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Legislation Passed to Ease the Registered Land Withdrawal Process

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| Legal Advisory

On August 13, 2014, as part of Chapter 287 of the Acts of 2014, Governor Deval Patrick enacted legislation to expand landowners’ rights to withdraw land from Land Court registration in Massachusetts.

Massachusetts has a dual system for tracking title to land, consisting of registered land (which is essentially a Torrens System of land registration) and unregistered land. Registered land documents are organized within each registry district of the Massachusetts Land Court in accordance with the identity of the property to which they relate, and each property has its own certificate of title upon which all documents encumbering the property are noted. Title to registered land is essentially “insured” by the Commonwealth of Massachusetts through the issuance of the certificate of title. This is unlike unregistered land, which is based upon grantor-grantee indices without regard to the property affected and does not have the backing of the Commonwealth.

Unfortunately, notwithstanding the benefits of registered land, dealing with registered land can also involve additional costs and delays, particularly in the event of new subdivisions or the creation of condominiums. As a result, the legal community has sought ways for landowners to be able to remove property from the land registration system if they so desire.

The legislature amended Massachusetts General Laws Chapter 185, Section 52 in two respects, easing the ability of an owner of registered land to obtain Land Court approval of a notice of voluntary withdrawal of registered land. First, Section 52(i) now provides that a notice of voluntary withdrawal will be approved if the registered land constitutes less than all of the total area of a single parcel or of two or more contiguous parcels in common ownership. Previously, approval pursuant to this subsection required that the registered land constitute less than 50% of the total area. Second, a fifth basis for approval has been inserted. Section 52(iv) now permits approval of a notice of voluntary withdrawal if the registered land is improved with any occupied building that is not used or occupied as, or in connection with, or designed or intended for use as, or in connection with, a 1-to-4 family residential dwelling. Commercial owners of registered land now have a far less burdensome avenue to pursue if they wish to withdraw their land from registration.

This legislation also simplifies withdrawal from registration in the context of condominium development. Section 81 of Massachusetts General Laws Chapter 183A, the condominium statute, has been amended to allow an owner of land, which consists of registered land in whole or in part, to withdraw the land from registration by filing a master deed with the appropriate registry of deeds. Previously, this method of withdrawal was available only if the land consisted only partially of registered land.

Overall, this legislation benefits owners of registered land in Massachusetts, particularly in the commercial and condominium development contexts, by facilitating withdrawal of their land from the Land Court registration system. This should reduce the transactional costs and delays that are frequently associated with transactions involving registered land.

This advisory was prepared by Beth H. Mitchell in the Real Estate and Finance practice group at Nutter McClennen & Fish LLP. For more information, please contact Beth or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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