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Instruments in Land and Offensive, Illegal Restrictions

From time to time, title examiners and real estate practitioners come across deeds or other real property instruments that include clauses shocking to a modern reader. Through inattentiveness, sloppiness, or ignorance of the drafter, these clauses sometimes carry forward long after their legality has been voided. This clause, for example, is reported to have been included in a 2006 deed: “This land shall not be sold, leased, or rented to any person other than the Caucasian race or to any entity of which any person other than of said race shall be a member, stockholder, officer, or director.”

The legislature first enacted M.G.L. c.184, §23B in 1969 to void any condition, restriction, or prohibition in an instrument relating to real property purporting to limit its use on the basis of sex, religion, race, color, or national origin, with a limited exception for religious property. On July 1, 2021, the Land Court issued Standing Order 2-21, which provides remedies for provisions in the chain of title of recorded or registered land that are void under Section 23B. Effective October 1, 2021, an owner of land, a holder of an interest in land, the Recorder, or the Registry of Deeds may file a complaint in Land Court to declare a provision that violates Section 23B to be void. The complaint has no filing fee. In addition, all newly issued original and transfer certificates of title and memoranda of condominium unit owners must contain the legend with language dictated in the Standing Order that expressly states that terms with prohibited restrictions are void.

The Chief Title Examiner issued a Memorandum simultaneously with Standing Order 2-21 to all Land Court Registration Districts. Also effective October 1, it details the procedure to be followed for registered land or memoranda of condominium unit ownership if Districts encounter a prohibited restriction in the chain of title but not in the certificate or memorandum itself, or if an individual submits a document for registration that includes a prohibited restriction. The District is directed to issue a new certificate without the prohibition in the case of certificates that expressly include a prohibited restriction. Certificates in the chain of title but not in the certificate presented for registration shall be amended by the filing of a complaint by the Assistant Recorder of the District to declare the provision to be void. The pendency of the complaint may delay the issuance of a new transfer certificate of title.


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