So, You Think You Can get a Massachusetts Document Notarized in California?

 Lisa J. Delany 

It should be easy having a Massachusetts document notarized in California; draft the document using the acknowledgment or jurat clause provided in M.G.L. c. 222, §§ 15(c) or 15(d) or the Appendix to c. 183, send to California with instructions to insert the type of government issued ID used to verify identity, instruct the notary affixes a raised seal or legible notary stamp, and request a call if there are any questions.

But why did the notary cross out the acknowledgment clause and append a California Notary Acknowledgment page with other language and without calling?

Massachusetts and California notary laws are very different.  The California notary and acknowledgment laws are in Civil Code § 1189 (2025) and the laws on jurat are in Government Code § 8202 (2025).

Its acknowledgment statute is specific and limits the notary’s role to identity verification only.  Section 1189(a)(1) requires:

Any certificate of acknowledgment taken within this state shall include a notice at the top of the certificate of acknowledgment in an enclosed box stating:  “A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document.”  This notice shall be legible.

California’s jurat law is similar, and its mandatory disclaimer in § 8202(b) requires:

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

California’s § 1189(a)(4) also imposes up to a $10,000 penalty if a notary makes a known false material statement. 

Therefore, many California notaries deem their laws must take precedence and they cannot inquire whether the document execution was voluntary or for the stated purpose nor should they certify the veracity of such material facts or accept a document certifying the contents are truthful and accurate. 

The first possible solution can be found in California’s § 1189(b) that allows using another state’s acknowledgment clause for documents to be filed in that state.  But California notaries may still refuse to use the Massachusetts acknowledgment clause, especially for documents signed representationally (trustee, corporate officer, etc.), as § 1189(b) concludes:

. . . provided the form does not require the notary to determine or certify that the signer holds a particular representative capacity or to make other determinations and certifications not allowed by California law. 

It appears the two states are in conflict as Massachusetts requires either an individual or representational acknowledgment of a voluntary act for the stated purpose or a jurat that the document is to the best of knowledge and belief, yet the California Codes prohibit the notary from making such statements.

Is there another solution?

There is actually a difference in the Massachusetts and California statutes.

Massachusetts requires the signatory, and not the notary, acknowledges that they signed the document voluntarily for its stated purpose or certifies that the contents of the document are truthful or accurate to the best of the signatory’s knowledge and belief.  Only the signatory is the required actor, not the notary, and therefore the two states are complementary and do not conflict as the Massachusetts clauses do not request any prohibited actions from California notaries.

California notaries may still balk as the Massachusetts statutes require the notary inquires whether the signatory acknowledges their voluntary action or whether the document is to the best of the signatory’s knowledge and belief and this mere inquiry could be viewed by a California notary as a prohibited action and tantamount to their making their own material certification of the signatory’s actions.

The real solution is in a single word in M.G.L. c. 222, § 15(b), which provides:

A notary public shall take the acknowledgment of the signatory or mark of persons acknowledging for themselves, or in any representational capacity by using substantially the following form . . .

Similarly, M.G.L. c. 183, § 42 provides the notary forms in the Appendix to c. 183 may be used, but “. . . those forms shall not preclude the use of any other forms lawfully used . . .”

Therefore, the suggested Massachusetts notary and jurat clauses can be edited to clarify all actions are by the signatory without the notary making any material statements of fact.  The following acknowledgement edit is suggested:

 “Then personally appeared . . . who acknowledged stated to me that the document was signed voluntarily for its stated purpose . . .” 

Or the following jurat clause edit is suggested:

“. . . and who stated, swore or affirmed to me . . .” 

Massachusetts notaries are accustomed to inquiring about the signatory’s actions, whereas California notaries may believe merely asking the intention is proscribed under their laws.  Instead, the one word change to “stated” allows the signatory to essentially say “Hi, I’m Bob. I’m the (trustee/president/etc.) of ABC, and I meant to sign this document.”  The California notary is not then making their own representations or certifications, rather they simply heard the signatory’s offered statement of intentions. 

M.G.L. c. 222, § 15(h) also provides direction to the Land Court Guidelines for documents to be filed in registered land.  The Land Court is aware of the apparent conflict between Massachusetts and California notary statutes and is available for document inquiries.

Co-chair of REBA’s Title Insurance & National Affairs Section, Lisa Delaney owns the Braintree firm Carvin & Delaney, LLC. Her practice centers on large commercial transactions where she handles complex title research and provides methodically written, detailed analysis of clear and concise facts.  She can be contacted at ldelaney@carvindelaney.com

Land Court’s New Process Expedites Deregistration

 Gregory Bradford and Alexander Eddinger

Commercial real estate transactions often involve a mix of diligence items that create complications for all parties involved. Environmental and permitting challenges are often top of mind. The more arcane realm of title also poses unique risks. While it is widely

understood that a property needs to have “clear title” or “marketable title,” some real estate professionals assume that merely getting a deed and a title insurance policy is sufficient for diligence purposes. The reality, however, is that a title insurance policy itself cannot extinguish all encumbrances or registry requirements that affect a property. Title issues will always pose the risk of significantly extending the amount of time required to acquire or finance a property, and in certain cases add burdens to the process of subdividing the land or converting the land into a condominium.

In all of these situations, an attorney or project manager should prioritize determining whether the land is so-called “registered land” subject to the title requirements of the Land Court. Registered land is so-called Torrens system of title – in other words, a method where the government maintains a registry for each parcel and issues a certificate of title that acts as conclusive proof of ownership. This, in turn, means that the registry clerks and Land Court staff scrutinize all documents and plans submitted for recording, with increased likelihood of delays or rejections with additional complications.

When creating a condominium with the Land Court, the bulk of the condominium documents must be presented to the court for approval before they can be recorded. Furthermore, each unit must be separately registered after a review with the court staff. Similarly, many development projects require the land to be subdivided into new parcels, and sometimes a developer will try to file a subdivision plan as a strategic move to “freeze” the current zoning designation under M.G.L. c. 40A, § 6. In each case, timing and deadlines matter immensely. When subdividing registered land, the draft plan must go through a review process with court staff and satisfy certain specific engineering and survey requirements that are not otherwise imposed on subdivision plans.

All of this begs the question – why not simply “de-register” the land?

Until recently, the answer to the question above was simple: it still took a long time for the Land Court to approve petitions to withdraw the land from the registered land system. And not all properties satisfied the specific criteria required to qualify for withdrawal.

Fortunately, the Massachusetts Legislature enacted The Massachusetts Affordable Homes Act (H. 4977) in 2024, which revised G.L. c. 185, § 52 to allow registered land to be voluntarily deregistered for any reason and set an expedited timeline for the Land Court to approve deregistration complaints. These changes have now been implemented and the revised process is detailed in new guidance from the Land Court’s Chief Title Examiner

Filing and Serving the Complaint

To begin the deregistration process, a Complaint for Voluntary Withdrawal and a Notice of Voluntary Withdrawal must each be filed with the Land Court.  The Complaint must list all current owners of the property and identify any mortgagees, lessees, or option holders of record (collectively, “Interest Holders”), including any Interest Holders listed on the property’s certificate of title and memoranda of encumbrances. It is recommended that the petitioner obtain and file signed assents of any Interest Holders with the Complaint. Filing such assents with the Complaint will eliminate the need to serve the Interest Holders, as further detailed below. The Complaint must also include an attested copy of the property’s certificate of title.

If the property owner is a corporate entity or trust, certain additional materials must also be filed with the Complaint. For corporate entities, a current (issued within the last 60 days) Massachusetts Certificate of Good Standing is required, and trusts must file a Trustee’s Certificate pursuant to G.L. c. 184, § 35. In either case, the Complaint must also be signed by a Massachusetts lawyer.

The Notice[1] must be signed and acknowledged by all fee owners of the property to be withdrawn, with certain basic title and owner information plugged into the form where indicated.

Once the Complaint and Notice have been filed with the court, (i) a Notification of Complaint for Voluntary Withdrawal and (ii) Land Court file-stamped copy of the Complaint and Notice must then serve by certified mail on all Interest Holders who have not assented to the Complaint. If assents of all Interest Holders were obtained and filed with the Complaint, this service requirement is eliminated. After serving any Interest Holders, an Affidavit of Service must be filed with the court certifying that any non-assenting Interest Holders have been served and providing proof of service. If the property owner is represented by a lawyer, that lawyer must sign the Affidavit.

Land Court Review and Deregistration

The new rules provide that within 30 days of receiving all required information and documentation, and if no objections to the deregistration have been filed, the court will move ahead and endorse the Notice of Voluntary Withdrawal. Once the Notice has been endorsed, the owner must file the Notice with the applicable registry district. This is the final step for the owner to take (though the registry district will then go through a ministerial process to verify the deregistration to officially withdraw the property).

Although many practitioners were initially skeptical of the court’s ability to process petitions within the 30-day window, we are generally finding that the court staff has been able to approve petitions within 30-60 days, depending on the relative complexity of the title. Much of the timing pressure remains on the front-end, when the owner and their counsel work on preparing the petition and obtaining assents from lenders and tenants.

Gregory Bradford is a partner in the Real Estate Department of Nutter McClennan & Fish LLP, and a member of the Commercial and Real Estate Finance practice group and the Development, Land Use and Permitting practice group. His practice focuses on commercial transactions, and he also advises clients on various aspects of complex development projects. He can be contacted at ebradford@nutter.com. 

Alex Eddinger is an associate in Nutter’s Real Estate Department. He advises clients on a broad array of real estate issues, including acquisitions and dispositions, real estate financing, zoning, and land use matters. His real estate litigation practice currently focuses on representing clients in zoning appeals, easement and title disputes, and related land use litigation. Prior to joining Nutter, he served as a judicial law clerk to the Hon. Jennifer S.D. Roberts of the Land Court.  Alex can be contacted at aeddinger@nutter.com.

 

 

 

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Where Does Your Garden Grow? In a Condo Community, Where the Board Says it Can Grow

 Justin Magsarili

It’s spring. The snow is gone.  Birds are singing and the green thumbs of condominium residents are itching to plant the flowers of which they’ve been dreaming all winter.  However, they need the board’s

permission before they start digging anywhere.

That is true not just in common areas, where, with rare exceptions, owners should not be allowed to plant anything, but in limited common areas designated for an owner’s exclusive use, where boards can and should control what gets planted and where.    

Pretty roses adjacent to the owner’s fence  shouldn’t pose any problems, but bamboo, which  can pop up several feet from where it is planted (in the yard next door, for example);  English ivy, which spreads quickly, both horizontally and vertically and tends to attract rodents; and poison ivy, which poses other obvious problems, are likely to prove unpopular with the neighbors. 

Maintenance – or the lack of it – is another potential concern.  An owner’s springtime enthusiasm may fade in the summer, leaving untended flowers to die, allowing weeds to overrun the garden and provoking complaints about the unsightly results.

Licensing/Exclusive Use Easement Agreements

To avoid these problems, boards should require owners to sign a licensing or exclusive use easement specifying that:

·       The board must approve what the owners plant;

·       The owners must maintain it; and,

·    The board has the authority to revoke permission and order the removal of plantings at the owners’ expense if they fail to comply with the licensing terms.

The agreement should also require owners to sign a waiver relieving the association of liability for damages related to their gardening efforts.  There isn’t a lot of risk here, but nothing is completely risk-free.

Avid gardeners sometimes want to help with – or even take over – landscaping chores in their community.  This is not typically a good idea.  Liability and safety are the primary concerns.  You don’t want volunteers, however skilled they think they are, climbing trees with chain saws to cut branches. But even less dangerous tasks like planting flowers may be problematic, given the likelihood that some owners will almost certainly object to almost anything your volunteer landscapers do.

Boards should encourage these volunteers not by handing them shovels but by putting them on an advisory committee – with the emphasis firmly on ‘advisory.’ The committee can suggest landscaping projects and propose ideas for improving the look of common areas, but the board needs to have the final say on any of these ideas, and it should hire an experienced, appropriately licensed and insured company to do the work. 

Community Gardens

Some communities may consider designating space for a common area vegetable garden.  This conjures images of happy residents companionably tending neat rows of corn, tomatoes and zucchini.  The reality is likely to be angry residents at odds over what gets planted, who is or isn’t doing their share of the maintenance work and how the bounty should be divided.  

Generally, community gardens for all to use aren’t worth the headaches and hassles they create.  But boards that want to create one should develop strong and clear rules and policies for its use, affirming the board’s authority to approve what is planted, to revoke permission for the garden if owners violate the rules, and to remove the garden if owners fail to maintain it. Boards should also require participating owners to sign liability waivers and should ensure that the association has adequate insurance to cover potential liability claims. 

The board’s authority to control what is planted in common areas and limited common areas is clear, but owners don’t always obey association rules. How should the board deal with an owner who decides to ask forgiveness for the garden he has created rather than seek permission for the one he would like to create? 

 

Enforcing the Rules

The board has the authority to remove the garden – or order the owner to remove it – and restore the area to its original condition.  That may not be necessary, however.  Unless the owner has installed quicksand or the garden equivalent of a boa constrictor – that strangles passersby – you probably aren’t dealing with a health and safety risk. 

The primary issues are protecting the board’s authority to establish rules and its need to enforce them consistently.  The board can achieve both goals by requiring the owner to obtain retroactive permission for the garden (provided the work done meets the board’s standards for aesthetics and content) and to sign a licensing or exclusive use area agreement governing it.  The board can also fine the owner for violating the rules.

Consistent enforcement is essential.  If the board allows this owner to skate by without getting permission for his garden, others will undoubtedly follow; and owners who have signed licensing agreements will see little reason to abide by their terms. 

Selective enforcement can create other problems.  If the board rejects a type of shrub proposed by one owner that other owners have been allowed to plant, the rejected owner may challenge the board’s authority to enforce the rule against anyone.  And if the owner is a member of a protected class under the law, the board may find itself defending a Fair Housing discrimination suit. 

Consistent enforcement requires vigilance.  Boards should inspect their properties periodically to identify landscaping violations and respond quickly to them.  If the board initiates an enforcement action now, as it is contemplating, the owner can ask reasonably why a garden that wasn’t a problem 18 months ago is a problem now.  The board can argue correctly that the owner failed to obtain permission for it.  But if this case goes to court, the optics won’t be good for the association. 

Justin in an Associate at the Braintree-based firm of Marcus Errico Emmer & Brooks, P.C.  His practice includes supporting clients regarding interpretation of governing documents, condominium operations and governance issues, unit owner responsibilities and rule enforcement, drafting and amending of condominium documents, and lien enforcement. He can be contacted at jmagsarili@meeb.com

 

 

 

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