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Thursday, August 2, 2018

Musings of a History Nerd


By Diane R. Rubin

An informal survey of lawyers at my firm indicates that a sizable percentage were history majors as
undergrads.  That includes me.  I was a U.S. history major at Brandeis University, so when Peter Wittenborg suggested that a brief history of the Land Court might be a topic of interest for my President’s message, I dove in.  

Many of us can date ourselves by where the Land Court was located when we first practiced there.  My first appearance was before Judge Scheier when the “old” Suffolk County Courthouse was its home and had been so for decades, since 1911.  At the time of my first appearance, there were only four judges of the Land Court; today there are seven.  In recent years, the Land Court has spent time in both the Edward Brooke Courthouse at New Chardon Street (1999) and on Causeway Street (2003), before settling into its current digs in the “new” Suffolk County Courthouse in Pemberton Square (2010).

 Many of us take the Land Court and its robust jurisdiction for granted, but that jurisdiction has evolved over time, just as the practice of real estate law has evolved.  The Land Court came into being in 1898 when legislation was enacted creating what was initially known as the Court of Registration with the limited purpose of providing a system of land registration, based on the Torrens System of Land Registration.  Over time, the Land Court’s jurisdiction has expanded to encompass tax foreclosure, zoning appeals, subdivision and boundary disputes.  In recent years, we have seen Land Court jurisdiction expand to include concurrent jurisdiction with the Superior Court over permit and development disputes, notary legislation, partition cases and even withdrawal of some land from registration.  Initially, Land Court decisions were reviewable on appeal to the Superior Court, but today it is a full-fledged trial court.  

The real estate bar in Massachusetts has been a long-time friend and supporter of the Land Court.  REBA (and its predecessor the Massachusetts Conveyancers Association) and the Abstract Club have collaborated with the Land Court to maintain standards of excellence as our practices have evolved into the electronic age.  I was reminded of this close relationship when Peter Wittenborg shared with me a short history of the Abstract Club.  This jam-packed booklet includes colorful entries by the esteemed Charles Rackemann, William Payson and Mark Titlebaum, dating from 1908, 1972 and 1986, respectively.  I would like to share a few excerpts.  

In 1972, William Payson provided a prescient vision when he cautioned that “Prophets of doom from time to time remind us as to what the future holds for conveyancers.  They envisage a time when almost no one will be pushing a pen in the Registry of Deeds and when all that will be necessary to obtain the pertinent facts respecting a title will be to a push a few buttons . . . and the needed information will pop out on a broad tape or tube.”  Mr. Payson did not regret this change but saw “a rosier and more productive future,” where the task of conveyancers would be “limited to matters of law, interpretation and draftsmanship.”  More than a decade later, Mark Titlebaum forecast that the principal issues before the real estate bar would be those “dealing with the environment and land use or dealing with financial instruments used in real estate transactions.” 

Both prognostications have turned out to be true.  Our practices and the Land Court have grown to address the real property concerns of our modern lives.  In preparing this brief history, I relied on and give thanks to A Brief History of the Land Court, by Glendon J. Busher, Jr. as appearing on the Land Court’s website, as well as the prodigious memory of Ed Smith, REBA’s sage long-time lobbyist.  

A partner at Prince Lobel Tye LLP and a founding chair of the Association’s condominium law and practice section, Diane Rubin currently serves as REBA’s president and is also a member of REBA Dispute Resolution’s panel of neutrals. She has extensive experience as construction and real estate counsel to private, public, and nonprofit clients including property developers and other owners, notably colleges, universities, awarding authorities, and condominium associations.  Diane can be contacted at drubin@princelobel.com

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