Cranberries have long been praised for their many important health benefits. But a recent appellate case, Williams Bros. v. Peck, reveals they may have another curious property: The power to give title examiners headaches.
"[The case] does raise a problem for people relying on a certificate of title on registered land," said Ed Bloom, a partner at Boston-based law firm Sherin and Lodgen and past president of the Real Estate Bar Association.
The case involves two parcels of land in Marshfield, one of which had long been operated as a cranberry bog. In order to operate the bog, the owners took advantage of certain easements over a neighboring parcel, cutting back trees and digging up sand.
But when developer Williams Bros. bought the neighboring land, it claimed that the bog owners had lost their rights to use the property for sand and other necessities in the 1970s, when the two parcels were briefly owned by the same company. The appellate court agreed, writing that it has long been common law that the merger of two properties extinguishes any easements, because if one person owns both parcels, they automatically have the right to do whatever they wish with them.
The reason that might cause headaches for title examiners is that the bog and its easements were "registered land."
Registered Vs. Recorded
Massachusetts has two parallel systems of proving who owns a piece of land, "recorded land" and "registered land." The vast majority of land in the commonwealth is recorded land. The principals of land recording go back to the Middle Ages – essentially, each owner of a piece of land has to prove his rights to it through a clear chain of title going back to the original land grant.
But although changes in title or claims against a piece of land are almost universally recorded at the registry of deeds, under the "recorded land" system it is possible for a legitimate transfer of rights to be made without being it being recorded at the registry.
That means that whenever a piece of recorded land is bought or sold, the chain of title must be carefully scrutinized – and it’s the reason that lenders require borrowers to buy title insurance to ensure that in those rare instances when a problem crops up in the chain of title, they’re protected from loss.
The second system – the Torrens, or "registered land" system – attempts to do away with the problems of verifying the chain of title. The system was first proposed and put into operation in Australia in the 19th century, after a wave of frauds resulted in many landowners losing title to property they thought they had purchased. It was implemented in Massachusetts in 1898.
Under the registered land system, after a strict examination to ensure clear title, a record of the property’s exact dimensions and any related rights or easements are recorded, and any subsequent sale or purchase must be recorded in the registry. In exchange for registering the land, owners are granted "indefeasible" title in the property – any subsequent purchasers can simply rely on the registry rather than having to verify the whole chain of title.
Since it’s more time consuming and costly to register land, many purchasers have been content to use the recorded land system. But for land owners seeking peace of mind over an important parcel, the registered land system has been a bulwark against competing claims.
But, it turns out, not a foolproof one.
‘A Trap For The Unwary’
Despite the fact that the easements were written into the title when the land was registered in the Williams Bros. case, they didn’t hold up after the parcels were briefly merged.
"The lesson learned from this case and others is that certificates of title are not as absolute as some people may think… particularly with respect to listed rights over another person’s land," said Gareth Orsmond, an attorney with Boston-based Rackemann, Sawyer & Brewster and a land-use-law specialist
The trouble is, there’s no way to tell from the registered title whether or not something like the events in the Williams Bros. case have previously occurred – not without doing the type of extensive title search that registering land is supposed to obviate. The court itself acknowledged as much in its decision, writing, "We recognize that problems might exist for title examiners in such situations….it appears that the Pecks had no information, other than the knowledge that would have resulted from a thorough title search, that would have led them to believe that their easement had been extinguished."
But the judges could offer no solution to the problem, noting that "the administration of the land registration system is not equipped to examine the possibility that appurtenant easements may previously have been extinguished by merger when issuing a new certificate of title."
The decision may therefore undermine the reasons for going through the expensive and time-consuming process of registering land in the first place, and leave some current owners of registered land in doubt as to whether they retain the rights listed on their certificate of title.
"It’s too broad a statement to say, ‘why bother registering if you have to do this other check,’" said Bloom, pointing out that registering land will still allow a landowner to prove there aren’t any encumbrances on their own property.
But the case does make clear that if a landowner has any rights over adjacent property, "those are not protected by the registration system," he said.
Calling the decision, "a trap for the unwary," Richard Serkey, the Peck’s representative and a partner at Winokur, Serkey & Rosenberg in Plymouth, told Banker & Tradesman he plans to appeal the case.
