Closing Attorneys and The Closing Process

Our duties on behalf of the lender require that we examine the title to the premises. In addition, under the provisions of Massachusetts General Laws, Chapter 93, Section 70, we will also certify title to the premises you are buying. This statute states in part:

“In connection with the granting of any loan or credit to be secured by a purchase money first mortgage on real estate improved with a dwelling designed to be occupied or to be occupied in whole or in part by the mortgagor, the mortgagor is required or agrees to pay or be responsible for any fee or expense charged or incurred by an attorney acting for or on behalf of the mortgagee in connection with the rendering of a certification of title to the mortgaged premises such certification shall be referenced to the mortgagor and to the mortgagee.”

The statute further prescribes that:

“The certification shall include a statement that at the time of recording the said mortgage, the mortgagor holds good and sufficient record title to the mortgaged premises free from all encumbrances, and shall enumerate exceptions thereto. The certification shall further include a statement that the mortgagee holds a good and sufficient record first mortgage to the property, subject only to the matters excepted by said certification.”

Because the scope of our examination is confined to matters of record at the appropriate Registry of Deeds and Registry of Probate, our certification will specifically exclude the following matters:

1. Building and zoning laws for (Property City or Town) and other governmental statutes and regulations which have not been examined;
2. All applicable health, environmental and hazardous waste rules, regulations, laws and ordinances of the municipality, state and federal jurisdiction in which the premises is located;
3. Such taxes, assessments or municipal charges that may be due and payable and not shown on the Certificate of Municipal Liens or on the record at the Registry of Deeds or from information provided by the municipality;
4. Persons in possession;
5. Any lien or claim, any other tax liability, or any matter of bankruptcy or insolvency that may not appear in the indices of Registry of Deeds in which the said premises are located;
6. Any set of facts or errors in description not apparent on the record that would be shown by any accurate on-site survey or which a physical inspection of the premises may disclose;
7. Matters not of record; forgeries; errors and omissions in the records and indices of the Registry of Deeds and relevant Registries of Probate; lack of sufficient capacity or competency of grantors.

Additionally we will note for exception and your attention to significant easements, restrictions and other material matters of record.

This disclosure is made in advance of the closing to apprise you of the statutory language regarding certification of title and the scope of our examination of the title to the premises you are purchasing as well as the limitations of same. Please be aware that a policy of Owner’s Title Insurance would cover issues related to some of the exceptions noted above. Please call us if you have any questions.

This blog is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog you understand that there is no attorney client relationship between you and Lane, Lane & Kelly, LLP.