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COMMONWEALTH OF MASSACHUSETTS
LAND COURT
DEPARTMENT OF THE TRIAL COURT
CHECKLISTS FOR VOLUNTARY WITHDRAWAL OF LAND FROM
THE REGISTRATION SYSTEM UNDER THE PROVISIONS OF
CHAPTER 185, SECTION 52, AS AMENDED
The Checklists address voluntary withdrawal of both publicly and privately
owned land from the provisions of G.L. c. 185, § 52. Since the Land Court
Guidelines were last updated (as of February 27, 2009), G.L. c. 185, § 52 has been
amended. Therefore, until such time as the Land Court Guidelines are further
updated by the Court, the Checklists set forth herein should serve as guidance
when filing for voluntary withdrawal pursuant to G.L. c. 185, § 52.
With all voluntary withdrawals under the statute, a Subsequent Petition
(commonly referred to as an “S-Petition”) must be filed with the Land Court. The
Checklists outlined below, (one addressing publicly owned land and one
addressing privately owned land) set forth the materials to be submitted and the
procedures to be followed to process the Subsequent Petition for Voluntary
Withdrawal.
A. Land owned by the Commonwealth, or an agency, department, board,
commission or authority of the Commonwealth, or any political
subdivision thereof, or any authority of any such political subdivision
may have their land withdrawn from registration pursuant to the
following procedures:
1. The public entity which has acquired the registered land must file a
Complaint. This Complaint is to be drafted by the Plaintiff and is not the
Complaint referred to in the following section dealing with privately owned
land (and is therefore not the form of Complaint on the Land Court website).
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(a) The Complaint should include a brief description of the public entity,
including the source, whether statutory or otherwise, of the public
entity’s designation/authority.
(b) In those cases where the ownership of the land derives from an eminent
domain taking, and a new Certificate of Title has not issued in the name
of the public entity, the Complaint may combine the eminent domain
aspect of the case with the voluntary withdrawal. As with all eminent
domain taking Subsequent Petitions, the Complaint must allege
compliance with all the requirements of Massachusetts General Laws,
Chapter 79, relative to said taking.
2. File (a) an attested copy of the Certificate of Title or (b) if the Certificate of
Title has not been prepared, an attested copy of the deed(s) into the current
owner, and a copy of the most recent prior Certificate of Title.
3. The filing fee for the Subsequent Petition is $50.00.
4. Title examination by a Land Court examiner is required. The Court will
appoint an examiner pursuant to SJC Rule 1:07. (Any request for a non-
sequential appointment in accordance with the Rule must be made at the
time of filing the Complaint.) When the Court appoints an examiner, it will
send the Title Examiner Appointment Letter to Plaintiff’s attorney, who is
responsible for sending the Title Examiner Appointment Letter to the
examiner, together with a copy of the Complaint.
5. The title examination should run from the date of the outstanding Certificate
of Title and list all of the owners, mortgagees, and lessees, with an address
for each.
6. Notice to all mortgagees and lessees of record is required. If Plaintiff does
not submit the assents of all mortgagees and lessees, a citation will be
issued. Upon receipt of assents from all those entitled to notice, or their
default, the case will be treated as an uncontested matter, and presented to
the Court for its consideration. The Court will determine if further
submissions or a hearing are required. If any party notified files an
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opposition to the Complaint, the case will be treated as a contested case, to
be resolved according to the penultimate sentence of § 52.
7. A Court Order will issue for the withdrawal of the land from the provisions
of Chapter 185.
B. Registered Land owners, other than public entities, who qualify under
the statute, may have their land withdrawn from registration pursuant
to the following procedures:
1. Plaintiffs (all the owners of the property) must file a Complaint for
Voluntary Withdrawal of Land from the Registration System, signed by
either the registered owners or their attorney. The basic form of Complaint
is available on the Land Court website, but must be augmented with
allegations and exhibits, as necessary (see below).
2. Plaintiffs must file a Notice of Voluntary Withdrawal of Land from the
Registration System (“Notice of Voluntary Withdrawal”), signed and
acknowledged by all owners. The form is available on the Land Court
website.
3. The filing fee for the Subsequent Petition is $50.00.
4. File (a) an attested copy of the Certificate of Title or (b) if the Certificate of
Title has not been prepared, an attested copy of the deed(s) into the current
owner, and a copy of the most recent prior Certificate of Title.
5. Plaintiffs may voluntarily withdraw their land under the statute, as
amended, as follows:
if at least one of the following is shown: (i) the registered land
constitutes less than all of the total area of a single parcel or of 2 or
more contiguous parcels in common ownership; (ii) the registered
land consists of less than 10 per cent of the portion of the land area to
which an original certificate of title pertains and the rest of the land
area to which that certificate pertains was conveyed under this chapter
since the original registration; (iii) the owners of the registered land
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have submitted the land or satisfy the court that the owners shall
submit the land to chapter 183A or 183B or shall create interests in
the land to which said chapter 183B is applicable under section 3 of
chapter 760 of the acts of 1987 or satisfy the court that the owners
shall create those interests; (iv) the owners of the registered land
establish that the registered land is improved with an occupied
building not used or occupied as or in connection with, and not
designed or intended for use or occupancy as or in connection with, a
1-to-4 family residential dwelling; or (v) the court finds that the
owners of the registered land have demonstrated other good cause for
withdrawal under this section including, but not limited to, economic
hardship by reason of the land being registered which may include the
burdens and expenses of further dividing the registered land into lots
for separate conveyance (G.L. c. 185, § 52)
Sections (i) (contiguous and in common ownership) & (ii) (less
than 10%) under the statute:
(a) In cases under sections (i) and (ii) of the statute, Plaintiffs must
submit proof that their situation falls within the applicable section
by attaching to the Complaint relevant plans and deeds, which
support the allegations in the Complaint. There will be a review
by the Survey Department of all Complaints filed under sections (i)
and (ii). (The Court may require a certificate from a registered
engineer or land surveyor for verification.)
(b) There is no longer a requirement that registered land constitute less
than 50% of the total area of a single parcel or of two or more
contiguous parcels in common ownership.
Section (iii) (G.L. c. 183A & G.L. c. 183B) under the statute:
(a) In cases where Plaintiffs allege they have submitted the land to the
provisions of Chapters 183A or 183B, Plaintiffs must submit proof
of the facts alleged.
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(b) In cases where the land is to be submitted to Chapters 183A or
183B, there is no longer a requirement that the master deed, or
other timeshare document, be approved by the Court and registered
prior to withdrawal. Plaintiffs must have “. . . submitted the land
or satisfy the court that the owners shall submit the land to chapter
183A or 183B or shall create interests in the land to which said
chapter 183B is applicable under section 3 of chapter 760 of the
acts of 1987 or satisfy the court that the owners shall create those
interests.” (G.L. c. 185, § 52 (iii))
i. Plaintiffs’ or Plaintiffs’ attorney will provide the Land
Court with an affidavit of intention to record a master
deed and associated condominium documents.
ii. The Notice of Voluntary Withdrawal will only be
approved conditional upon the recording of a master
deed on the unregistered side.
iii. Registry District personnel will ascertain that the
master deed has been recorded or will oversee its
recording contemporaneously with the registration of
the Notice of Voluntary Withdrawal.
iv. The recording sheet that is provided to the Registry
Districts, by the Land Court, on which they report the
document number of the Notice of Voluntary
Withdrawal, will now contain a section in which the
recording information of the master deed will also be
reported.
Section (iv) (occupied, commercial building) under the statute:
(a) Plaintiffs may “. . . establish that the registered land is
improved with an occupied building not used or occupied as or
in connection with, and not designed or intended for use or
occupancy as or in connection with, a 1-to-4 family residential
dwelling.” (G.L. c. 185, § 52 (iv))
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(b) Once established to the satisfaction of the Court, withdrawal
will be allowed.
(c) Supporting documentation may include, but is not limited to,
Assessor’s records, surveys, photographs, and/or affidavits.
Section (v) (good cause) under the statute:
(a) When voluntary withdrawal is sought for “other good cause,”
the Complaint must set forth, with specificity, the grounds upon
which the Court is asked to find “good cause.”
(b) Under this section, the Court will determine, based upon the
facts and circumstances, the existence of hardship prior to the
appointment of an outside title examiner.
6. Title examination by a Land Court examiner is required. The Court will
appoint an examiner pursuant to SJC Rule 1:07. (Any request for a non-
sequential appointment in accordance with the Rule must be made at the
time of filing the Complaint.) When the Court appoints an examiner, it will
send the Title Examiner Appointment Letter to Plaintiffs’ attorney, who is
responsible for sending the Title Examiner Appointment Letter to the
examiner, together with a copy of the Complaint.
7. The title examination should run from the date of the outstanding
Certificate of Title and list all of the owners, mortgagees, and lessees, with
an address for each.
8. Notice to all mortgagees and lessees of record is required. If Plaintiffs do
not submit the assents of all mortgagees and lessees, a citation will be
issued. Upon receipt of assents from all those entitled to notice, or their
default, the case will be treated as an uncontested matter, and presented to
the Court for its consideration. The Court will determine if further
submissions or a hearing are required. If any party notified files an
opposition to the Complaint, the case will be treated as a contested case, to
be resolved according to the penultimate sentence of Section 52.
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9. Upon the filing with the Court’s Land Registration District of the Notice of
Voluntary Withdrawal endorsed by a Justice of the Land Court, it will be
noted on the Certificate of Title, which then will be canceled, the land
described in the Notice of Voluntary Withdrawal shall be deemed
withdrawn and shall become unregistered land, and the owners shall hold
title thereto at the time of such filing “free of all liens and encumbrances
existing as of the time of filing of the notice, including adverse possession
and prescriptive rights, as though a judgment of confirmation without
registration effective as of the time of filing of the notice had been recorded
under section 56A; provided, however, that the owners shall not hold title
free of the encumbrances set forth or referred to in section 46 and those
noted on the certificate of title or filed for registration before the filing of
the notice of voluntary withdrawal.” (G.L. c. 185, § 52)
10. The Chief Title Examiner and Survey Department will receive, from the
local Registry District, verification of the filing of the Notice of Voluntary
Withdrawal, with the document number and date of filing, and the
verification will be docketed in the Subsequent Petition case.
11. Plaintiffs’ attorney should be aware that they may want to record the Notice
of Voluntary Withdrawal of Land from the Registration System on the
unregistered side of the Registry to provide a starting point for the title on
the unregistered side. A “Register This Copy,” a “Record This Copy,” and
a “Copy” (the Copy is for the Attorney’s records) of the endorsed Notice of
Voluntary Withdrawal are provided by the Land Court.
Please note that any authority documents for the registered
owner(s) will be necessary at the time of the registration of the
endorsed Notice of Voluntary Withdrawal.
aveat:
C
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