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WWW.REBA.NET OCTOBER, 2011 THE NEWSPAPER OF THE Vol. 8, No. 5 news REAL BAR ASSOCIATION A publication of The Warren Group

COMMENTARY PRESIDENT’S MESSAGE MERS and the Registry of REBA’s active BY RICHARD P. HOWE JR. to the front door and physically alties of that collapse. Countless mission take control of the place, using the homeowners had their lives dis- Back in the fall of 1991, a weekend to take inventory. Entities rupted when assignments and dis- BY EDWARD M. BLOOM popular Friday afternoon activity such as Lowell Institution for Sav- charges disappeared or didn’t exist in downtown Lowell was to walk ings and Central Savings Bank that and missing paperwork became Recently, I watched a documentary around the city looking for clues had been around for longer than a drag on the market’s about Hubert Humphrey, one of the great- as to which bank would be seized the city itself were seemingly gone recovery. At least that is how I re- est senators of the 20th century. I was quite by the FDIC that day. Carloads of overnight, casualties of the bursting member things during the early moved by the “Happy Warrior’s” interpre- Dick Howe U.S. Marshalls, clad in blue blaz- of that era’s housing bubble. days of my tenure as Register of tation of the Preamble to the Constitu- See MERS, page 2 ers and gray slacks, would race up Banks were not the only casu- tion as a call to Americans to be actively involved in the business of providing a more perfect union for “we the people of the United States.” Hon. Robert Cordy to keynote He noted that each of the verbs in the Preamble is active: REBA 2011 Annual Meeting & Conference to establish justice, to insure domestic tran- quility, to promote the general welfare, and U.S. Supreme Judicial Court Associate to secure the bless- Ed Bloom Justice Robert J. Cordy, who wrote a concur- ings of liberty. His ring opinion in the Supreme Judicial Court point was that unless foreclosure case, U.S. national Bank Associa- citizens actively engage in politics and the tion vs Ibanez, will be the keynote speaker at issues confronting the country, the goals of REBA’s 2011 Annual Meeting Conference the Constitution cannot be achieved. on November 14 at the Best Western Royal And this interpretation holds true Plaza Hotel in Marlborough. when analyzing any organization, for if its Cordy’s concurring opinion noted the members do not participate, the organi- “utter carelessness” of the plaintiff banks in zation becomes moribund and ceases to the case pertaining to the title documenta- provide benefi ts for or remain relevant tion of their assets. “Foreclosure is a power- to its constituents. REBA’s mission is to ful act with signifi cant consequences, and advance the practice of real estate , to Massachusetts law has always required that sponsor professional standards, to create it proceed strictly in accord with the statutes educational programs and to promote- that govern it.” He also noted – though the fair dealings and good fellowship among issue was not before the Court in this partic- members of the real estate bar. ular case – the possible eff ect on third-party Th ese goals require the active par- purchasers of foreclosed that were ticipation of REBA members in order for not properly recorded and the foreclosures REBA to serve its members or be valuable not contested. to their real estate practices. So who are these men and women of REBA who vol- REBA Hosts Exclusive Paralegal Programs unteer their time and expertise and why do they do it? Th ey are individuals who REBA will host three special The hour-long programs The all-day conference will do not see their role as lawyers as sim- programs for paralegals at the will include Foreclosures for include a plenary luncheon ply providing them with income to live association’s all-day annual Paralegals with Ward Graham; meeting with SJC Associate on, but rather view their chosen fi eld as meeting and conference (AMC11) Short Sales for Paralegals with Justice Robert J. Cordy as a a professional calling with a duty to the on Monday, Nov. 14, 2011, at the Amanda Zuretti and A Paralegal’s featured luncheon keynote law, the courts and society as a whole. Best Western Royal Plaza Hotel in Primer on Homesteads with speaker. To register for the Th ese men and women believe in REBA’s Marlborough. Erica Bigelow. AMC11 go to www.reba.net. mission and so they join its committees, participate in its educational programs, { { See VOLUNTEERS, page 2 Supreme Court to hear separation of powers issue within title insurance kickback case BY DOUGLAS W. SALVESEN FACTUAL AND PROCEDURAL BACKGROUND At the time of the referral, Edwards ment whereby Tower City agreed to re- was unaware of the commercial rela- fer all title-insurance underwriting busi- Th e Supreme Court has agreed to decide In 2006, Denise Edwards bought tionship between Tower City and First ness exclusively to First American. whether a homebuyer can sue a title insurer a three-bedroom home in the North American. In 1998, First American had In a class action fi led in federal court, for violation of the Real Estate Settlement Collingwood section of Cleveland for paid $2 million to Tower City. First Edwards alleged that this exclusive refer- Procedures Act of 1974 (RESPA) even $111,000. Th e settlement agent, Tower American maintains that the payment ral arrangement violated RESPA. How- though the homebuyer cannot establish that City Title Agency, LLC, referred Ed- was to buy a minority interest in the ever, because Ohio law mandates that the violation increased the amount she paid wards to First American Title Insurance agency. Edwards insists that the pay- all title insurers charge the same price, for title insurance services. Co. for her title insurance policy. ment was part of a kickback arrange- See TITLE KICKBACK, page 3 PAGE 2 REBAnews OCTOBER, 2011 BLOOM: Kudos to volunteers CONTINUED FROM PAGE 1 in the Ibanez, the Moot and the Faneuil great deal of gratitude. I urge all mem- THE REAL ESTATE volunteer to author amicus briefs provid- Investors cases. bers of REBA to become more involved, BAR ASSOCIATION ing guidance to the courts, create stan- More signifi cantly, many REBA men to join in the passion of those who make for Massachusetts dards and forms to elevate and assist the and women volunteered numerous hours the verbs of REBA’s mission active. To be professionalism of real estate lawyers and to REBA’s legal challenge to NREIS’s set- engaged with these extraordinary men 50 Congress Street, Suite 600 sponsor legislation to resolve real estate tlement service activities as the unauthor- and women in their goal to bring excel- Boston, Massachusetts 02109-4075 issues that aff ect the common good. ized practice of law. Th eir work culminat- lence and the highest standards of pro- www.reba.net Recent tangible examples of their ed in a decision by the SJC that emphati- fessionalism to the real estate bar is an President: Edward M. Bloom work include: the excellent educational cally concluded that Massachusetts is an experience that will enrich your life and [email protected] program presented at the REBA Spring “attorney” state which requires an attorney provide you with life-long memories. President Elect: Christopher S. Pitt Meeting on May 2; the enactment of the to be substantively involved in the closing [email protected] new Homestead Act (which was drafted of real estate transactions. Th is holding is a A partner at Sherin and Lodgen LLP, Ed Bloom has chaired the REBA leasing and Immediate Past President: Thomas O. Moriarty by three REBA members); the six new major victory for the homeowners of Mas- [email protected] forms created by REBA’s Title Commit- sachusetts and the real estate bar. amicus committees, and is currently presi- dent of REBA. He can be reached at em- Clerk: Michelle T. Simons tee for use under the new Homestead Th ese volunteers are the heart and [email protected] [email protected]. Act; and the REBA amicus briefs fi led soul of REBA and we all owe them a Treasurer: Michael D. MacClary [email protected] Executive Director, Editor: Peter Wittenborg [email protected] MERS mortgages benefi t homeowners, lenders Legislation Counsel: Edward J. Smith [email protected] Managing Editor: Nicole Cunningham CONTINUED FROM PAGE 1 without reference to the institution for and eventually discharged by MERS, to [email protected] Deeds of the Middlesex North District. which MERS is holding.” suggest that the absence of intervening Assistant Editor: Andrea M. Morales When Mortgage Electronic Regis- Th e Land Court ratifi ed this treat- assignments somehow constitutes a title [email protected] tration Systems, Inc., better known as ment of MERS in its May 2000 guide- defect is to ignore the law. It also ignores MISSION STATEMENT MERS, came on the scene in the late lines, in a March 2003 memo from Chief history. As Kilborn put it at the end of To advance the practice of real estate law by 1990s, it was widely hailed as part of Title Examiner Ed Williams to all regis- that 1999 memo from Land Court that creating and sponsoring professional stan- the solution to the missing tries, at a May 2005 seminar for registry ratifi ed the use of MERS, “we have all dards, actively participating in the legislative problem. MERS would be the mortagee employees, and in the February 2009 revi- experienced considerable problems with process, creating educational programs and of record and serve as nominee for the sion of the guidelines. missing assignments. Hopefully, this material, and demonstrating and promot- ing fair dealing and good fellowship among equitable owner of the loan, eliminating system will eliminate these problems in members of the real estate bar. the need for assignments that would track the future.” “in a jurisdiction with a strict MENTORING STATEMENT the underlying of the note that From this registry’s perspective, the To promote the improvement of the practice was secured by that mortgage. “the mortgage follows the note” MERS system worked as advertised, es- of real estate law, the mentoring of fellow At a meeting of the Massachusetts pecially during the boom years of the practitioners is the continuing professional Registers and Assistant Registers of Deeds rule, the concept of MERS recent housing bubble. From January 1, responsibility of all REBA members. The of- Association held in Worcester on March 2003, through December 31, 2007, this ficers, directors and committee members are might be on shakier ground. But available to respond to membership inquires 23, 1999, MERS was discussed at length. registry recorded 140,798 mortgages – relative to the Association’s Title Standards, Th e topic was not the propriety of MERS; Massachusetts law does not more than one-third of which had MERS Practice Standards, Ethical Standards and no one questioned that. Th e debate was as the grantee. Given the operation of the Forms with the understanding that advice to whether the registries should include the follow that rule” home lending industry during that pe- Associations members is not, of course, a name of the underlying lender as well as riod, the majority of the notes secured by legal option. MERS in the registry index. Th e registers those mortgages were transferred among (me included) who argued against includ- Why MERS has emerged as the poster investors multiple times. Because its legal © 2011 The Real Estate Bar Association for Massachusetts. Materials may not be ing both names maintained it unnecessar- child for abuses in the U.S. lending in- structure obviated the need to record an reproduced without permission. ily increased the amount of data entered dustry is a mystery to me, especially when assignment for each of those transfers, by the registry, which would in turn slow so much misfeasance and malfeasance by MERS helped synchronize a 21st century Standard bulk postage paid at Boston MA, 02205. Postmaster: Send address changes down the process. Th ose who other institutions has passed without com- lending industry that emphasized the to REBA, 50 Congress St., Boston MA, 02109 supported indexing both names took that ment. Perhaps it fl ows from an under- speed with which instruments were nego- position not because they felt it was re- standable but futile attempt by some to tiated with a document recording system quired by law, but to accommodate Banker impose a consistent national interpretation born in the nineteenth century, a sys- and Tradesman, which asked for the addi- on real estate law that varies widely from tem that saw the wait time for recording tional names to better track which institu- state to state. For example, in a jurisdic- documents at some registries measured in tions were making which loans. In the end, tion with a strict “the mortgage follows the weeks rather than minutes. 280 Summer Street, 8th Floor the association agreed to leave the issue of note” rule, the concept of MERS might be Th at so many mortgages from the Boston, MA 02210-1131 indexing the additional names to the dis- on shakier ground. But Massachusetts law recent boom were ill advised from their (800) 356-8805 cretion of each register of deeds. does not follow that rule, holding instead inception goes without saying and cor- www.thewarrengroup.com Th e Land Court soon weighed in on that a MERS-like separation of the note ner-cutting and sloppy practices by the MERS with a May 1999 memo from holder and the mortgagee creates a type lending industry certainly contributed to TIMOTHY M. WARREN, then Chief Justice Peter Kilborn to all of trust relationship with the mortgagee our current problems. Undoubtedly some Chairman registers of deeds in their capacity as as- holding only bare legal title for the benefi t MERS mortgages had problems. Still, TIMOTHY M. WARREN JR., sistant recorders of the Land Court. After of the note holder. It’s almost as if MERS the great majority of MERS mortgages CEO and Publisher describing the background and concept of used Massachusetts law as a model. worked as intended and in doing so, they DAVID B. LOVINS, MERS, Kilborn wrote: “MERS remains To be sure, if some other entity con- helped streamline the recording process President and COO the mortgagee of record when mortgage ducts a foreclosure of a mortgage granted in a way that benefi tted and continues to VINCENT MICHAEL VALVO, loans or servicing rights are sold from one to MERS without fi rst recording a valid benefi t the homeowners, lenders and reg- Group Publisher & Editor-in-Chief MERS member to another, and the trans- assignment of that mortgage, then that istries of deeds of this Commonwealth. CUSTOM PUBLICATIONS fer is tracked electronically on the MERS is a problem. However, such a scenario is Editor: Christina P. O’Neill A frequent contributor to REBA News, Dick System; MERS, by serving as nominee not unique to MERS-held mortgages. In- Associate Editor: Cassidy Norton Murphy for the lender, can remain the mortgagee deed, based on the records of this registry, Howe has served as register of the Middlesex of record when servicing rights are sold this foreclosure-without-an-assignment North District Registry of Deeds since 1995. CREATIVE SERVICES Creative Director: John Bottini from one MERS member to another situation occurred most often with other He writes a blog on public records issues and Senior Graphic Designer: Scott Ellison MERS member … On the Encumbrance mortgage holders and not with MERS. concerns, which can be found at www.lowell- deeds.com. He can be contacted at richard. Graphic Designers: Nate Silva, Christina Briggs, Sheets ‘mortgagee’ will be listed as Mort- As for the standard MERS mort- Ellie Aliabadi gage Electronic Registration System, Inc., gage, the one initially granted to MERS [email protected]. PUBLISHING GROUP SALES & MARKETING Publications Group Sales Manager: Be The First Free, fresh news you need to George Chateauneuf NEWSPAPERS stay in the know and succeed. Advertising Account Manager: To Know. Mark J. Schultz Delivered right to your inbox. Advertising, Marketing & Events Coordinator: Log on today to subscribe. Emily Torres www.bankerandtradesman.com EVENTS Director of Events: Sarah Cunningham OCTOBER, 2011 REBAnews PAGE 3 USSC and title kickback CONTINUED FROM PAGE 1 actual injury. An individual is not permit- Edwards could not establish that she was ted to file an action against a defendant al- overcharged for title insurance services or leging a general violation of the unless had suffered any actual injury resulting that individual has suffered or will suffer from the alleged RESPA violation. some actual harm as a result of the defen- First American sought to dismiss the dant’s conduct. Violations of the law that complaint on the grounds that, because harm the public generally but do not harm Edwards had paid the same amount that any specific person may be prosecuted only every other Ohio resident paid for title by the Executive Branch. insurance, she had no standing under First American contends that this RESPA to sue First American for the power to enforce the laws generally re- alleged RESPA violations. sides in the Executive Branch alone and The District Court of Southern that Congress has no power under the California, and then the Ninth Circuit, Constitution to authorize private indi- both rejected this argument. Each held viduals who have not suffered any injury- that the plain statutory text of RESPA in-fact to bring such enforcement actions. does not require that a consumer be The Supreme Court grant of certiorari overcharged or demonstrate that she has on this separation of powers issue goes suffered any actual harm in order to sue far beyond RESPA. There are thousands on a RESPA violation. Rather, any con- of cases filed each year in federal courts sumer who is charged for a settlement by plaintiffs who have suffered no actual service that violates RESPA’s anti kick- damages but have a right to statutory back provisions is entitled to three times damages and attorney’s fees under the the amount of any charge paid whether Truth in Lending Act, the Telephone or not the consumer has suffered an in- Consumer Protection Act, and similar jury. The lower courts found that this consumer-oriented laws. A decision that statutory language was sufficient to pro- A decision that only persons who have suffered actual injuries have only persons who have suffered actual in- vide Edwards with standing to sue First juries have standing to sue for statutory American for its conduct. standing to sue for statutory violations would have far-reaching violations would have far-reaching conse- quences well beyond RESPA. SUPREME COURT consequences well beyond RESPA. A decision from the Supreme Court GRANTS CERTIORARI ON will not be forthcoming until sometime CONSTITUTIONAL ISSUE next year. Court was little impressed by the first is- ing whether Congress could grant such Following the adverse decisions by sue presented for review by First Ameri- standing and the extent of power grant- Co-chair of REBA’s litigation committee, the District Court and the Ninth Circuit, can – whether Congress had granted ed to each branch of government under Doug Salvesen has served for 20 years as First American filed a petition for certio- standing to consumers who have not the Constitution. counsel to the association’s committee on rari with the Supreme Court. First Ameri- suffered an economic injury to sue in In its petition, First American as- the practice of law by non-lawyer. He is the can Financial Corporation v. Edwards, No. the federal courts for violations of RE- serted that Article III of the Constitution architect of REBA’s success in the recent 10-708 cert. granted June 20, 2011). SPA. However, First American’s petition requires that an individual seeking relief SJC decision, REBA vs. NREIS. Doug can be Like the lower courts, the Supreme presented a second, meta-issue concern- from the Judicial Branch have suffered an contacted by email at [email protected].

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COMMENTARY Let’s speak highly of homeownership again

PAUL F. ALPHEN

Anyone who has taken a sociology or psychology course in college knows about the power of effective advertis- ing. It can compel you to buy things you didn’t know you wanted, or make you feel as if you are missing out if you don’t buy. “The medium is the message” is a phrase coined by Marshall McLuhan in 1964. McLuhan was ahead of his time. For example, he commented that the public’s at- titude about crime would change once that crime stories moved from news- papers to television sets turned on dur- Paul Alphen ing family dinner. He could not have foreseen the current obsession with television, the internet and electronic “social networking”. (In my opinion, the term “social networking” when applied to electronic media is one of the great misnomers of the century.) In the aftermath of the recent hurri- try, were negatively influenced by the wanted to think they had. In the pro- cally low mortgage rates. Our neighbor- cane the newspapers were filled with inundation of unfiltered baloney that cess of trying to stay as savvy as one hoods, and the people in them, need us accounts of lost souls who did not one can encounter on the internet and thinks the next guy is by getting on the to do this. know what to do without their cable on TV. Worst among the baloney is the home bandwagon at any price, buyers We should encourage our family, television and Facebook accounts. Per- name calling and juvenile bickering forgot one vital thing: A home is, first friends and clients when they start talk- haps they did not own any good books amongst various leaders of the two ma- and foremost, a place where one lives. ing about buying a new home. We can or have any real friends. jor political parties. For those of us whose livelihoods cen- share stories of our first horrible mov- Beginning in the go-go 1980s when ter on real estate, it is indeed an invest- ing experiences and of hosting our first the recession ended and people started ment, but to succeed as an investment Thanksgiving when we learned the oven having discretionary income again, more for us, it must also be an economically thermometer was off 25+ degrees. We money flooded the economy. The sustainable place for someone to live. can share stories about neighbors who sales hook “Think of it as an in- Despite the modest home appre- became life-long friends, and kids that vestment” roped plenty of peo- ciation rates of the 1950s and 1960s, as dug our car out of a snow bank. We ple in, its implication being was the rate of appreciation overall in should share our boundless advice about that if you don’t make the 1990s, buying a home was an excit- buying a new lawnmower or washing this investment, you ing proposition over those decades. We machine, and how we learned to in- aren’t savvy enough got our parents and friends involved in stall dishwashers and stockade fences. to survive. the purchase decision before making an Homeownership is not for everyone, The cor- offer, and we invited everyone over for a but the rewards are significantly greater rect response cookout soon after moving in. We were than the financial return on investment. Nevertheless, social sci- is: “Investment proud of our purchases and spent weeks It’s the wellspring from which com- entists have yet to properly for whom?” or months making repairs or renova- munities grow. I think it is time to start measure the impact that the If more new- tions to make it feel like home. reminding one another that homeown- non-stop barrage of informa- bie homeown- Homeownership was considered a re- ership is an admirable vocation. tion, misinformation, and use- ers had posed that sponsibility, and a way to establish roots – less information caused by hun- question in the late not a financial bonanza. We, as real estate REBA’s president in 2008, Paul Alphen cur- dreds of cable channels and endless 1990s and early oughts, attorneys, have an opportunity to use our rently chairs the association’s long-term internet outlets. When social scientists and walked away when the salesperson positions in the community to share our planning committee. A frequent and welcome and economists get together to evalu- had to think twice about how to answer, enthusiasm about homeownership. We contributor to these pages, he is a partner in ate 2011, I bet they will find that the the asking prices for housing might not should attempt to counteract some of the Balas, Alphen and Santos, P.C., where he con- public’s perception of the value of home have expanded to consume not only all inflammatory baloney on the Internet and centrates in commercial and residential real ownership, and the public’s perception the discretionary income people had, in the media with expressions of excite- estate development and land use regulation. of the economic outlook of the coun- but all the discretionary income they ment about today’s low prices and histori- Alphen can be reached at [email protected].

   We Do Titles & Closings In Western Mass   ‘Till The Cows Come Home           

 Law Offices of Douglas J. Brunner  413-781-1202 Fax 413-734-2925 www.titlebound.com  73 State Street Suite 104 Springfield MA 01103   OCTOBER, 2011 REBAnews PAGE 5

ANALYSIS Brooks Pond case properly infers missing century-old deed Cites circumstantial MICHAEL J. O’NEILL exercised ownership of the entirety of the pond since 1935 without challenge, Th e Appeals Court1 has affi rmed a except for Starr’s challenge in this case. Superior Court judgment2 that a non- Both BPCA and Starr presented expert profi t organization owns a 170-acre opinions on the title issue. Th e Superior pond in four towns in western Worces- Court in the end adopted the reasoning ter County, relying on the inference of of BPCA’s expert, Jeremy O’Connell, an unrecorded deed fi led more than 100 Esq., of Worcester. years ago. Both of the real estate experts tes- No appeal was tifi ed that in 1864, Amasa Walker and taken. Th e Appeals Freeman Walker, as owners of the en- Court opinion is an tirety of Brooks Pond, conveyed a one- unpublished decision third interest to Warren Fay. Th e 1864 under Rule 1:28, but deed said that it is the intention of the will nonetheless be grantors that said Fay, Amasa Walker of interest to practi- and Freeman Walker each shall own tioners with problems one-third part of the “reservoir” pond in of missing deeds in Michael O’Neill common. chains of title. It also In 1879, Freeman Walker conveyed will interest those his one-third interest to Richard Sug- with cases presenting the question den. Also in 1879, Richard Sugden re- whether a pond or lake is a . ceived a conveyance from Warren Fay of Th e Appeals Court affi rmed the Su- a two-thirds interest in the pond. Rich- perior Court’s decision in all respects, ard Sugden’s devisee conveyed all her including the conclusion that Brooks right to the Pond to Lucien Taylor, and Pond is not a Great Pond and that the there was nothing in the deed indicating conservation association managing the that she had less than the full interest. pond has the right to make and enforce Th e record title does not show a deed reasonable rules for the use of the pond. from Amasa Walker to Warren Fay of Th e case Brooks Pond Conservation his one-third interest. Hence, the prob- Association, Inc. vs. Albert Starr, began lem of the missing deed. in Worcester Superior Court in 2004 O’Connell testifi ed that he exam- as a declaratory judgment action. Th e ined the will of Amasa Walker, and Brooks Pond Conservation Association found that it made very specifi c dispo- sitions of his property, complete with deed references to . Th e will The lesson to be learned from did not dispose of Brooks Pond, leading this case, as in many cases O’Connell to conclude that he had al- ready disposed of it during his lifetime. presenting contested issues, O’Connell also testifi ed that Sugden is to look to the surrounding was one of the wealthiest citizens in the area, and it is likely that, when he pur- Attorneys: circumstances for corroboration, chased the pond, he knew he was pur- chasing the entire interest in the pond. losing confidence in or lack thereof, of the disputed Starr’s expert opined, in contrast, that out sourced title examinations? proposition. the missing one-third interest passed under the residuary clause of Amasa raise your title standards: Walker’s will. Th e Superior Court noted, Work directly with members of the however, that Starr’s expert could not (BPCA) sought declaratory and injunc- point to any deed in the chain of title tive relief requiring Starr and members purporting to convey this missing inter- of his family to observe some simple est, or any evidence that Amasa Walker’s MAssAchusETTs IndEpEndEnT rules for the use of the pond, including heirs exercised dominion or control over prohibiting from the pond boats with the pond. On the other hand, all of the TITlE ExAMInErs Assoc. Inc. gasoline engines as well as all-terrain deeds in BPW’s chain of title, from the vehicles. 1898 deed on, did purport to convey the Business address: Th e issues grew in complexity. entire interest. In summary, all of the Th e defendants’ answer essentially put corroborating evidence supported the P.o. Box 955, salem, ma 01970 BPCA to its proof on all issues, includ- inference of an unrecorded deed. ing ownership. In 2007, Starr raised the Th e Superior Court and the Appeals issue that Brooks Pond is a Great Pond Court relied heavily on a decision of the M.I.T.E.A. and, therefore, is owned by the state and Appeals Court, three months before the beyond the ability of BPCA to make Superior Court trial, in the case of Poor v. he eading dvocacy roup represenTing rules for its use. Lombard, 72 Mass. App. Ct. 719 (2008). T L a g BPCA is a non-profi t corpora- Th e Appeals Court there noted that Mas- independenT TiTLe examiners. tion organized to conserve and man- sachusetts jurisprudence recognizes the age Brooks Pond as a wildlife and sce- slippery slope of inferring the existence of m.i.t.e.a. members are committed nic preserve. BPCA leases the entirety a lost, unrecorded deed, pointed out that to the industry they serve by upholding of the pond from BPW, Inc., (BPW), do so may well be perilous, but warned which is a non-profi t corporation or- that the failure to do so may also have the highest standards of professionalism, ganized to own the pond. BPW claims grave consequences. Massachusetts courts integrity and best practices that benefit ownership of the entirety of the pond have long held proper the practice of in- the massachusetts legal community and through deeds in 1935. ferring missing grants. In Poor the Land Th e undisputed testimony at trial Court inferred the existence of a missing registry of deeds. for more information was that Brooks Pond is beautiful and deed based upon a later deed which pur- and “to find an examiner” visit: was enjoyed as a peaceful refuge at least ported to convey the parcel, and the deed since the 1950s or as far as back as any of a neighboring party which referred to www.massdeeds.com of the witnesses could recall. BPCA has the owner of the abutting land. managed the pond and spent money for Th e Superior Court, upheld by the Ap- “Know your Title Examiner and its upkeep, including managing weeds. peals Court, stated that circumstantial evi- BPCA paid the real estate taxes and li- dence may suffi ce to establish a missing par- Know your Title has been Examined” ability insurance costs. Th e pond is open cel, but that only a probability of the miss- without charge to the public. ing grant, not a mere possibility, will suffi ce. See BROOKS POND page 10 Th e Superior Court found that BPW PAGE 6 REBAnews OCTOBER, 2011 2011 Annual Meeting & Conference Monday, November 14, 2011 • 7:30 a.m. – 3:00 p.m. Best Western Royal Plaza Hotel 181 Boston Post Road West, Marlborough

Schedule of Events

7:30 a.m. Registration Opens funds and escrow accounts. In part 3 of this 9:45 a.m. – 10:45 a.m. Salon C 7:30 a.m. – :30 a.m. Exhibitors’ Hour session, Dan Crane will discuss rules and 11:00 a.m. – 12:00 p.m. Salon D 8:30 a.m. – 1:15 p.m. BREAKOUT responsibilities of attorneys for retention SESSIONS and destruction of client files and work Commercial Landlord Liabilities & product, and will provide a File Destruction Related Leasing Strategies 8:30 a.m. – 9:30 a.m. Salon A Protocol that will be of practical benefit to Richard Heller, Esq.; David K. Moynihan, Esq. 9:45 a.m. – 10:45 a.m. Salon A practitioners in any discipline. This session will explore various types of Probate Real Estate and the New liabilities to which commercial landlords are Code: The Good, the Bad and the 8:30 a.m. – 9:30 a.m. Salon D liable in leasing commercial property, and Ugly 9:45 a.m. – 10:45 a.m. Salon D will include a discussion of recent Supreme Jennifer A. Maggiacomo, Esq.; Judicial Court decisions in Bishop v. TES Michael J. Ring, Esq. Avoiding Litigation in a Down Realty Trust and Trace Construction, Inc. Market v. Dana Barros Sports Complex, LLC, that Whenever a real estate transaction Margaret M. Fortuna, Esq.; Thomas M. have (arguably) expanded landlord liabilities involves the Probate Court, a host of Looney, Esq.; Joel M. Reck, Esq. in certain specific areas ( liability and issues emerge; with sweeping codification exposure to mechanics of tenants’ of probate law effective January 2012, The real estate collapse has brought contractors). The panelists will also discuss the practitioner will need to know how an unrelenting wake of title problems, common lease provisions that address (or the Massachusetts Uniform Probate preventing borrowers from refinancing and fail to address) these issues, provide both a Code will, or may, affect the practice lenders from foreclosing, and clogging the landlord’s and tenant’s perspective on how and probate court procedures. This courts. Frustrated clients demand to know these risks can and should be allocated discussion will address necessary, and why it takes many months, even years to between the parties, and provide practical unnecessary, court involvement and tips clear up a title. The solution is mediation. strategies for lease drafting and risk-shifting on navigating your way through the maze. Mediation at the outset of a case, even to eliminate or reduce unintended liabilities. Topics include: to sell, transferring before a complaint is filed, can avoid years without , registered land, death of litigation. The panel will share their related liens, sales by foreign fiduciaries, experiences with mediation, discuss the 8:30 a.m. – 9:30 a.m. Salon C the Code’s framework for administering many kind of cases that may be resolved by 11:00 a.m. – 12:00 p.m. Salon E estates, new intestacy and divorce mediation, and offer counsel on making the provisions, time limitations, exceptions, process as effective as possible. The Basics of Purchasing and and deeds of distribution. Transferring Real Estate in Bankruptcy 8:30 a.m. – 9:30 a.m. Salon E Michael J. Goldberg, Esq.; 8:30 a.m. – 9:30 a.m. Salon B 9:45 a.m. – 10:45 a.m. Salon E Robert J. Moriarty Jr., Esq. 9:45 a.m. – 10:45 a.m. Salon B Shepherding Chapter 40B Michael Goldberg, of Casner & Edwards, Ethical Issues in Real Estate Applications Through Mass Housing, and Robert Moriarty, of Marsh Moriarty Ontell & Practice: A Three-Part Session ZBA & the HAC Golder, will discuss the issues that frequently Mark W. Bracken; Daniel C. Crane, Esq., Theodore C. Regnante, Esq.; Jason R. arise when dealing with sales and other Jennifer L. Markowski, Esq. Talerman, Esq.; Gregory P. Watson, AICP transfers of property from a bankruptcy estate. Among the topics they will cover include: Real estate practitioners are faced with Our distinguished panelists include Documentation required to obtain clear title to {ethical issues on a regular basis and this practitioners, municipal counsel and property in connection with sales by a Chapter session will focus on selected issues that government regulators in the field of Chapter 11 debtor and by a Chapter 7 debtor; Notice are recurring subjects of calls into REBA’s 40B permitting, who will provide an overview issues that can affect whether property has Exhibitors Registered so far… ethics hotline (served by REBA’s Ethics of the Chapter 40B permitting process from been effectively sold “free and clear of liens Easy Soft, LLC Committee) and are important to our project inception to exhaustion of appeals. and interests”; Can a debtor still use the members. In part 1 of this session Jennifer The panel will discuss regulatory issues Bankruptcy Code to avoid paying Deed stamps Efact/Direct IT Corp. Markowski will discuss numerous ethical and procedures relating to the issuance of in connection with a sale of real estate?; Using Bradbury Promotions concerns that arise when an attorney serves Project Eligibility Letters and Final Approval the Bankruptcy Code to extinguish real estate Exchange Authority, LLC as both attorney and broker in the same from MassHousing. Our panel will review interests, such as leaseholds, First American Title Insurance Company transaction, and will introduce the REBA practice before local Zoning Boards of and restrictive covenants; Nominee and other Ethics Committee’s proposed “REBA Ethical Appeal for the prosecution of Chapter trusts in the context of a bankruptcy filing; Law Office Management Assistance Program Standard No. 5: Attorney Acting in Dual 40B Comprehensive Permit applications. Homestead problems. Massachusetts Attorneys Title Group Capacity as Attorney and Broker” that would It will also discuss practice before the Massachusetts Lawyers Weekly establish a bright line standard against the Housing Appeals Committee as well as the Mt. Washington Bank practice. Before it is presented for member appellate process beyond. The panelists 8:30 am – 9:30 am Seminar Room ratification, come learn the rationale for the will review various aspects of decisions National Purchasing Partners standard and participate in what is sure to from MassHousing, local ZBAs, the HAC, Who, What, When: A Paralegal’s Simplifile, LLC be a lively discussion of the issue. In Part 2 Trial Courts and Appellate Courts. The panel Primer on Homesteads Standard Solutions, Inc. of this session Mark Bracken, head of the is intended to provide practitioners with Erica P. Bigelow, Esq. UniComp, Inc. Unclaimed Property Division for the State practical advice on Chapter 40B permitting Treasurer’s office, will lead a discussion on and to help practitioners avoid the pitfalls In this session, we will focus on the how attorneys should handle unclaimed associated with this unique form of land use mechanics of creating – and releasing – funds in IOLTA accounts and other client permitting. homesteads. We will review the homestead OCTOBER, 2011 REBAnews PAGE 7 General Information

Premium credit for professional li- Everyone attending the 2011 Annual the registration desk located in the foyer be honored, however, substitutions of ability insurance may be given for at- Meeting & Conference must register. of the Best Western Royal Plaza Hotel. registrants attending the program are tending properly documented continuing Th e Registration Fee includes the cost of Registration with the appropriate welcome and may be made at any time. legal education programs. For more in- the morning sessions, the seminar written fee should be sent via email, mail or fax Seminar written materials will be mailed formation contact REBA at (617) 854- materials and the luncheon. We cannot to arrive prior to November 7, 2011 to to those who registered but could not at- 7555 or [email protected]. off er discounts for persons not attending guarantee a reservation at the Annual tend within four to six weeks after the the luncheon portion of the program. Meeting & Conference. You are also wel- program. Continuing legal education credit is come to register online at www.reba.net. available in other New England states. Please submit only one registration Registrations received after November Th e use of cell phones is prohibited Contact REBA at (617) 854-7555 or per person. Additional registration forms 7, 2011, will be subject to a late registra- in the meeting rooms during the pro- [email protected] for specifi c details. are available on our website, www.reba. tion processing fee of $25. Registrations grams and luncheon meeting, however, net, or by contacting Andrea Morales at cancelled in writing before November 7, please be sure to visit the lounge areas. Registration to REBA’s 2011 An- [email protected] or at 617-854-7555. 2011, will be honored but will be charged Lounge areas will be located in the Prin- nual Meeting & Conference is open to Confi rmation of registration will be sent a processing fee of $25. No other refunds cess Room and the Duchess Room of the members in good standing, their guests to all registrants by email. Name badges will be permitted. Registrations cancelled hotel. Refreshments will be served. and non-members (for an additional fee). and a list of registrants will be available at on or after November 7, 2011, will not

forms adopted by the Title Standards they will typically require. We will also discuss Committee, and discuss who should sign, in the conditions contained in the typical short what form, and when each form should be sale authorization letter, the fi nal closing, Luncheon used. Attendees are encouraged to bring typical kinds of issues that may arise at questions in writing – so we can all learn various stages of this process and how to Keynote from them address them. Speaker 9:45 a.m. – 10:45 a.m. Seminar Room 12:15 p.m. – 1:15 p.m. Salon E THE HON. ROBERT J. CORDY Foreclosures for Paralegals in the Recent Developments in ASSOCIATE JUSTICE, Post-Ibanez World: The Devil is in Massachusetts Case Law SUPREME JUDICIAL COURT the Details Philip S. Lapatin, Esq. Author of a compelling concurring Ward P. Graham, Esq.; Amanda Zuretti, Esq. opinion last January in the SJC’s landmark Now in his 32nd year at these meeting, foreclosure case, U.S. National Bank Assn. This session will review the foreclosure Phil continues to draw a huge crowd with this vs Ibanez, Bob Cordy was appointed to the process from the viewpoint of the session. His session, “Recent Developments in SJC bench in 2001 by Governor William F. foreclosure attorney’s offi ce, a buyer’s Massachusetts Case Law,” is a must-hear for Weld after a distinguished career in the pri- attorney’s offi ce and a title insurance any practicing real estate attorney. Phil is the vate practice of law. underwriter, including compliance recipient of the Association’s highest honor, The Prior to his appointment to the bench, with G.L. c. 244, s. 35A, right-to-cure Richard B. Johnson Award. Cordy was the managing partner of the notice requirements, preparation for the Boston offi ce of the international law fi rm foreclosure, the initiation and conduct of the of McDermott, Will and Emory which he foreclosure, the interplay of the mortgage joined in 1993. He is currently a member and the technical requirements 1:20 p.m. – 3:00 p.m. of the adjunct faculty of the New England of the foreclosure statutes, the role of the LUNCHEON PROGRAM School of Law where he teaches advanced Servicemembers Relief Act action, what criminal procedure. to look for in reviewing the foreclosure 1:20 p.m. – 1:45 p.m. After brief stints as a public defender, process and the resulting foreclosure Keynote Address service in the Department of Revenue as documentation, how to deal with the The Honorable Robert J. Cordy a deputy commissioner and enforcement multitude of issues that can arise at any work at the State Ethics Commission as an stage of the foreclosure process and what Associate Justice of the Supreme Judicial Court Assistant Attorney General, Cordy served practical impact recent case law has had on as a federal prosecutor under U.S. Attorney evaluating the validity of a foreclosure sale 1:45 p.m. – 2:15 p.m. William F. Weld from 1982 to 1987 where and what can be done to cure infi rmities in REBA President’s Welcome & he became head of the Public Corruption the foreclosure sale process. Remarks Unit. He was a partner in the Boston offi ce Edward M. Bloom, President of Burns & Levinson from 1987 to 1990, joining the Weld administration as chief le- 11:00 a.m. – 12:00 p.m. Seminar Room 2:15 p.m. – 3:00 p.m. gal counsel in 1991. Business Meeting Cordy received his A.B. degree, cum Short Sales for Paralegals: An Report of the REBA Title Standards laude, from Dartmouth College in 1971 Increasingly Valuable Alternative to Committee Co-chairs: Christopher S. Pitt, where he is remembered for his stellar per- Foreclosures Richard M. Serkeyr formance on the gridiron. He received his Ward P. Graham, Esq.; Amanda Zuretti, Esq. Report of the REBA Ethics Committee J.D. in 1974 from Harvard Law School. Committee Co-chairs: Daniel C. Crane; Join us at our 2011 Annual Meeting & Not withstanding some of the horror Robert T. Gill; Jennifer J. Markowski Conference where you can take advantage stories periodically seen in news reports of accredited continuing education, network regarding wrongfully foreclosed borrowers, 3:00 pm with colleagues, and enjoy an informational lenders are increasingly realizing that Adjournment luncheon with old friends! We look forward foreclosures are not their best alternatives to seeing you on November 14th! for recovering mortgage loan debt, especially For information on conference registration and on residential property that remains in Continuing Education Committee exhibitor/sponsorship opportunities visit good repair and insured. Accordingly, Thomas Bhisitkul, Co-chair www.reba.net. lenders are responding more and more William F. Lyons, Jr., Co-Chair favorably to the concept of short sales in lieu of foreclosures. There are many facets CLE Credits involved in approaching and negotiating New Hampshire and Rhode Island the terms of a short sale. This session will continuing legal education credit pending. guide you through the initial considerations Additional information to follow. THE REAL ESTATE BAR ASSOCIATION in determining whether borrowers should for Massachusetts pursue a short sale with their lender and Lounge Areas junior lienholders, how the short sale process Be sure to visit the lounge areas, located in 50 Congress Street, Suite 600 is initiated, what the negotiation process is the Princess Room and the Duchess Room of Boston, Massachusetts 02109-4075 like, with what considerations the lender and the hotel. Refreshments will be served. Tel: (617) 854-7555 or (800) 496-6799 Fax: (617) 854-7570 junior lienholders will likely be concerned www.reba.net and what documentation and information { PAGE 8 REBAnews OCTOBER, 2011

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617-896-5392 [email protected] OCTOBER, 2011 REBAnews PAGE 9 Taming the title defect beast with curative tracking

BY: WILLIAM A. SNIDER rep sitting at a desk trying to track down an officer of a defunct lender to sign a re- Curative tracking is the curing of lease. It didn’t take much convincing for title defects arising from a failure to her to get the state manager to agree to properly record all necessary documents refer all of its clients’ curative, as well as in order to maintain a chain of title that settlement tracking, to our company. is free and clear of any deficiencies. It’s It only makes sense when the adminis- the industry’s best weapon in its on- trative, clerical and secretarial staff was in going battle against the “Title Defect no way prepared or trained to be effective Beast.” But it’s also one of the most de- title curers. Curative tracking is best left tested duties in real estate practice. to the experts. It can be painstaking, time- Some of the names attributed to consuming, and frustrating work; not the the beast may be familiar: title defect, type of stuff that most title insurance at- cloud on title, chain of title defect, de- torneys and management signed up for, or fective title, etc. The weapon utilized should now be drafted into doing. to battle the title defect also has many Independent tracking companies names: curative tracking; title clearing; are willing to do the work at a signifi- title curing; title defect clearing; curing cant cost-savings to the title insurance chain of title defects, and so on. companies that were struggling with it, Almost all these situations arise either in-house, or even worse, paying through a missing release of mortgage, fees to outside counsel to handle it. and are brought to light by an informal I firmly believe that we are at a prec- or formal “title claim” under a title in- ipice regarding all aspects of title track- surance policy. These situations used to ing. This includes the “curative tracking” be handled at a paralegal level, or pos- that is the subject matter of this article, sibly between lawyers. Today, attorneys as well as the “settlement release track- are skipping this process and going Curative tracking is best left to the experts. It can be painstaking, ing” that ensures that all items paid-off directly to filing a claim, throwing the time-consuming, and frustrating work; not the type of stuff that most at a closing transaction are properly re- matter into the laps of the title insurers. leased in the land records. Both types Three things have worked in con- title insurance attorneys and management signed up for, or should of tracking dovetail perfectly: if settle- cert to make this the worst time for title ment release tracking is done correctly, defects, and therefore, curative track- now be drafted into doing. release-related title claims will not be ing, in our nation’s history. The first two made, and therefore there will be no are known: The title defect is a ticking need for curative tracking on the file. time bomb that can lie dormant for borrowers refinanced multiple times in industry after nine years, and I closed New developments, practices, and years before it’s discovered; many lend- a year, using up imaginary equity to pay up my real estate practice after more technology are notoriously slow to take ing institutions, servicing companies, off real credit card debt. With everyone than a decade. We collectively decided hold in our industry. This may have and even title companies and law firms, working to get these loans closed, very that someone had to clean up this mess, something to do with the fact that the come and go like ships in the night; and little attention was paid to what we now and that there might be some money to basic tenets of real estate law remain we are working in the wake of a refi- refer to as “settlement release tracking.” be made while doing it. Not only are unchanged since prior to the establish- nance boom, the volume and duration Our industry stuck our heads in the we still around, but we have steadily ex- ment of our very nation, let alone the of which was beyond anything the na- sand. No attention was paid to the ques- panded over this period in a less than bar. However, over time we have proven tion had ever seen before – a powerful tion of how these borrowers were going active real estate market. We went from ourselves to be more than capable of force that single-handedly brought our to make their payments, especially when a small regional player to a company separating the wheat from the chaff, and economy to its knees. there were more and more closings to with the capacity to track releases in ultimately embracing new ideas that perform. There was total chaos when it all 50 states. Witness the birth of the actually improve the process. Living in The title defect is a ticking time came to getting discharges and assign- independent release tracking company, Connecticut, I can tell you that if the ments on record in order to properly capable of handling both settlement “Land of Steady Habits” is capable of bomb that can lie dormant for release mortgages. All these elements release tracking, as well as the curative giving birth to the very concept of “set- came together to create the worst con- tracking of the elusive title defect beast. tlement release tracking,” then it is only years before it’s discovered. ditions our nation’s land records have With the current poor state of the a matter of time before all title tracking ever seen. These conditions required real economy, especially within the real estate will be performed by competent, inde- estate professionals to seek recordable sector, the title insurance industry staff pendent, and effective companies. The During the boom, things were mov- assignments and releases from a morass that survived the layoffs is being asked simple reason being that these compa- ing so quickly that no one took the time of former and current lenders. to take on more work and responsibili- nies have, and will continue to prove to stop and see just how crazy it had I thought there must be some way ties to make up for their shrinking num- themselves to be the ones with the drive, become. More than once, I performed a to make the process easier. A plan was bers. People who never would have had to expertise and resources to effectively get closing where the application was taken needed to address both the cleanup of deal with these types of issues have been the job done. that very day. Do a title search, get payoff the land records in the aftermath of the drafted into service. The problem is that information, and the lender was good to refinance boom, and to prevent any- management has much more productive William “Billy” Snider is the co-founder of go. The product wasn’t for us to ques- thing like this from happening again. things to do than deal with much of the Final Trac, LLC, a full service independently tion. “Stated Income,” “Interest Only” In 2006, my current business partner minutia involved in curative tracking. I’ve owned, discharge/release tracking compa- – just get the thing closed. Also, many left her position in the title insurance personally witnessed a successful sales ny doing business in all 50 states.

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PAGE 10 REBAnews OCTOBER, 2011 Mortgage takes priority over attachment Solans et al v McMenimen et al Consider the following fact pattern: Appeals Court answered both questions N Day 1: A executes deed of Blackacre for in the affi rmative. value to B; B executes mortgage of Black- A reasonable argument can be made, acre for value to C; but neither deed nor however, for the position that the fi rst mortgage is recorded until Day 3. question should have been answered N Day 2 (three months after Day 1): D in the affi rmative and the second in the obtains and deputy sheriff records a negative: general attachment against B. Question 1: B had notice of the at- N Day 3 (four months after Day 1): tachment on Day 2 (assuming it was not Deed from A to B and mortgage from an ex parte attachment; if it was an ex B to C are fi nally recorded. parte attachment, B presumably received notice thereof prior to Day 3). B’s delay in Questions: recording his own deed (whatever the rea- N D v. B: Is the attachment by D eff ec- son was for the delay) should not inure to tive against B’s fee interest in Black- B’s advantage by defeating D’s attachment acre? of B’s fee interest in Blackacre. N D v. C: Is the attachment by D eff ec- Question 2: A title examiner running tive against C’s mortgage interest in the title to Blackacre would fi nd on Day Blackacre? 3 the deed from A to B and the mortgage from B to C. Th e fact that both instru- In Solans v. McMenimen, Appeals ments were executed on Day 1 should Court Docket No. 10-P-1049, the Land not obligate the title examiner to have to Court answered the fi rst question in the run the title to Blackacre from Day 1. B’s negative and therefore did not reach the mortgage should have priority over D’s second question. On appeal, however, the attachment.

Th e Appeals Court rejected Starr’s ar- BROOKS POND gument that the Superior Court should have allowed his motion to dismiss for CONTINUED FROM PAGE 5 failure to include as an indispensable party the Commonwealth of Massachu- Lengthy period of by a party, as setts, fi led on the day of trial. Th e Ap- well as proof of circumstances that can be peals Court ruled that this motion, fi led reasonably understood only on the assump- “fi ve minutes” before trial was to start, was tion that a conveyance has been made, have made too late and so waived. supplied evidence upon which a fi nding of Th e lesson to be learned from this case, a lost, unrecorded deed may be presumed. as in many cases presenting contested issues, Since 1992, the Old Republic Title Insurance Group has held the distinction Poor makes clear that this important evi- is to look to the surrounding circumstances of being the highest rated title insurance group in the nation. dence of the surrounding circumstances will for corroboration, or lack thereof, of the supply the basis for inference of a lost deed. disputed proposition. Here, all of the deeds On the Great Pond issue, BPCA pre- from 1898 forward were for the entire in- sented the expert testimony of Robert terest in Brooks Pond, coupled with BPW’s Daylor, P.E., who testifi ed that he con- unchallenged exercise of full dominion and Wa nt to build your ducted historical research at the Worcester control over the pond since 1935. Th ere Registry of Deeds, State Archives, Harvard were no deeds or other evidence showing University library map collections, and a competing chain of title. Accordingly, the agency? Boston Public Library. He found two sur- Appeals Court held that the evidence am- We’ll make sure you do. As a title agent, you know that satisfied veyed maps, one from 1830 and one from ply supported the Superior Court decision. 1834, each depicting Brooks Pond to be customers make your business more successful — and rewarding. less than ten acres. Brooks Pond dam was Docket No. 2010-P-1116 2 That’s why Old Republic Title is committed to ensuring that you built about 1848, which created Brooks 26 Mass. L. Rptr. 411 (2010) and your customers stay satisfied. We’re a flexible, stable partner Pond in its present size. Daylor concluded Michael O’Neill of McGregor & Associates, P.C. providing unparalleled service and underwriting expertise you can that Brooks Pond was less than ten acres in its natural state, and so was not a Great in Boston has more than 25 years of experi- trust. Since 1992, we’ve been the highest rated title insurer in the Pond. Th e Superior Court adopted Day- ence in real estate and environmental law per- nation. And our $500 million single-risk limit* allows us to underwrite lor’s conclusion, and the Appeals Court mitting, land use and commercial litigation, and . Michael can be reached at all your projects, large and small. So you can count on us to be a ruled that the Superior Court’s ruling was [email protected]. partner in your success. amply justifi ed by the evidence.

S t r e n g t h a n d S t a b i l i t y f o r O v e r a C e n t u r y

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Underwriters in the Old Republic Title Insurance Group, Inc. are: Old Republic National Title Insurance Company, Mississippi Valley Title Insurance Company and American Guaranty Title Insurance Company.

Where permitted by state law and subject to underwriting approval. Contact us for the specific limits that may apply in a given state.* OCTOBER, 2011 REBAnews PAGE 11 Celebrating Bill Hovey: Th e original Avuncular Advisor 1985-2011

BY SCOTT PITMAN AND MICHAEL PILL restrictions. Th e seminar materials went Ultimately his through three editions from 1997 to 2001, Th is month the Avuncular Advisor and have been cited in several Land Court torch is passed on from its founder Wil- knowledge and his and published Appeals Court decisions. liam V. “Bill: Hovey, Esq., who began this willingness to freely give When we did the seminars, I usually said column in 1985 and continued as its prin- that the unwritten subtitle of Chapter 2 on cipal author until his passing in July, 2011. it allowed me to learn “Creation of Easements” was “My Apolo- Lawyers Weekly has asked Scott Pitman gies to Bill” because it relied on his outline and Michael Pill to try to fi ll Bill’s sizable and grow as a lawyer in of the many ways easements could be cre- legal shoes as co-authors. Scott was Bill’s ways that never would ated in Massachusetts. law partner at the Law Offi ces of William In 2005 Bill invited me to join him as V. Hovey, and he is continuing the fi rm un- have been possible as a co-author of 28 Massachusetts Practice: der that name. Michael is one of Bill’s co- Real Estate Law with Forms. Legal trea- authors of 28 Massachusetts Practice: Real sole practitioner. tise writing is not an easy craft, but Bill Estate Law with Forms. —Scott Pitman helped me learn how to do it. Although Land law is an arcane fi eld, where of- he continued as senior co-author, when ten “A page of history is worth a volume he later asked Boston attorney Darren of logic.” U.S. Trust Co. v. Eisner, 256 U.S. Baird to join us, he acknowledged that 345, 356 (1921) (Holmes, J., dissenting). he was choosing his successor. Darren For centuries its knowledge has been passed Practice: Real Estate and I will do our best to match the high on through the medieval guild tradition of Law with Forms. Legal standards established for that frequently apprentice learning from master craftsman. cited treatise by Bill and the other former Bill Hovey was an acknowledged master of treatise writing is not co-authors (Louis Eno, Dorcas Park & Massachusetts land law. Maurice Park). Th e phrase “Avuncular Advisor” was well an easy craft, but Bill Bill was a good friend and mentor. To chosen by Bill. Webster’s online Th ird New helped me learn how to this Iowa hick he was the quintessential International Dictionary, Unabridged (2002) New England gentleman. I once said in jest defi nes “avuncular” as “relating to an uncle … do it. —Michael Pill “You are so genteel I bet you go back to the acting or speaking with the familiarity, kind- Mayfl ower!” Without missing a beat he re- ness or indulgence of an uncle … .” Th at aptly sponded “Yes, both my wife and I can trace describes his relationship with both Scott our ancestry back to the Mayfl ower.” I will Pitman and Michael Pill, who want to begin Bill’s generosity with his time and his ancers and Litigators Guide to Easements miss him. their legal journalistic endeavor by sharing knowledge is legendary. Several times a and Land Use Restrictions” authored with readers their memories of Bill. week I take calls at our law fi rm from other by Bill and his then-law partner Devra This article was origionally published in the Scott Pitman has this to say about Bill: lawyers looking to pick Bill’s brain, as they Bailin, now-retired Land Court Judge September 5, 2011 issue of Massachusetts Bill had a large infl uence on my career had done at some past time. Th e fact that Leon Lombardi, and myself. Edward Woll Lawyers Weekly. Reprinted here with permis- and my life. I met him through a law school they continue to call is eloquent testimony joined the panel as the expert on land use sion of Lawyers Weekly. classmate, Allen Koenig, who became Bill’s to Bill’s generous spirit and large presence. partner in the mid-1990’s. (Sadly, and in an Th e Massachusetts legal community will be odd coincidence, Allen passed away just two the worse now he’s gone. Rest in peace, Bill. days after Bill did, despite being only 62 year old, due to brain cancer.) Among their Michael Pill remembers Bill in these many collaborations, Allen and Bill co-au- words: Having difficulty keeping up with the HUD-1 changes thored the legal forms volumes (15-16B) of I started reading the Avuncular Advisor the Mass. Practice series, beginning in the when it began in 1985, and soon became a and new industry regulations? late 1990’s. devoted fan. As a young sole practitioner I was a struggling solo practitioner when struggling to master title examination, con- SoftPro has all of your bases Allen and Bill asked me to take on litigation veyancing, and substantive real , responsibilities for them. Bill introduced I found in those columns a mentor I sorely me to the Massachusetts Department of needed. Environmental Protection (DEP) and its I met Bill in 1994 at a seminar on land covered! adjudicatory arm with Wetlands and Rivers law. During his presentation he spoke about Protection Act cases. He also introduced me the relationship between real estate convey- Not only was LPS SoftPro the first Closing, to the Land Court where I worked with him ancing and land use regulation. When he Title and Escrow software provider to offer on zoning, planning, and fi nished speaking I ran to the front of the an intuitive, user-friendly solution for the cases, among others. I helped Bill room, introduced myself and told him I had in his appellate practice as well. been struggling to fi nd a sponsor for a semi- new standardized HUD-1, but our When I joined a real estate conveyancing nar on that very subject. As a sole practitio- award-winning customer service and law fi rm in 2001, I phoned Bill frequently to ner in Shutesbury, with a law degree from software updates keep you current with ask about ancient deeds, arcane conveyanc- the University of Iowa, there was no reason ing language, how to use the proper words to anyone would let an unknown like me chair RESPA and industry regulations. Choosing create various forms of land ownership (ten- any legal seminar -- and they didn’t. Bill SoftPro means you’re getting: CLOSING AND TITLE SOFTWARE ancy in common vs. joint tenancy with right asked me to send him the seminar outline. A of survivorship vs. tenancy by the entirety, week later the Massachusetts Bar Associa- • Unlimited toll-free, • Most flexible networking life tenancy, etc.), the diff erence between tion education director called me personally, award-winning support capabilities warrant, quitclaim and release deeds), how eager to proceed with the seminar. Bill never • Largest document • Concurrent licensing to prepare documents properly for recording admitted to making a phone call, but it was library in the industry (not by user or workstation) at the registry of deeds, and what on earth obvious he went out of his way to help a to do with things like railroad rights of way. struggling younger lawyer. His name on the • Lowest system Bill never failed to assist, always had seminar materials and advertising literature requirements time to discuss these things that interested were a key to its success. him so much. I joined law fi rm of Hovey & A year later, Bill and I found ourselves Koenig full time in 2003, where I was able on opposite sides of a case before the Su- IT’S A WINNING to learn from the master every day. Bill’s preme Judicial Court. I wrote in my amicus calm demeanor and presence moderated brief that there were only three ways to cre- coMBINATIoN! the often extreme stresses of litigation that ate easements, and the court included that I was going through. Ultimately his knowl- point in its decision. Bill told me, in his typ- edge and his willingness to freely give it al- ical softspoken polite manner, that I was in- Get started with the #1 SOFTWARE today! lowed me to learn and grow as a lawyer in correct. He said there were many more ways Call or visit ways that never would have been possible to create easements than I apparently knew. 800-848-0143 as a sole practitioner. Among many others, Shortly thereafter, Bill phoned with a www.softprocorp.com. I consider myself lucky to be able to consult challenge to help him write the defi nitive his many books and seminar materials on treatise on Massachusetts easement law. property law. Th e result was the “Massachusetts Convey- PAGE 12 REBAnews OCTOBER, 2011

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