Tag Archives: massachusetts title attorney

Representing an Out of State Client in a Massachusetts Real Estate Transaction–The “Massachusetts Rules” Can be Difficult to Comprehend

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When I attended a national law school almost 45 years ago, we would learn two sets of rules in almost every discipline–the law for 49 states and then the “Massachusetts rules”. Today, after practicing law in Massachusetts as a real estate lawyer, I must admit to each of you that the “Massachusetts rules” continue to operate loud and clear, and they can be downright confusing for people who are not used to them. At this time of the year when we all try to “give back”, I have decided to give you some examples of the “Massachusetts rules” with the thought that if you have further questions, you can check my profile and contact me directly. One of my New Year’s resolutions is “I promise to return each inquiry on a prompt and courteous basis”.

Here goes:

     1. Quitclaim Deeds Are the Standard Not the Exception.   In some of the western counties of Massachusetts, and sometimes on Cape Cod, I have seen Warranty Deeds used for conveyancing. Warranty Deeds are not, however, the normal type of Deed which is delivered at the closing. The standard Deed is the Quitclaim Deed, which at first blush, can drive an out of state practitioner wild with fear. You see, in most states, a Quitclaim Deed is what it sounds like. “I am not sure if I have any interest, at all, in this property, but if I do, I am conveying it to you, or words to that effect.” In Massachusetts the Quitclaim Deed says much more. Among other things, the person executing a Quitclaim Deed in Massachusetts warrants that the granted premises are free from all encumbrances made by the grantor, and the grantor and his heirs, successors and assigns will defend the title against all person making claims through, or under, the grantor. In other words, the Massachusetts Quitclaim Deed has similar characteristics to the Warranty Deed in other jurisdictions.

     2. Massachusetts Attorneys Run Almost all Purchase Closings.   Because there is a statute which requires an attorney to render a “title opinion” in every residential purchase to the extent of the purchase price, Massachusetts attorneys continue to conduct purshase closings and serve as closing agents. That is not to say there are not title companies, so-called, in Massachusetts. It just means that the title companies generally work for, or are owned by, attorneys. The concept of “going into escrow” really does not exist under the “Massachusetts rules”.

     3. In Most Purchase Transactions, the Attorney Serves as the Agent for the Title Insurance Company and Writes the Policy.  This part of the “Massachusetts rules” is really a function of the title opinion statute referenced above. Since the Massachusetts attorney is certifying the title, it has proved more convenient for the title insurance companies to use the attorney as title agents.

     4. Despite all these Differences from other Jurisdictions, Title Insurance in Massachusetts is not as Expensive as in Other Jurisdictions. In keeping with all the other idiosyncracies in Massachusetts, you will not be surprised to learn that the cost of title insurance is not regulated in Massachusetts. In point of fact, I have found that most title insurance costs $4.00 per thousand for an Owner’s Policy and $2.50 per thousand for a Lender’s policy. If Owner’s and Lender’s are purchased simultaneously, there is a $175 extra charge. I am told that these rates are in the low to middle range of title insurance charges nationally.

As my clients start to obtain mortgage financing more and more on the Internet, our firm has been doing more and more work for out-of-state Lenders. If any of you fall into that category, please feel free to use Topkins & Bevans as your “source” for Massachusetts mortgages. We have lived with the “Massachusetts rules” for a long time, and we are comfortable wending you through them should you have the need.

Confidence and Humility–Get the blend right and the world will beat a path to your door

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In Massachusetts, where I practice, we have been very fortunate in having excellent professional sports teams, with enlightened management. Only the Bruins, our representative in the National Hockey League, has not won a championship in the 21st century. The Patriots have won three times, and the Red Sox twice.

Still, there are times of frustration for New Englanders as fans, and last night’s Patriot’s 34-35 loss to Indianapolis surely ranks as one of the most difficult pills for me to swallow as a sports fan. What made it worse for me was the rather blase manner in which Bill Belichick tossed off a bad decision late in the game, and never just said “I made a mistake”.

That smug attitude in defeat got me to thinking about what I would have done in a similar situation. I have been practicing real estate law in Mssachuseets for more than forty years, and I have made many mistakes along the way. There was a time when I would make excuses for my mistakes, or, worse yet, blame others for problems I created myself.

Just about the time I started getting things done on time rather than making excuses why I had not, I realized that most clients would accept an honest apology, especially when it is coupled with an action plan to fix the problem. In fact, i have had some of my best triumphs after I started out in the worst of positions.

Americans are great “forgivers”. They are ready to give people a second chance almost all the time. Keep that in mind when you are practicing your profession. Lying, or making lame excuses, is not the course of action for a person of integrity. Admit what you did wrong, and try to fix it. If you demonstrate humility now and again, you will endear yourself to those people who sought you out because of your confidence and talent.

There is a balance there, and we should seek it every day. Coach Belichick should have just said he made a mistake. We all do, and with his track record, he is entitled to a few. So are all of us.

Delinquent Common Area Fees–The Only Policy is ZERO TOLERANCE

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It was the late 1980’s. Condominiums in Massachusetts were literally going “broke” because unit owners were not paying their common area fees. That meant that water bills and common electricity bills were not being paid. The towns and utilities tried to work with the Trustees to the extent they could. In many situations, Condominiums went bankrupt because the amounts due and owing got “out of hand”.

But help was on the way. Condominium Trade groups organized in states across the country started drafting new, and effective, legislation which gave Condominiums some clout with the Unit Owners. Massachusetts adopted this statute in 1992. It should have proved a Godsend, but unfortunately, it has not. There are still condominiums in trouble because of delinquencies. The statute involved, which has become part of Section 6 of Chapter 183A, is not being used to its fullest capacity.

In effect the new statute gave the Trustees tremendous power to collect. Fall behind by 60 days or more, and the Trustees can commence an action against you, force you to pay penalties and legal fees, and if you do not get caught up, sell your Unit at foreclosure and wipe out all mortgagees.

The last sentence is the important one. Once this type of action is commenced, the only thing the Trustees need to do is notify the Mortgage Lender(s) for the Unit. It has been my experience that the Unit Common area fees get “caught up” in days. WHY, you ask? Because if the Lender does not pay, in full (including attorneys fees and penalties) the Lender will lose out on the collateral.

So, my advice to each and every person reading this post who owns a condominium is to question your Trustees to make sure they have an automatic procedure for collectionm once Common Area fees become 60 days deliquent. If they so not, they should, and there should be zero tolerance for not proceeding. The enforcement action costs the Condominium nothing!!!!

If any of you have further questions on enforcement procedures, please contact me at etopkins@topbev.com. This is an important Condominium right, and SHOULD NOT EVER BE IGNORED OR DELAYED.

The post set forth above was originally included in my blog, www.realtorsresourceblog.com, which is intended to assist the real estate profession with various topical issues. I am an experienced Massachusetts real estate and estate planning attorney. I hope you will find these materials useful.