Section 70. 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 by not more than four families and occupied or to be occupied in whole or in part by the mortgagor, an attorney acting for or on behalf of the mortgagee shall render a certification of title to the mortgaged premises to the mortgagor and to the mortgagee.
For the purposes of this section, said certification shall include a title examination which covers a period of at least fifty years with the earliest instrument being a warranty or quitclaim deed which on its face does not suggest a defect in said title; provided, however, that in the case of registered land, it shall be sufficient to start the said examination with the present owner's certificate of title issued by the land court, except that bankruptcy indices and federal and state liens shall be examined. The term record title, as used herein, shall mean the records of the registry of deeds or registry district in which the mortgaged premises lie and relevant records of registries of probate.
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.
The liability of any attorney rendering such certification shall be limited to the amount of the consideration shown on the deed with respect to the mortgagor, and shall be limited to the original principal amount secured by the mortgage with respect to the mortgagee. Said certification shall be effective for the benefit of the mortgagor so long as said mortgagor has title to the mortgaged premises, and shall be effective for the benefit of the mortgagee so long as the original debt secured by the mortgage remains unpaid.
Willful failure by an attorney to render a certification to the mortgagor as required by the provisions of this section shall constitute an unfair or deceptive act or practice under the provisions of chapter ninety-three A.
Notes of Decisions
Cited in
20
cases (
2 in the last 5 years), 1983–2023 · leading case:
Murphy v. Smith, 579 N.E.2d 165 (Mass. 1991).
Murphy v. Smith, 579 N.E.2d 165 (Mass. 1991).
· cites it 8× “[5] The plaintiffs argue that G.L.c. 93, § 70 (1990 ed.), provides a statute of limitations for legal malpractice based on negligent certification of record title extending for as long as the plaintiffs own the subject premises.”
Page v. Frazier, 445 N.E.2d 148 (Mass. 1983).
· cites it 4× “We recognize that the Legislature has modified the common law, to a certain extent, through the provisions of G. L. c. 93, § 70. As enacted by St. 1972, c.”
Salin v. Shalgian, 467 N.E.2d 475 (Mass. App. Ct. 1984).
· cites it 4× “See G. L. c. 93, § 70, inserted by St. 1972, c.”
Lyon v. Duffy, 934 N.E.2d 831 (Mass. App. Ct. 2010).
· cites it 5× “The order reporting the case identified the following questions of law: (1) “[w]hether an expired order of conditions *861 [OOC] affects title marketability”; (2) “[wjhether, other than the obligations imposed by G. L. c. 93, § 70,[ 2 ] an attorney representing a mortgagee owes…”
Spillane v. Adams, 922 N.E.2d 803 (Mass. App. Ct. 2010).
“They contend that this lineage is more than adequate to establish ownership, citing G. L. c. 93, § 70, and the title requirements of the Real Estate Bar Association.”
Kramer-Rutter v. Cinella, 7 Mass. L. Rptr. 85 (Mass. Super. Ct. 1997).
· cites it 2× “The parties concur on the applicability of G.L.c. 93, §70, which requires an attorney acting for a mortgagee to provide a certification of title to both the mortgagor and the mortgagee.”
Houston v. Greenwald, 11 Mass. L. Rptr. 647 (Mass. Super. Ct. 2000).
· cites it 12× “The defendant represented the plaintiffs’ mortgage lender, and purportedly rendered a certificate of title, in accordance with G.L.c. 93, §70. The plaintiffs subsequently discovered a title defect, and seek recovery under the following theories: violation of G.”
Cormier v. Murray (Mass. App. Ct. 2023).
· cites it 8× “This is an action alleging negligence and violation of G. L. c. 93, § 70, brought by the plaintiffs, Philip A.”
Mercuri v. Newhouse, 26 Mass. L. Rptr. 535 (Mass. Super. Ct. 2009).
· cites it 10× “Though there is limited information regarding the legislative history behind the adoption of G.L.c 93, §70, other courts discussing the provision have narrowly construed the certification duty imposed on the lender’s attorney.”
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