A Legal Look

May 28, 2002
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The big and small of title registration.

A handful of states have a system of title registration sometimes referred to as the “Torrens System” or the “Land Court”.1 Title registration differs from the common recording system in many important respects. In a recording system, a primary function of the recording agency, whether it be a city, town, borough, county or state, is to provide public notice of claimed interests in land. Recording agencies do this by accepting documents presented to it by the public and by indexing and placing these documents on record. The government agency responsible for recording deeds, plans or other instruments takes no position relative to title. Although these agencies will often have regulations governing the form or contents of the documents that must be satisfied prior to their acceptance for recording, the government makes no positive assertion to the public as to the state of title described by the documents that are recorded. The public is left to make its own determination as to the state of title of a particular parcel of land.

In contrast to the recording system, in a title registration system the government certifies title to land. Title to a parcel of land is “registered” by the state. In some cases, as in Massachusetts, in addition to certifying title, the state also establishes the actual boundaries of the property. The state issues a certificate of title that identifies the owners of the land. The certificate of title also lists any encumbrances to the land, such as easements, mortgages or liens. In most jurisdictions, the original certificate of title is kept by the registrar and a duplicate certificate of title is issued to the property owner. When property is conveyed or encumbered, the original certificate of title is amended to reflect the changes in title. The certificate of title should therefore be conclusive and represent the existing state of title of a particular parcel of land. From the perspective of a land surveyor researching ownership or encumbrances applicable to a parcel of land, it should not be necessary to look beyond the certificate of title. Researching registered land is therefore a much simpler and more efficient process compared to searching through scores of conventionally recorded documents, particularly when the researcher must depend on grantee/grantor indexes.

The title registration system found in the United States is based on the system devised by Sir Robert Richard Torrens who held the position of Premier in Australia in the 1850s. He adopted the English system for the registration of title to ships to the registration of real property in Australia. Although there is some argument over who actually devised the method of land registration, it was Torrens who was responsible for being the first to successfully place the system into law. After its adoption in Australia, the Torrens System went on to receive worldwide acceptance.

It was previously noted that in Massachusetts, in addition to certifying title, the state also establishes the actual boundaries of the property. Once established by the Land Court, the boundaries are not subject to relocation without a court order. A land surveyor surveying property abutting registered land has no authority to “interpret” the locations of boundaries previously established by the court. The boundaries are fixed. Even if the surveyor were to uncover evidence strongly suggesting that the boundaries of the registered parcel were incorrectly determined, the surveyor would have no authority to relocate those boundaries without first obtaining judicial consent. This situation can create some interesting problems for the surveyor, as illustrated in the following example.

An Example

A recent perimeter survey of a parcel of (unregistered) land disclosed that one boundary, over 2,000 feet in length ran along abutting property that had been registered some 70 years prior. The Land Court plan for this property showed precise dimensions along the line. The plan also showed that the line ran along a meandering stone wall, causing the boundary to consist of a number of different courses and distances. Some of the angles in the wall were marked with drill holes. It was clearly the intent of the original surveyor and the Land Court that the middle of the stone wall be the boundary. It should be noted here that prior to filing a complaint with the Land Court to register a parcel of land, the owner must hire a professional land surveyor to survey the property and prepare a plan suitable for presentation to the Court. The Land Court doesn’t do the survey. In Massachusetts, any registered professional land surveyor is presumed competent to perform land surveys for presentation to the Court.

The original drill holes were recovered and a substantial number of locations were made fixing the actual location of the wall center line. Using the drill holes it was possible to reproduce the locations of the boundary established by the Court within the precision requirements prescribed by the Land Court rules. The problem became apparent when it was discovered that the actual wall locations differed substantially from those shown on the Land Court plan. Holding the boundary as established by bearings and distances shown on the Land Court plan would place much of the stone wall off the registered land and onto the abutting unregistered property. Evidence pointed to the fact that the wall was in its original location and had not been moved since the Land Court survey had been made. Clearly, the original surveyor did not take as many wall locations as he should have.

The surveyor was required by the client to prepare a plan suitable for recording and the line under consideration had to be shown on the plan. The stone wall at issue was called for in his client’s deed as a bound. The same wall was also called for on the Land Court plan, and arguably, by incorporation of the plan into the certificate of title. There was ample case law holding that physical evidence called for in a description should take precedence over dimensions. If physical evidence of the boundary should be controlling, how could the wall locations be reconciled with the dimensioned lines as they had been fixed by the Court?

After consultation with the Land Court, the surveyor was advised that the dimensions as shown on the Land Court plan were inviolate and must be held as the boundaries defining the perimeter of the registered land. However, where it was clear that the boundaries of the registered parcel did not comport with actual ownership, the wall center line should control the extent of ownership. The end result was that the owner of the registered parcel owned some of his land as registered land and some of it as unregistered land. Where the stone wall deviated from the registered boundary toward the abutting property by a few feet, the narrow strip of land lying between the registered boundary and the wall was still owned by the registered land owner with the difference that the land so owned was not subject to registration of title. In this case, the certificate of title did not specifically call for the stone wall; only the Land Court plan called for the wall (although it would seem arguable that the plan was incorporated into the certificate of title by reference). It was implied that had the certificate of title specifically called for the wall, the result may have been different. In that case, the registered land may have run to the center of the wall, wherever the wall happened to be. In a case like this it would be in the surveyor’s best interest to show both lines on the plan and clearly label them as to what they represent.

This example is not an exception to the rule that a surveyor may not alter the boundaries of registered land. In this case the registered boundaries remained unchanged. If the wall had meandered so that the boundary of the registered land extended beyond the wall toward the abutting property, the surveyor’s client would have had to resort to litigation in Land Court in order to claim ownership to the wall, thereby claiming an interest in the abutter’s registered land. As this situation is precisely what land registration seeks to avoid, barring exceptional circumstances, the claimant would probably not be successful. The previous example is somewhat of an interesting aberration. In most cases when surveying registered land or property abutting registered land, the surveyor need only tie into or re-establish the line as it was defined by the Court.

Surveying Registered Land

In Massachusetts, where a registered parcel of land is subdivided, a survey and plan, made in accordance with the Land Court rules must be submitted to the Court for approval prior to any conveyance of a portion of the subject property. When dealing with planning boards or other local authorities who have their own rules and regulations governing what should or should not be shown on a plan, a surveyor’s patience and tact is sometimes put to the test in attempting to satisfy both the local and the Land Court requirements. This is particularly true in cases where a local board may not appreciate the very specific constraints imposed upon the surveyor by the Land Court regulations.

The plan shown is an example of a survey made for presentation to the Land Court. The survey was to re-subdivide the lots shown in the lower left corner of the plan. The parcels containing the notation “LC 6530” etc., are other Land Court surveys that have been performed in the surrounding area. Notice that the traverse lines and location lines are shown on the plan in red ink to differentiate engineering information from the boundary information in black. All locations are tied to two points on the traverse lines to ensure that there were no errors made locating physical evidence. As can be seen from the plan, although the small lots are the primary subject of the survey, the traverse has been substantially extended to include ties to other evidence in the surrounding area.

Title registration offers far more title protection than the recording process, even when it is combined with title insurance. However, the system is not perfect and statutes governing title registration often include exceptions such as liens by the government, property tax and special assessment liens, to name but a few. Another possibly important exception to registered title is encumbrances existing prior to title registration where the holder received no notice of the registration process. Although statutes governing land registration may impose time limits on filing a claim against registered land, lack of notice may give rise to constitutional issues potentially overriding any statutory protection. Where property is subsequently sold to a good faith purchaser for value, it is likely that a prior claim would have been extinguished and not be effective against the new owner.

Land surveyors must be mindful that title registration statutes often provide that the doctrines of acquiescence, adverse possession and prescription have no application to land that has been registered. In surveying land for presentation to the Land Court for registration, surveyors should understand that the surveyor’s duty lies first with the Court and not primarily with the client. It is the surveyor’s duty to study all the available evidence and make a decision regarding the location of the boundaries based on the evidence. If a client desires to claim a boundary which, in the surveyor’s opinion, is not supported by the evidence, the surveyor can show the claimed boundary on the plan; however, the surveyor may be well advised to clearly note that the line is a boundary claimed by the client and not one that the surveyor necessarily believes is supported by the evidence.

From a surveyor’s perspective there are benefits inherent in the land registration system. In surveying registered land, at least in Massachusetts, the Land Court is the final authority as to the determination of the boundaries. Although the surveyor is required to perform thorough research, consider all of the evidence and provide the Court with an opinion regarding the location of the true boundaries, it is still the Court—not the surveyor—who makes the final determination. Where the record information is ambiguous or there is a lack of or conflicting evidence, a surveyor may breathe a sigh of relief that it is the Court, not the surveyor, that will bear the final responsibility for boundary establishment. Additionally, the client will have the benefit that the boundaries will have been established with finality. One reason why many surveys end up in Land Court is because there are ambiguities in the record information or conflicting evidence making the boundary locations uncertain. Performing surveys for Land Court can be difficult and time consuming. However, when the Court upholds the surveyor’s interpretation of the boundaries in a difficult survey, the work can be very gratifying.

Land Court Limitations

The Land Court has very limited jurisdiction. In general, only cases having to do with interests in real property may be heard by the Court. One outcome of this is that Land Court justices are extremely knowledgeable when it comes to land issues. That’s all they do. Cases are decided by the justices without a jury. From the perspective of a litigant having a meritorious case, there may be some comfort in knowing that there is no jury, perhaps hopelessly confused by the unfamiliar and archaic legal principles inherent in real property law, which might be swayed away from the facts by the clever machinations of opposing counsel. In Land Court, the case will most certainly be decided on its merits.

Although title registration would seem to be a substantial benefit to property owners (and to land surveyors) and many legal scholars continue to support the system, its limited use may be indicative of certain problems that have so far hampered wide acceptance of title registration in the States. Excessive cost and time delays are often associated with the registration process. In Massachusetts for example, title registration requires the submission of a very comprehensive survey and detailed plan. The Land Court has stringent requirements regulating performance of the survey and how the plan must be drafted. In all fairness, it must be noted that these requirements are not unreasonable under the circumstances. However, because of the time involved, the cost of performing such a survey is still very expensive, and the client must bear the increased cost over a conventional survey.

The registration process is time consuming; it is not uncommon that three to five years will pass before a decree is issued. In title registration systems, the state takes an active role in assuring title, statutes often provide for assurance funds, much like funds maintained by title companies to pay damaged property owners for losses incurred as a result of a defective title. These funds may, however, be inadequate and the funds do not usually pay the property owner’s attorney fees, which may be considerable. It should also be pointed out that title companies, who may view title registration as competition, are often strongly opposed to the system. If politically influential, these companies may be effective at thwarting legislative attempts to implement a title registration system.

It would appear for the reasons cited above that title registration may not have a rosy future in the United States. However, with proper legislation, many of these obstacles could be overcome. Land registration can be a great benefit to land owners and land surveyors alike. Perhaps the states should take a closer look at the benefits and seriously consider implementing a revised and more efficient form of land registration.

1 Title registration has existed to some extent in several U.S. states.

Disclaimer: Neither the author nor POB intends this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.

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