Inquiry Notice for Registered Land
Many believe that land registration
obviates the need for researching title prior to the rendering of the decree. A
recent Massachusetts case illustrates how that approach can lead to difficulty.
Baker v. Town of Plymouth, 92 Mass. App. Ct. 1104 (Mass. App. Ct. Aug. 24, 2017).
In
Baker, the 1911 decree provided that
the "described land is subject to the rights of all persons
lawfully entitled thereto over a lane or way in extension of Nelson Street to
the sea." Nothing in the decree identified the persons (or properties) for
whose benefit those “rights” were created or when the creation took place. Soon
after the decree was entered, the land was subdivided into three lots, only one
of which (now owned by the Town of Plymouth) had sea frontage. The common owner
then sold all three lots. Baker is the present-day owner of one of the inland
lots and sought to establish an easement to the sea. The common-owner’s deeds
for the sea-front lot and the other inland lot (i.e. not Baker’s lot) each contain language subjecting them to the
rights of others over an extension of Nelson Street.
Although
the Court held the language of the decree was insufficient by itself to create
either an express or implied easement, it also held that “the language in the
original decree and the deeds of [the two two lots] would have prompted an examination of related registration records
to determine whether [Baker’s lot] has an easement over [the other two lots].
Had the town examined the records pertaining to [Baker’s lot], it
would have found sufficient indicia that [Baker’s lot] enjoys an easement over
the northerly portion of [the other inland lot]” (emphasis supplied).
Unfortunately
for Baker, the same pre-decree inquiry would have revealed insufficient
evidence of an easement over the sea-front lot.
Comment:
Only a handful of jurisdictions continue to have robust land
registration (“Torrens”) systems, but even those which no longer actively
register land can still confront questions of the interpretation of
registration decrees rendered years (sometimes, decades) ago. Examiners and
underwriters should be sensitive to vague or ambiguous language in Torrens
decrees and certificates. Further inquiry may be called for