Category Archives: Litigation/Disputes

Clash of the Condominium Owners

    We all know it is getting harder and harder to find our little piece of this earth to call our own. Housing prices continue to rise and the demand for houses has only gotten more competitive. This have never been more true than on Cape Cod, where one condo owner believed they owned more than their deed described.

    In a recent Land Court decision in Barnstable County Massachusetts, an owner of a condominium filed suit against the Trustees of the Condominium, stating they have acquired a piece of the common area property as their own property through adverse possession. Adverse possession is law designed to promote the use of land throughout the Commonwealth. In Massachusetts to acquire land through adverse possession, one must have exclusive use and control of property for over 20 years. This use must be done openly, so that the owner would be able to see another using the property. The person using the land must also not have permission to use the land. In the case at hand, the plaintiff met all the requirements of obtaining the common area land as their own via adverse possession.

    In this case the judge ruled against the plaintiff. Even though all the requirements for obtaining land via adverse possession were met, it violated the Massachusetts condominium laws, stating each condo owner already owns a proportional, undivided interest in the common areas, which can not be modified without the consent from the other owners in the association, and a modification of the Master Deed would be required. Furthermore to award the property to one owner via adverse possession would make the laws pertaining to the governing of condominium associations meaningless.

    It’s understandable why the court came to this decision. As more and more condominiums are built, we need well defined laws to allow them to peacefully and independently run.

    Thinking of buying or selling a condominium? Do you have questions about your current condominium or its association? Contact us at Topkins and Bevans, we have decades of experience in all types of real estate law, including condominiums.

Massachusetts Court of Appeals rules that a deed notarized improperly is unenforceable?

The Massachusetts Appeals Court in Allen V. Allen ruled that a deed signed by a grantor but not acknowledged by the grantor before a notary was not enforceable. This was family transaction involving the family home in Lexington. The matriarch of the family Ethel began the process of moving from her Lexington home to live with one of her daughters, Nancy in 2001. Ethel’s son Harold claims that a deed from Ethel executed on July 23, 2001, conveyed the house to him and Ethel as joint tenants. This deed is the subject of the litigation. An Attorney prepared the deed and notarized it. The acknowledgement (notary) was dated July 23, 2001, and it read: “Then personally appeared the above named Ethel M. Allen and acknowledged the foregoing instrument to be her free act and deed, before me”. The attorney then recorded the deed on August 10, 2001.

Later that year, on November 30, 2001, Ethel established the Allen Realty Trust and executed a deed conveying the Lexington property to herself and to her daughter Deborah as co-trustees of the Trust, reserving a life estate for herself. Ethel specified in the trust that the property would be sold upon her death and the proceeds divided among several of her descendants, including Deborah. This deed was recorded on February 8, 2002. Ethel died on December 20, 2009. It was at this time that Harold revealed the July 23, 2001, deed. Neither Deborah nor her sister Nancy nor the attorney who prepared the November deed had discovered Harold’s deed. When the second deed was recorded no title examination was done. Deborah commenced a litigation in January of 2010. Her suit disputed Harold’s claim to the property and sought to declare the deed to him was unenforceable.

The judge at the trial found that Ethel’s signature on the July deed was authentic. But he determined that Ethel never appeared before the attorney/notary to acknowledge the deed. The judge found that Ethel had signed the deed in front of Harold; he then brought it to attorney/notary for his signature, and then the attorney had notarized the deed without Ethel in his presence.

The Land Court ruled that the deed was unenforceable because it was improperly notarized. It was not sufficient that Ethel had signed the deed. She had not confirmed before the notary that the deed had been her free act and deed. The deed because of the invalid acknowledgement was not entitled to be recorded as the Registry of Deeds. The Court stated “We therefore conclude that the latent defect in the certificate of acknowledgment of the July deed prevented it from giving constructive notice to Deborah of the prior conveyance.” The Appeals Court affirmed the Land Court’s findings in its decision.

There were other arguments made by Harold which all also failed. Always remember that a document cannot be notarized unless you are in the presence of the notary when you execute it or when you acknowledge that your signature was your free act and deed. Also whenever you have a document conveying an interest in real estate recorded, have the title checked for any other matters first and then record your document.

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