E.2d 1389 (1987) the court said that “[a] spouse in circumstances where divorce proceedings are ‘imminent’ may qualify as a creditor under c. 109A and may complain of conveyances designed to frustrate the right to alimony or assignment of property. * * * Marriage, alone, however, does not make a spouse a potential creditor under G.L.c. 109A, and divorce proceedings do not subject all transfers made during marriage to retrospective scrutiny under that statute.” So, even before the adoption of Rule 411, there was some significant impact of a divorce upon one spouse’s ability to transfer property. The rule added some more “teeth” to the effect of a transfer and imposed an additional element of a restraining order. 


Another law that was changed — or a least in court dicta seems to have been changed — has to do with approval of a subdivision plan. The subdivision control law, G.L.c. 41, 81L, defines an applicant who submits a subdivision plan as "an owner" of the property being subdivided, but this has been interpreted to mean all the owners. In Kuklinska v. Planning Board of Wakefield, 357 Mass. 123 (1970), the court said that where part of the land shown on a subdivision plan was owned by someone other than the applicant, the planning board's approval of the plan ought to be annulled and rescinded, where the local regulations of that board followed the statutory definition. 

This “all ownership” rule raises an issue not only when the applicant does not own all the property shown on the subdivision plan, but also when the access to the subdivided property is by way of an easement over another person’s land. Where the access route is included within the subdivided property, and therefore the fee title to that land is vested in another, the “all ownership” rule is broken, and denial of approval of the plan is warranted.[1] This was the situation in Silva v. Planning Board of Somerset, 34 Mass.App.Ct. (1993) where a subdivision approval was being challenged by a party who claimed that the subdivision should not have been granted because he owned a portion of the street included within the subdivision by reason of being an abutter to that street. (See G.L.c. 183, 58.) The lower court had ruled that the abutter's interest in the street did not prevent the approval of the subdivision plan. The Appeals Court reversed (essentially holding that the abutter's interest was sufficient to derail the subdivision), but the court made this interesting comment in its decision:

Claiming ownership in part of the proposed street shown on the subdivision plan, the plaintiff contends that the board's approval of the subdivision was a nullity because he was not listed as a record owner of the premises on the plan and did not join in the application for approval of the subdivision. The board's regulations required the subdivider to be the owner or his agent (see Somerset planning board Rules and Regulations Governing the Subdivision of Land  II A, definition of “subdivider” [1974]) and the plan to identify the record owners of the site (Somerset planning board regulation  III B 2.b). Noncompliance with similar regulations has been determined to be a justification for invalidating a planning board's approval of a subdivision plan. Kuklinska v. Planning Bd. of Wakefield, 357 Mass. 123, 129 (1970). Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. 104, 106 107 (1991). A planning board may, however, waive strict compliance with its regulations, provided such waiver “is in the public interest and not inconsistent with the intent and purpose of the subdivision control law.” G. L. c. 41, §81R, as appearing in St. 1953, c. 674,  7. Hahn v. Planning Bd. of Stoughton, 24 Mass. App. Ct. 553, 556 (1987). In Batchelder, we held, however, that the planning board could not waive its regulation requiring the record owner to be the applicant for plan approval because the waiver would undermine a means of achieving a principal objective of the Subdivision Control Law — securing from the owner of record a covenant in order to ensure installation of adequate municipal services. Batchelder v. Planning Bd. of Yarmouth, 31 Mass. App. Ct. at 108 109. However, in this case, unlike the Batchelder case, where the abutter challenged the applicant’s title to the entire locus, the plaintiff claims an interest only in the proposed street. Even if the plaintiff owns a fee simple interest in the proposed street, at the very least the Cabrals as grantees of land abutting the proposed street would have an easement in the way and the right to make reasonable improvements in the way without the consent of the plaintiff. Murphy v. Mart Realty of Brockton, Inc., 348 Mass. 675, 677 – 679 (1965). LeBlanc v. Board of Appeals of Danvers, 32 Mass. App. Ct. 760, 764 n.7 (1992). Whether in these circumstances the planning board could waive compliance with this regulation is an issue that we need not address, because there is nothing in the record which indicates that the planning board’s approval of the plan was based on a conscious waiver of this regulation or upon its rejection of the plaintiff’s claim of an ownership interest in the proposed street. See Meyer v. Planning Bd. of Westport, 29 Mass. App. Ct. 167, 169 – 172 (1990).

What the court is saying here is that where the developer “would have an easement in the way and the right to make reasonable improvements in the way without the consent of the [party owning the fee]” he would have control over the road and the planning board could reasonably waive its regulation as to the “all ownership” rule in those limited circumstances. This does not mean that the planning board must approve the plan; it means that the planning board has the authority to waive the “all ownership” rule, if it is so inclined.[2] The holding in Silva seems to have changed — or at least clarified — the law announced in Batchelder as to the “all ownership” rule and the ability of the planning board to waive it, at least when the issue involves the question of access over another person’s property by way of a valid easement.


When it comes to the release of a homestead, particularly in connection with a mortgage, the law here changed some time ago, but there seems to be near-universal confusion as to what the law now requires (or does not require). Where there is a homestead the execution of a mortgage “containing a release [of the homestead]” will result in the homestead being subordinated to the mortgage, but kept in place as to the rest of the world. The case of Atlantic Savings Bank v. Metropolitan Bank and Trust Company, 9 Mass.App.Ct. 286, 400 N.E.2d 1290 (1980) sheds light on the matter. In Atlantic Savings Bank, Mr. and Mrs. McHardy, after having granted a first mortgage to Atlantic Savings Bank, made a joint[3] declaration of homestead on their property in 1976. Thereafter, they granted a mortgage to Metropolitan Bank and Trust Company. Although the second mortgage was executed by both parties, it did not contain a “release” of the homestead, or more accurately it did not contain words that stated that the homestead was being released. After a foreclosure by Atlantic Savings Bank there was a surplus. The question was whether the excess funds generated by the foreclosure sale should be payable to the McHardys, based on the fact that they still held a homestead which had priority over the mortgage of Metropolitan Bank and Trust Company, or whether that bank was entitled to the surplus based on some theory that the homestead had been effectively released with respect to the second mortgage.

When the second mortgage was executed the provisions of the homestead statute were as follows:

§6. Property which is subject to a mortgage executed before an estate of homestead was acquired therein, or executed afterward and containing a release thereof, shall be subject to an estate of homestead, except as against the mortgage (sic)[4] and those claiming under him, in the same manner as if there were no such mortgage.

§7. No conveyance of property in which an estate of homestead exists, and no release or waiver of such estate, shall convey the part so held and exempted, or defeat the right of the owner or of his wife[5] and children to a homestead therein, unless such conveyance is by a deed signed by the wife, she being competent so to act, or unless such right is released as provided in chapter two hundred and nine; but a deed duly executed without such signature or release shall be valid to pass, according to its terms, any title or interest in the property beyond the estate of homestead.

The McHardys had taken the position in Atlantic Savings Bank that the homestead had not been effectively released in the mortgage to Metropolitan Bank & Trust Company because the instrument did not contain words of “release” with respect to the homestead.

The court said this:

The argument overlooks the features of the mortgage, as well as the provisions of [§7] . . . which defined the term “release” in [§6]. [S]ection [7] expressly provided that the spouse’s signature on a deed was sufficient to release her rights [in a homestead]. * * * The word “deed” as used in §7 includes a mortgage. [Citations omitted].

In our opinion, this expedited method for release changed the preexisting case law (relied upon by the defendants) which held, based on outmoded concepts of coverture, that in order to bar a wife’s right of homestead not only was the wife required to join with her husband in the conveyance by executing the instrument, but also the conveyance, so executed, must have contained apt words expressly releasing her homestead right.[6]

Although the dispute in the case revolved around the form that a release of the right of homestead should take, the decision clearly focused on and required the spouse’s signature on the mortgage in order to release that right.

Section 6 of the statute is the same today as it was at the time of the decision in Atlantic Savings Bank (except for a minor corrective change). Section 7 now reads as follows:

An estate of homestead created under section two may be terminated during the lifetime of the owner by either of the following methods:—

(1) a deed conveying the property in which an estate of homestead exists, signed by the owner and the owner’s spouse, if any, which does not specifically reserve said right of homestead; or by

(2) a release of the estate of homestead, duly signed, sealed and acknowledged by the owner and the owner’s spouse, if any, and recorded with the registry of deeds for the county or district in which the property is located.

Although the provisions of the present Section 7 are somewhat different than those in effect at the time of the decision in Atlantic Savings Bank, it is clear that the effect is the same — requiring the spouse to join in the mortgage to effectively release the estate of homestead — especially in view of the language in the decision that “the provisions of [§7] . . . define[] the term ‘release’ as used in [§6].” As in the prior version of Section 7 the word “release” is used — and also appears in Section 6 — so there is no doubt that such a release must satisfy the requirements of Atlantic Savings Bank, namely that the signature of both spouses, and not simply the signature or release of the spouse who owns the property, must appear on the instrument.

Although §6 has been in place for nearly 150 years it is rarely cited and some conveyancers ignore it and require an outright release of the homestead under §7, with the subsequent execution of a mortgage followed by a new homestead declaration to address that which §6 already provides for. This course, however, would seem to be fraught with trouble. It essentially eliminates the protection against general creditors that was in place on account of the original homestead[7] and allows the claims of those creditors to flood in and take a priority position, not over the mortgage, but over the householder’s interest. Because such a course of action is not necessary in order for the mortgagee to protect itself, its use would seem to subject the party requiring it to liability.

And, although the “spouse’s signature alone” rule with regard to the release of a homestead has been law for more than a quarter century, some conveyancers are apparently unaware of this change and feel that the absence of words of release where the spouse has nonetheless signed creates an issue.

1 The opposite situation should be distinguished. In Hahn v. Planning Board of Stoughton, 24 Mass.App.Ct. 553 (1987) the applicant owned the land shown on the subdivision plan, but there was an easement that traversed the property. When the easement holder challenged the subdivision approval, claiming that the applicant was not the "owner" because of the existing servitude, the court said, "Contrary to the plaintiff 's contention, the [applicant] is a proper applicant even if the easement [that traverses the property] is in full force. G.L.c. 41, '81L defines a subdivision applicant as an 'owner or his agent' * * * The board's regulations define the 'owner' as the individual or individuals 'holding title . . . as shown by the record' in the appropriate registry of deeds. The [applicant] is the record title holder and therefore, may apply for subdivision approval. See and compare Kuklinska v. Planning Board of Wakefield, 357 Mass. 123 (1970). " [Back to Text]

2 In Silva the court said “we need not address [the question], because there is nothing in the record which indicates that the planning board =s approval of the plan was based on a conscious waiver of this regulation . . . .” [Back to Text]

3 Although the court intimated that a joint declaration would result in no homestead being created, it indicated that it was not necessary to decide the issue inasmuch as it concluded that the homestead, if it existed, had been effectively released. In any event, under the statute being construed the wife could not declare a homestead, such right being exclusively held by the husband under the law in effect at the time. Moreover, the question was ultimately answered in a Dwyer v. Cempellin, 424 Mass. 26, 673 N.E.2d 863 (1996), wherein the Supreme Judicial Court ruled that the first to sign a joint declaration of homestead would be considered to be the declarant. [Back to Text]

4 This typographical error was corrected by Section 165 of Chapter 557 of the Acts of 1986, which replaced the word “mortgage” with “mortgagee.” The court in Atlantic Savings Bank interpreted the language as it was obviously intended to read, quoting the section as containing the latter term. [Back to Text]

5 The statute under consideration in Atlantic Savings Bank provided that only the husband could declare a homestead and that it was, therefore, necessary for the wife to join in the release. Under today’s version of the legislation either spouse — but still only one — can declare a homestead. [Back to Text]

6 The court also noted in this particular case that since the wife had joined in the mortgage in the granting clause “[her] execution of the mortgage, taken together with its covenants (especially the covenants pertaining to seisin and freedom from encumbrances), was sufficient to release her interest in the homestead without the need for specific words of release.” [Back to Text]

7 Under G.L.c. 188, §1, there is no protection afforded by the homestead with respect to a debt contracted for prior to the acquisition of the homestead. Upon the release of the old homestead all debts then in existence will, by definition, be debts contracted for before the acquisition of the new homestead and will, therefore, have a priority position over the householder’s interest. [Back to Text]