Title by DivorcePosted by jph on January 28, 2020 at 9:23 pm
The 2008 divorce judgement states, “Within thirty (30) days from the date of this Judgment, the defendant shall convey to plaintiff all of his right, title and interest in and to the marital residence situated at…….”
There has been no conveyance by deed. Does this Probate Court Judgment suffice?
The language used sounds like a conveyance is ordered to occur within 30 days. Or is this statement saying that it occurs just by this judgment alone? Is so, shouldn’t it be, “after thirty days”, instead of, “within”?
This is in Massachusetts, and I’ve never seen, or at least noticed this type of thing before.
Since there has been no deed conveyance, is the defendant in contempt? And then, who holds title? Both or does being in contempt make him forfeit?
- 18 Replies
- MemberJanuary 28, 2020 at 10:15 pm
I don’t do title. I can survey the property as described, but only the courts can determine title.
- MemberJanuary 28, 2020 at 10:52 pm
I’d say that he is simply in violation of a court order and that title has not transferred. Keep in mind that I am certainly no lawyer, just wanted to take a stab at this. Was the court decree recorded in the proper county or town hall? Keep us posted, this is an interesting situation.
- MemberJanuary 28, 2020 at 11:09 pm
Imagine this situation. Man ignores court order, for long time. Say, 10-20 yrs. Man pays taxes. Woman lives there, all that time. Woman dies. Man sells, title co. Misses it. What a deal!
Title is clouded, but heirs of woman don’t have $ to pay back taxes. So, on she sails…
- MemberJanuary 28, 2020 at 11:12 pmPosted by: @awhitlock29
IANAL but that’s my take on it, too.
The other party to the divorce should be going back to court to enforce the decree. I wonder if that person has been living in the house and not realized there was a problem. I wonder who is paying taxes on it..
- MemberJanuary 28, 2020 at 11:19 pm
I’ve seen a couple cop shows on TV over the years, that means I’m qualified to answer this, right?
I would assume a separate conveyance is required. But maybe if the owner fails to comply then the divorce judgement becomes the new deed.
Did this pop up in a title report or something?
- MemberJanuary 29, 2020 at 1:10 am
That is an interesting question about current practices or requirements in MA, but I believe in years past in MA (19th century, early 20th, maybe even more recently) it wasn’t rare for title to transfer by probate action without a deed being recorded ?? leading to some of the apparent breaks in the chains of grantees and grantors that you sometimes encounter.
- MemberJanuary 29, 2020 at 1:27 am
But is there a difference between the court ordering someone to make a deed versus the court declaring title is transferred?.
- MemberJanuary 29, 2020 at 1:32 am
That’s worse than fighting hillbilly neighbors.Can you say Hatfield and McCoy?
I see scratch marks in your future grasshopper.
- MemberJanuary 29, 2020 at 2:06 am
Was personally involved in a court decree involving abandonment, not divorce (a joint tenancy situation). The court decreed quitclaim deeds and compensation be exchanged to effect a partition, which I and the still living defendant (who resided on the property) did not perform. I didn’t do so on the advice of my lawyer and the case was in repose for a decade until the defendant died and I got title free and clear. Money well spent on the lawyer.
Adjudication concerning property rights is tricky and not the purview of land surveyors unless directly employed by the Court to do so. Title Insurance companies notoriously do not track judicial actions except when they are active litigants and/or deed exchanges are recorded. Their focus is on the Registry of Deeds record, ownership, mortgages, inheritance and subrogation matters. Our focus as surveyors should be this is what’s of record on the ground and if not served proper notice by the Courts through the Deed registry, Schedule B exclusions on a Title Report, or obvious discrepancies discovered in the course of a Boundary Survey, we should remain mute and conduct our survey based solely on the contemporary record.
But that’s just me; feel free to disagree and point out why.
- MemberJanuary 29, 2020 at 4:30 am
That is one of the overlooked responsibilities of your local Title Company and/or attorney.
They review title to the property and inform the parties the necessary paperwork of the missing elements needed to transfer property and how to initiate events to correct such errors.
It is not surprising that any one single error or omission is dealt with in dozens of different ways because they all have their own opinion.
- MemberJanuary 29, 2020 at 1:06 pm
It might have been conveyed and not recorded. In any case, if I recall in a tenancy by entirety one party can’t convey to a third party; the deed would be void. Different by jurisdiction I’m sure, definitely a question for an attorney in your area.
- MemberJanuary 29, 2020 at 1:19 pm
For those who replied that as a surveyor I shouldn’t be overly concerned with title, just location, I’m not. I was just confused by it, that’s all.
Town records still show the husband’s name as owner, but didn’t have a legal reference. In looking that up, I found the judgment.
The wife took out a mortgage a couple years ago, and it lists the deed into both and the judgment as the source of title. So it looks like the bank is content enough with that.
- MemberJanuary 29, 2020 at 1:45 pm
The most the bank can lose is any unpaid principal. She could lose everything she invests into the place, plus potential increases in value over time and dealing with the attempted foreclosure process the bank would insist upon.
- MemberJanuary 29, 2020 at 2:47 pm
As the saying goes, I am not a lawyer, but, IMHO, the best way to read a deed or other legal document is to read it word for word, not adding anything, not assuming anything, not feeling a word might have been left out, anything other than what is written. So in this case, I would be of the opinion that the person ordered to transfer title did not do so, and still holds title. Now, if more information were to come to light, my opinion could change. The title companies I have been working with lately have, for lack of a better term, not seemed to work very hard at running back a chain of title, often being surprised when we bring up a question of things like this.
- MemberJanuary 29, 2020 at 5:22 pm
ii) A division which may be created by any court of this state pursuant to the law of eminent domain, by operation of law or by order of any court in this state;
Check the state statutes, I’ve been involved in a couple. One the district court gave a landowner title to a road, another the court during a divorce split up lands from one tract to 4.
Far as I know the court decrees hold as title, but a lawyer would be needed in your state and for your situation.
I do know all the regulators and county attorney back off quickly when confronted by the court decree.
- MemberJanuary 29, 2020 at 5:32 pm
It’s a cloud on the title, like a reservation. If you know it, it’s in the public records, then refer to in your survey.
- MemberJanuary 29, 2020 at 6:58 pm
Not really looking for advice on this, but thanks. This is just an abutter to the lot I’m surveying. The description is consistent, and the boundary isn’t in question to me.
Was pretty much just trying to figure out what name to put on the plan, and I came across this and figured it was interesting enough to post.
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