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Thursday, October 19, 2017

New Deed Indexing Standards Coming to a Registry Near You

By Richard P. Howe, Jr.

This January, the Massachusetts Registers and Assistant Registers of Deeds Association will release a new version of the Deed
Indexing Standards for the Commonwealth of Massachusetts. This update will reflect statutory, judicial and technological changes that have occurred over the past decade while retaining much from prior versions of the standards.

Back in the early 1990s, registries of deeds across the country increasingly used computers to perform core functions such as index creation and document reproduction. Because registries back then operated more or less independently, there was considerable variety in the computer systems. At the same time, many in the conveyancing bar shifted from local to regional practices which required research and recordings at multiple registries. Finding it difficult enough to master one computer system, registry users began demanding standardization across registries.

Realizing that standardization required common rules of data creation as well as common platforms, the Registers Association formed a standardization committee in 1997. After many meetings and considerable input from users, the standardization committee issued the first version of the Massachusetts Deeds Indexing Standards on January 1, 2000.

That initial version of the standards dealt almost exclusively with how names and addresses were entered in the index. Subsequent versions, issued at the start of 2006 and 2008, grew to include other topics that frequently arose in the recording process. The 2018 version continues that trend.

Here are some highlights: As before, names and addresses will be entered in the index just as they appear in the document presented for recording. However, mandatory abbreviations such as RD for Road or INC for Incorporated are still required. One notable change is in the treatment of punctuation marks in names. Formerly, only hyphens were entered in the index. Now, all punctuation marks except for apostrophes will be included. For example, Amazon.com will be indexed as AMAZON.COM.

The permissive approach towards acknowledgements taken outside of Massachusetts continues. When a document is acknowledged in another state or country, the registry will assume compliance with the law of that other jurisdiction and will record the document without further inquiry.
Attorney affidavits under MGL c.183, s.5B, were the subject of debate among registers. Some cited “183/5B” affidavits that encumbered property rather than clarified title, and questioned whether such a document should be recorded. However, because the statute grants authority for making that determination to the lawyer certifying the document, these affidavits will be recorded as long as they are in the proper form.

A long-standing registry rule is that only original documents (or certified copies) may be recorded, but technology is making it increasingly difficult to determine what is an original document. A number of governmental entities now produce documents that are only electronic, leaving it to customers to print the electronic document and present that tangible object to the registry for recording. Under the new standards, such a document would be recordable.

Another long-standing rule modified in 2018 involves certified copies. The person recording the document will now be permitted to annotate its bottom margin with the book and page number of another document to which a marginal reference is to be made.

The new standards seek to clarify the applicability of the deeds excise tax to deeds recorded pursuant to a divorce decree. When such a deed constitutes a division of marital property rather than a sale of an interest in the property, the transfer is not a taxable event even though consideration in excess of $100 may be stated. To assist the registry in making this determination, the deed should specifically state that the consideration indicated is a division of marital assets and list the docket number of the divorce case.

 Electronic recording has its own section in the new standards, incorporating many of the requirements contained in the submitter agreements already used by some registries. Other sections reflect recent statutory changes such as foreclosures, multifunction documents, homestead and time of recording.

Finally, the new standards include a separate section on liens to emphasize that absent some statutory authority to the contrary as in the case of mechanic’s liens or condominium fees, judicial authorization is required before a document creating an encumbrance may be recorded.
The new standards are scheduled to take effect on January 1, 2018. Between now and then, the Registers Association welcomes feedback on the standards which are available on the REBA website by clicking here

Please send your comments to me at richard.howe@sec.state.ma.us.

Dick Howe’s column, “From the Recording Desk...,” is a regular feature of REBA News.  Dick has served as register of deeds in the Middlesex North Registry since 1995.  He is a frequent commentator on land records issues and real estate news.  Dick can be contacted by email at richard.howe@sec.state.ma.us.


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