CONVEYANCING 2012 FINAL EXAM STUDY GUIDE

RELEVANT TOPICS 1. Purchase and Sale Agreements Both parties have their own desires to complete the agreement and obligations of the parties are subject to contingencies (mortgages). P&S Agreements serve several functions: i. Clearly defined deal (for whom, by when) ii. Outlines the mechanics to implement the transaction iii. Defines the parties, obligations, remedies if party defaults iv. Sets fourth any post-closing obligations See example form of a PSA. 2. Manner of Taking Title by Multiple Grantees The manner by which the grantees take title should be clearly indicated. How to take title with two or more individuals? i. Tenancy in Common 1. X A, B + C (t/c) 2. A (1/3), B (1/3), C (1/3) 3. A D 4. So now its B, C, D (t/c) a. Undivided interest in the whole property. b. Cane be conveyed to a third party without consent or participation of the other parties. ii. Joint Tenants with Rights of Survivorship 1. X A + B (j/t with r/s) 2. A + B a. If A dies, automatically passes to B. b. Whoever is the last one standing becomes the sole owner. c. Not conveyed by will or intestacy. iii. Tenancy by Entirety 1. X H & W, (t/e)

2. One of the partners cannot deed out property. 3. Can only be by spouses. 4. Together, they can convey to another party. 5. If they get divorced, they become tenants in common. 6. Creditor protection by non-debtor spouse. 3. Registered Land Registration of title i. Occurs when the Land Court, after having the title exhaustively searched by a Court-appointed examiner, and after due process is afforded to all interested parties, reviews and then adjudicates and decrees the state of the title. ii. Thereafter the current state of the title, as it is sequentially updated by registration of future transactions, is embodied in a certificate of title which not only evidences title, but is in fact the guarantee of title, subject only to the exceptions provided by statute and matters of federal law. iii. The initial decree of registration and the subsequent certificate of title are in rem, that is, against the whole world. A title, which according to the evidence of documents in the traditional recording system may be insufficient to support a conclusion of ownership, or which is clearly defective, may, through the adjudicatory process of registration, be made good and marketable. iv. Court employs a staff of engineers and surveyors to help accomplish the task of determining land title and boundaries. Certificates of Title i. Certification of title shall include a title examination which covers a period of at least fifty years with the earliest instrument being a warranty or quitclaim deed which on its face does not suggest a defect in said title; provided, however, that in the case of registered land, it shall be sufficient to start the said examination with the present owners certificate of title issued by the land court. ii. The certification shall include a statement that at the time of recording the mortgage, the mortgagor holds goods and sufficient record title to the mortgaged premises free from all encumbrances, and that the mortgagee holds a good and sufficient record first mortgage to the property. iii. A registered land Certificate of Title holder, who takes title for value and in good faith, holds such Certificate and the title represented thereby free from all encumbrances except those noted on the certificate, and any of a certain number of encumbrances then enumerated in that section.

 Easements/Rights of Way i. If an easement is not expressly described on a certificate of title, an owner, in limited situations, might take his property subject to an easement at the time of purchase: 1. if there were facts described on his certificate of title which would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or 2. if the purchaser has actual knowledge of a prior unregistered interest. ii. Protection for registered land from unregistered interests No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land. 4. Easements Easement certain right to use the property of another without possessing it for a stated purpose. It can involve a general or specific portion of the property. Overloading of Easement/Improvement of Easement i. Overloading of easement an easement may have been created for one use and now be used for another. 1. Whether a change in the use of an easement is consistent with the purpose for which it was created. 2. This change includes normal future development within the scope of the basic purpose but not an abnormal development, one which actually increases the burden. ii. Improvement of an easement an owner of an easement can make repairs and improvements to the easement, provided that those repairs or improvements do not interfere with the use and enjoyment of the easement by the owner of the property through which the easement exists. iii. Improvements do not necessarily overburden an easement, so long as the improvement does not unreasonably increase the burden of the servient tenement. Easement by Estoppel/Easement of Way i. Easement by estoppel When a property owner misrepresents the existence of an easement while selling a property and does not include an express easement in the deed to the buyer, the court may step in and create an easement. 1. Elements of easement by estoppel:

a. A property description must either contain a course bounding on a way or must refer to a plan showing that the property bounds on a way b. The way must be laid out or clearly indicated on a plan c. The chain of title must be out of the same grantor d. Rights in the way must not be reserved by the grantor. 2. When a grantor conveys land bounded on a street or way, he and those claiming under him are estopped to deny the existence of such a street or way however an easement by estoppel does not necessarily carry with it the right to use a way beyond the limits of the plaintiffs property. The determination depends on extrinsic facts, as they existed at the time of conveyance a. Consideration of the extent to which the easement is necessary to enjoyment of the plaintiffs premises b. And whether the way referred to at its distant end connected directly or indirectly with a public way Relocation of Easement i. The servient estate is permitted to relocate an easement, provided that the relocated easement affords the dominant estate benefits that are substantially similar to the original easement. ii. The changes cannot: 1. Significantly lessen he utility of the easement 2. Increase the burdens on the owner of the easement in its use and enjoyment, or 3. Frustrate the purpose for which the easement was created. Negative/Affirmative Easement i. Negative easement right to prevent another from performing an otherwise lawful activity on their property. ii. Affirmative easement the right to use anothers property for a specific purpose. iii. 30 year limitation on length 5. Derelict Fee Applies for those lots that bound on a private (or public) way. there are deeds that do not expressly state who owns the fee in an adjacent private way. In those circumstances, the law provides relief in the construction of such deeds with M.G.L. c. 183, 58, "derelict fee statute".

 every deed of real estate abutting a way includes the fee interest of the grantor in the way -- to the centerline if the grantor retains property on the other side of the way or for the full width if he does not -- unless 'the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.' The statute incorporates the basic common law principle of presumed intent with regard to conveyed land abutting an actual or contemplated way owned by the grantor. The common law presumed that the grantor intended to pass title to the center of the way. The application of the statute is retroactive, and thus applies to all deeds, including those that predate the passage of the law in 1972. 6. Restrictions/Term/Enforceability Expiration of restrictions statutory limitations on the duration of land use restrictions Restrictions unlimited as to time shall have a term of thirty-years only. A landowner may remove or prevent the enforcement of obsolete, uncertain, or unenforceable restrictions. Land use restrictions that do not contain an express limitation on duration are not enforceable after the thirty-year time limit. 7. Zoning/Checkerboarding/Freezes/Residential Lot Exemptions Zoning municipal ordinance regulates use of land, building, structures to protect general welfare and safety of occupants. Checkerboarding owner of lots will transfer half the lots into a trust and the other half into a different trust but attempt to maintain control over everything by having the beneficiary be the same person. This avoids the lands to have adjoining owners. Courts held to be a sham in order to avoid statutes. Freezes continued application of old zoning law after adoption of a new zoning law. i. five year zoning freeze ii. single family or two-family residential. iii. Shall not apply to more than three of such adjoining lots held in common ownership. Residential lot exemptions "Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land." i. Applies to vacant lots only ii. Must be a single lot

iii. Grandfathered from any future zoning law changes under perpetuity. 8. Condominiums & Cooperatives Condominiums i. Separate ownership of unit and concurrent ownership of the common elements or areas managed by an organizational structure. ii. Chapter 183A is the enabling statute; it tells you what you may do iii. A condo is created by a master deed. Requirements for a master deed is in Chapter 183A 8: 1. Must be recorded in county where the property lies 2. Master deed must be accompanied by a floor plan- showing layout of all of the units floor by floor and their dimensions and configurations (statutorily required). 3. Site Plan (requirement even though the statute d/n say so)lays out bldg and units by using elevations, i.e. so if totally destroyed you could put the bldg back in place exactly, i.e. it gives you the footprint. In other words, it sets out the elevation documentation. Site plan should also show the parking spaces assigned to each unit. Even though the site plan is not statutorily required you need it to satisfy the statute b/c it requires you to identify the location. Note: If there is no site plan, then write a title insurance policy to cover this and put in as an exception the lack of a site plan in the registry of deeds. 4. Describe the common interest and proportion of interest therein (must add up to 100%) 5. Describe the land and the bldg 6. Statement of the purposes of the bldg and each unit and the restrictions if any to their use. 7. Method of amendment of the master deed 8. Management unit or trust name. iv. On January 1st a yr after filing the papers (master deed) that created the condo, each unit receives separate assessments for taxes, i.e. tax bills given to each unit owner in their name separately v. Condo owners have their own insurance for within their unit but the condos common elements will have separate insurance. When representing a buyer of a condo unit, make sure and get the certificate of insurance. vi. As a condo owner, you have a % interest in the common elements. The % are set up by the one who creates the condo based on the value of each unit. So condo owners get an interest in their unit + common element %.

1. 5a provides that each unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed. vii. By-laws, i.e. the rules and regulations, of condo association typically is a decoration of trust. Under Chapter 183A 11, the by laws must contain method for necessary repair, method for collecting money owed by the condo owners, etc. viii. 6- Common charges assessed to the unit that remain unpaid create an automatic statutory lien on the unit. This is not a recordable lien just automatic so will not see it in the registry of deeds. When passing on title for a re-sell you will need to get a 6d cert saying that there are no unpaid common area expenses attached to that unit. ix. How do you sell a unit? 1. Deed of unit is the locus, i.e. the condo unit and must include certain elements. 2. If it is the 1st deed out for the unit, must record with the deed of unit that portion of the master deed/plan that relates to the unit that you are buying. 3. For re-sells of condo units, you d/n need copy of the master deed attached to the unit deed. 4. If passing on a re-sell want to ask for all of the condo documentsincluded should be mater deed, budget, and declaration of trust as amended, 6de cert, and master insurance policies and whatever other information can be obtained about the status of maintenance and repair of the premises and building. Cooperatives 1. Cooperative corporations for the purpose of developing, acquiring, owning, and operating multi-family housing on a cooperative plan. 2. A co-op has shares of stock- you buy into the shares of stock to purchase a particular unit. The # of shares are set for each unit. Every unit will get a proprietary lease and will get a notice of lease to record in the registry of deeds. This is how you will be able to get a mtg for the property. 3. QED - same treatment of co-ops as condos. a. 16.2 pocket part just states that Ct held that a co-op is sufficiently similar to a condo to be entitled to specific exemption of condos from the requirement of retrofit sprinklers; Also, states that MA financial institutions are authorized to make loans on coops to the same limits as loans on real estate. 4. Voting shares are proportionate to the value of their apt. in the co-ops.

5. Title to real estate is in the form of corp. So real estate taxes go to the corp. Then individual tenant/stockholders, i.e. co-op, will be assessed pro-rata for their share of the taxes. 6. A tenant stockholder may transfer his share of stock and proprietary lease only as a unit and may not transfer any of them separately. 7. Note: when conveying a co-op must deal with the above but also dont forget about good title in the co-op corp. 9. Mortgages Terminology: i. Mortgagor = borrower ii. Mortgagee = lender iii. Mortgage: transfer of interest in land for payment of loan or some other obligation. Massachusetts is a title theory state mortgagor has title right to occupy property unless a default occurs. Mortgage follows debt or note. Mortgage covenants mortgagor warranting state of title to the mortgagee Statutory condition in mortgage i. Mortgagor shall pay unto the mortgagee the principal and interest and financial obligation of the note ii. Pay real estate taxes and municipal assessments iii. Keep property insured Statutory power of sale in mortgage i. Mortgagee may sell mortgaged premises and may convey the same proper deed to purchaser absolutely and in fee simple ii. Sale will bar mortgagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity Fix rate loan monthly payment over 30 year period that amortizes Variable or adjustable loan (ARMS) i. One year or more adjustable rate mortgage ii. Interest is fixed but rate will adjust annually iii. ARM have floor and a cap Balloon Note i. Common in commercial loan situation ii. 5 or 10 year loan

iii. initial payments, very little principal is paid must have the Note itself signed! Home Equity Loan lender lends money for time to time Reverse mortgage home owner to convert equity into an income stream without taking new mortgage payments or selling the home so long as person lives in the home. Discharge of a mortgage lender must provide discharge within 45 days upon pay off. Foreclosure of mortgages i. Proper notice to parties of a default ii. 30 days notice typical; MA changed it to 150 days cure right that can be reduced to 90 days if entered into good faith alternatives of foreclosures.

RELEVANT STATUTES: Ch. 40A, 6 (4th paragraph, 1st & 2nd sentences): Zoning Freezes and vacant residential lots i. Any increase in area, frontage, width, yard, or depth requirements of a zoning ordinance or by-law shall not apply to a lot for single and two-family residential use which at the time of recording or endorsement, whichever occurs sooner was not held in common ownership with any adjoining land, conformed to then existing requirements and had less than the proposed requirement but at least five thousand square feet of area and fifty feet of frontage. ii. Any increase in area, frontage, width, yard or depth requirement of a zoning ordinance or by-law shall not apply for a period of five years from its effective date or for five years after January first, nineteen hundred and seventy-six, whichever is later, to a lot for single and two family residential use, provided the plan for such lot was recorded or endorsed and such lot was held in common ownership with any adjoining land and conformed to the existing zoning requirements as of January first, nineteen hundred and seventy-six, and had less area, frontage, width, yard or depth requirements than the newly effective zoning requirements but contained at least seven thousand five hundred square feet of area and seventy-five feet of frontage, and provided that said five year period does not commence prior to January first, nineteen hundred and seventy-six, and provided further that the provisions of this sentence shall not apply to more than three of such adjoining lots held in common ownership.

 Ch. 183, 19: Statutory Mortgage Covenants In a conveyance of real estate the words mortgage covenants shall have the full force, meaning and effect of the following words, and shall be applied and construed accordingly: The mortgagor, for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons; and that the mortgagor and his heirs, successors or assigns, in case a sale shall be made under the power of sale, will, upon request, execute, acknowledge and deliver to the purchaser or purchasers a deed or deeds of release confirming such sale; and that the mortgagee and his heirs, executors, administrators, successors and assigns are appointed and constituted the attorney or attorneys irrevocable of the said mortgagor to execute and deliver to the said purchaser a full transfer of all policies of insurance on the buildings upon the land covered by the mortgage at the time of such sale. Ch. 183, 20: Statutory Mortgage Conditions Provided, nevertheless, except as otherwise specifically stated in the mortgage, that if the mortgagor, or his heirs, executors, administrators, successors or assigns shall pay unto the mortgagee or his executors, administrators or assigns the principal and interest secured by the mortgage, and shall perform any obligation secured at the time provided in the note, mortgage or other instrument or any extension thereof, and shall perform the condition of any prior mortgage, and until such payment and performance shall pay when due and payable all taxes, charges and assessments to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein or on the debt or obligation secured thereby; shall keep the buildings on said premises insured against fire in a sum not less than the amount secured by the mortgage or as otherwise provided therein for insurance for the benefit of the mortgagee and his executors, administrators and assigns, in such form and at such insurance offices as they shall approve, and, at least two days before the expiration of any policy on said premises, shall deliver to him or them a new and sufficient policy to take the place of the one so expiring, and shall not commit or suffer any strip or waste of the mortgaged premises or any breach of any covenant contained in the mortgage or in any prior mortgage, then the mortgage deed, as also the mortgage note or notes, shall be void. Ch. 183, 21: Statutory Power of Sale But upon any default in the performance or observance of the foregoing or other condition, the mortgagee or his executors, administrators, successors or assigns may sell the mortgaged premises or such portion thereof as may remain subject to

the mortgage in case of any partial release thereof, either as a whole or in parcels, together with all improvements that may be thereon, by public auction on or near the premises then subject to the mortgage, or, if more than one parcel is then subject thereto, on or near one of said parcels, or at such place as may be designated for that purpose in the mortgage, first complying with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, and may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and such sale shall forever bar the mortgagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity. Ch. 183, 58: Derelict Fee Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line. Ch. 183, 63B: Mortgages/Good Funds No mortgagee who makes a loan to be secured by a mortgage or lien on real estate located in the commonwealth in conjunction with which, a mortgage deed evidencing the same is to be recorded in a registry of deeds or registry district in the commonwealth, shall deliver said deed or cause the same to be delivered into the possession of such registry of deeds or registry district for the purpose of the recording thereof unless prior to the time said deed is so delivered for recording, said mortgagee has caused the full amount of the proceeds of such loan due to the mortgagor pursuant to the settlement statement relevant thereto given to said mortgagor or in the instance of any such loan in which the full amount of the proceeds due to the mortgagor pursuant to the terms thereof are not to be advanced prior to said recording, so much thereof as is designated in the loan agreement, to be transferred to the mortgagor, the mortgagors attorney or the mortgagees attorney in the form of a certified check, bank treasurers check, cashiers check or by a transfer of funds between accounts within the same state or federally chartered bank or credit union, or by the funds-transfer system owned and operated by the Federal Reserve Banks, or by a transfer of funds processed by an automated clearinghouse; provided, however, that neither the mortgagors attorney or the mortgagees attorney shall be required to make disbursements or deliver said proceeds to the mortgagor

in such form; provided, however, that the provisions of this section shall not apply to the commonwealth, its agencies or political subdivisions. Ch. 183A, 3: Condominium Unit/Real Estate Each unit together with its undivided interest in the common areas and facilities, whether or not such unit is built on owned or leased land shall constitute real estate, and may be the subject of demise, devise, gift, mortgage, ownership, possession, sale, trust, the laws of descent and distribution and all other rights incidental to the holding of real estate as if it were sole and entirely independent of the other units in the condominium of which it forms a part. Ch. 183A, 14: Condominium Unit/Real Estate Taxation Each unit and its interest in the common areas and facilities shall be considered an individual parcel of real estate for the assessment and collection of real estate taxes but the common areas and facilities, the building and the condominium shall not be deemed to be a taxable parcel. Except as provided in section 53E3/4 of chapter 44 and section 127B1/2 of chapter 111, betterment assessments or portions thereof, annual sewer use charges, water rates and charges and all other assessments, or portions thereof, rates and charges of every nature due to a city, town or district with respect to the condominium or any part thereof, other than real estate taxes, may be charged or assessed to the organization of unit owners; provided, however, that any lien of the city, town or district provided by law therefor shall attach to the units in proportion to the percentages, set forth in the master deed on record, of the undivided interests of the respective units in the common areas and facilities. Ch. 184, 7: Tenancy in Common/Joint Tenancy i. A conveyance or devise of land to two or more persons or to husband and wife, except a mortgage or a devise or conveyance in trust, shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy. A devise of land to a person and his spouse shall, if the instrument creating the devise expressly so states, vest in the devisees a tenancy by the entirety. ii. A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety. In a conveyance or devise to three or more persons, words creating a joint tenancy shall be construed as applying to all of the grantees, or devisees, regardless of marital status, unless a contrary intent appears from the tenor of the instrument.

iii. A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common. Ch. 184, 23: Restrictions/Term Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. This section shall not apply to conditions or restrictions existing on July sixteenth, eighteen hundred and eighty-seven, to those contained in a deed, grant or gift of the commonwealth, or to those having the benefit of section thirty-two. Ch. 184, 27: Restrictions/Enforceability No restriction imposed after December thirty-first, nineteen hundred and sixty-one shall be enforceable: i. unless the person seeking enforcement 1. is a party to the instrument imposing the restriction and it is stated to be for his benefit or is entitled to such benefit as a successor to such party, or 2. is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefited, and ii. after thirty years from the imposition of the restriction, unless 1. the restriction is imposed as part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways, and provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record, at the time of recording of the extension, of fifty per cent or more of the restricted area in which the subject parcel is located, and an extension in accordance with such provision is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument and names or is signed by one or more of the persons appearing of record to own the subject parcel at the time of such recording, and in case of such recording, twenty years, or the specified extension term if less than twenty years, has not expired after the recording of any such extension without the recording of a further like extension; or 2. in the case of any other restriction, a notice of restriction is recorded before the expiration of the thirty years, and in case of such recording, twenty years have not expired after

the recording of any notice of restriction without the recording of a further notice of restriction. iii. A notice of restriction under this section shall not extend the period of enforceability unless it 1. is signed by a person then entitled of record to the benefit of the restriction and describes his benefited land, if any, 2. describes the subject parcel, 3. names one or more of the persons appearing of record to own the subject parcel at the time, and 4. specifies the instrument imposing the restriction and its place of record in the public records. Ch. 185, 46: Registered Land/Certificates of Title Every plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate, and any of the following encumbrances which may be existing: i. (1) Liens, claims or rights arising or existing under the laws or constitution of the United States or the statutes of this commonwealth which are not by law required to appear of record in the registry of deeds in order to be valid against subsequent purchasers or encumbrances of record. ii. (2) Taxes, within three years after they have been committed to the collector. iii. (3) Any highway, town way, or any private way laid out under section twenty-one of chapter eighty-two, if the certificate of title does not state that the boundary of such way has been determined. iv. (4) Any lease for a term not exceeding seven years. ( v. 5) Any liability to assessment for betterments or other statutory liability, except for taxes payable to the commonwealth, which attaches to land in the commonwealth as a lien; but if there are easements or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easements or rights shall remain so appurtenant notwithstanding such failure, and shall be held to pass with the land until cut off or extinguished by the registration of the servient estate, or in any other manner. vi. (6) Liens in favor of the United States for unpaid taxes arising or existing under the Internal Revenue Code of 1954 as amended from time to time and any other federal lien which may be filed in the commonwealth. vii. (7) Liens in favor of the commonwealth for unpaid taxes arising or existing under the laws of the commonwealth.

 Ch. 185, 53: Registered Land/Prescriptive Easements & Adverse Possession No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land. Ch. 209, 1: Tenancy by the Entirety The real and personal property of any person shall, upon marriage, remain the separate property of such person, and a married person may receive, receipt for, hold, manage and dispose of property, real and personal, in the same manner as if such person were sole. A husband and wife shall be equally entitled to the rents, products, income or profits and to the control, management and possession of property held by them as tenants by the entirety. The interest of a debtor spouse in property held as tenants by the entirety shall not be subject to seizure or execution by a creditor of such debtor spouse so long as such property is the principal residence of the nondebtor spouse; provided, however, both spouses shall be liable jointly or severally for debts incurred on account of necessaries furnished to either spouse or to a member of their family.

RELEVANT CASES a) Love v. Pratt a. Purchase and Sale Agreements b. Facts: seller breaches the contract and withholds buyers deposit. Buyer sues. c. Held: cannot take advantage of extension right if seller caused problem in his own volition. b) Kelly v. Marx a. Purchase and Sale Agreements b. Facts: buyer breaches contract because they couldnt sell their current home. Seller retains deposit for liquidated damages. Buyer sues. c. Held: if buyer breaches and seller keeps deposit of 5% or less, then thats fine. Seller can then sell without issue. d. Note: the liquidated damages clause in a purchase and sale agreement will be enforced where, at the time the agreement was made, potential damages were difficult to determine and the clause was a reasonable forecast of damages expected to occur in the event of breach.

c) Feldman v. Souza a. Registered Land/Easement b. Facts: buyers closed on a property and were issued a transfer certificate of title that was silent on an easement, even though they were notified by landowners about it. Buyers brought a complaint demanding their easement be noted on the certificate of title. c. Held: the buyers had notice of the existence of the easement, so they took the land subject to the easement, even though it was not mentioned in the certificate of title. d. Actual Notice Exception: theory that if youre aware of the easement, not taking certificate of title in good faith. d) Patel v. Planning Board of North Andover a. Easements by Estoppel/Easements of Way b. Facts: a subdivision was approved, but on the condition that the plan show a "stub" road running up to land in the rear owned by another party. The condition and the depiction of the road on the plan were imposed so as to "provide adequate access by connecting streets to any future subdivision on the abutting land." c. Held: that the plan was not sufficient to create an easement for the benefit of the rear land, and one would not arise by implication or necessity because "there is no claim that [the two estates] were ever held in common ownership. e) Murphy v. Mart Realty a. Easements/Overloading b. Where owners of lots and of an abutting unwrought and impassable strip appearing as a proposed street on a recorded plan conveyed the lots by deeds describing them as bounded by the proposed street shown on the plan, the grantees and through them their successors in title acquired also an easement, appurtenant to the lots, to travel over the strip. c. One having an easement of travel over a way appurtenant only to lots abutting the way and forming a small part of an area owned by him, on other parts of which were located a store and its parking space, overloaded the easement through travel over the way by persons going to and from the store and parking space, even if in so doing they passed over the abutting lots.

d. The circumstances of deeds by the owners of an unwrought proposed street and abutting lots, conveying the lots and describing them as bounded by the proposed street, did not preclude application to the deeds of the usual presumption that a deed of land described as bounded by a way owned by the grantor conveys the fee to the middle of the way. f) Guillet v. Livernois a. Easements/Improvements b. Rule: An abutter, having a right of way over an unwrought, impassable private street without a natural grade, could make it usable on a reasonable grade throughout its entire length and width although thereby the natural drainage of other abutting lots was interfered with; and in constructing the street could remove encroachments and install a sidewalk. g) MPM Builders v. Dwyer a. Purchase and Sale Agreements b. Issue: whether a servient lot owner has the right to unilaterally move an easement so long as it doesnt change the character or burden the dominant estate at its own expense. c. Held: Yes, allows unilateral movement of an easement so long as: i. It doesnt significantly lessen the utility of the easement ii. Increase the burdens on the dominant estate to use and enjoyment, or iii. Frustrate the purpose for which the easement had been established iv. All at the servient estates expense h) Carlin v. Cohen a. Easements/Relocation b. Facts: defendant proposed to replace the small summer cottage on his beachfront property with a larger house. The plaintiff sought to enjoin construction of the house in what she alleged was the location of a deeded easement providing her with access by foot over the property of the defendant to a private beach. Construction of the larger house also would interfere with the plaintiffs unobstructed view of the ocean.

c. Held: a deeded easement for beach access could be relocated pursuant to the principles annunciated by the Supreme Judicial Court in M.P.M. Builders v. Dwyer. i) Stop & Shop v. Urstadt Biddle a. Restrictions/Duration b. A land use restriction for a term of fifty years, which later was amended to delete the fifty-year term, then became a restriction "unlimited as to time," subject to the thirty-year limitation of G. L. c. 184, s. 23; and the date the thirty-year period commenced was the date on which the restriction became unlimited. c. The construction of G. L. c. 184, s. 23, to effect a thirty-year limitation on a land use restriction in circumstances in which the parties to the restriction agreed to eliminate the original fifty-year time limitation on the restriction, was not inconsistent with the Legislature's intent, did not frustrate the extension requirements of G. L. c. 184, s. 27, and did not, where the amended land use restrictions were recorded, violate public policy. j) Patterson v. Paul a. Easements/Restrictions/Duration b. All three properties in question were once held in common as part of one parcel. When the parcels were subdivided, view easements were included in the deeds of the three properties. The owners argued that the view easements were valid only for a 30-year period pursuant to Mass. Gen. Laws ch. 184, 23. The appellate court held that the view easements had taken on the defining characteristics of an affirmative easement by conferring on the neighbors the right to enter the owners' property on an annual basis in order to maintain the views if the owners failed to clear and maintain the scenic views themselves. c. Thus, the view easements did not constitute a restriction on property within the meaning of Mass. Gen. Laws ch. 184, 23, and, therefore, were not subject to that statute's 30-year limitation. The appellate court further held that the trial court properly concluded that the easements protected only such views as existed when the deeds were recorded. The language of the view easements was specific, and suggested an intent by the grantors to maintain the status quo as it existed at the time of recording.

k) DiStefano v. Town of Stoughton a. Zoning b. A judge of the Land Court correctly determined that the "checkerboard" conveyances of twenty-one of forty lots purporting to place ownership so that no two adjacent lots were held in common (an effort to perpetuate the nonconformity of the lots in anticipation of the expiration of the period of immunity from more restrictive zoning amendments) were ineffective, as all the nominal owners were under the control of a single person, and the judge correctly entered a declaratory judgment that the locus was subject to the more restrictive zoning by-law amendments.