Title in Massachusetts: What the Search Finds and Whose Policy Protects You

Title is the least discussed line on a Massachusetts closing statement and one of the few that can matter enormously years later. It also contains a distinction that costs buyers money every week: the title work you pay for at closing is done for your lender, and the policy it produces pays your lender.

Massachusetts is an attorney closing state

A licensed attorney conducts the closing and certifies title. In practice the lender selects, or approves, the attorney who does the title examination — and even though that attorney's fee appears on your side of the settlement statement, the client is the lender. This is not a scandal, it is simply the arrangement, and knowing it is what makes the case for having your own counsel from the offer onward rather than from the P&S.

What the examination actually covers

The examiner searches the Registry of Deeds for the county in which the property sits, and by convention goes back fifty years to establish marketable record title. What they are looking for:

The chain of deeds, and whether each conveyance was validly made.
Mortgages, and whether prior ones were properly discharged. Missing discharges on paid-off loans are a routine finding.
Attachments, judgments, and federal and state tax liens.
Easements — utility, drainage, access — and restrictive covenants.
Takings and layouts by the town or the Commonwealth.
Probate, where a deceased owner appears in the chain.

Separately, a municipal lien certificate is ordered from the town to establish what is owed in property tax, water, sewer and betterments as of the closing date.

Recorded land and registered land are not the same system

Massachusetts runs two. Most property is recorded land: documents are filed at the Registry and title is established by examining them. A minority is registered land, brought under the Land Court, where the Commonwealth issues a certificate of title and, broadly, an encumbrance that does not appear on the certificate does not bind the property.

Ask which one you are buying. It changes how the search is done, what your attorney needs to file after closing, and occasionally the timetable. It is a one-sentence question with an occasionally expensive answer.

What no search can find

This is the argument for insurance, and it is a better argument than most buyers are given:

A forged deed or a forged discharge somewhere in the chain.
An heir nobody knew about.
A defective foreclosure in the chain of title — a live issue in Massachusetts since *U.S. Bank v. Ibanez*, 458 Mass. 637 (2011), which held that a lender must have held the mortgage when it published the foreclosure notice.
A document recorded but mis-indexed, and therefore invisible to a reasonable search.
An unrecorded easement, or a boundary that has been used differently from how it is described.
A mechanic's lien filed in the gap between the search and the recording.
Identity fraud, which is the growth area.

An examination finds recorded defects. Insurance covers hidden ones. They are different products solving different problems, which is why doing one does not remove the need for the other.

The lender's policy is not your policy

The lender's policy is required, covers the loan amount, and shrinks as you pay the mortgage down. If a title defect surfaces, it makes the lender whole. It does not make you whole, and it does not defend your ownership.
The owner's policy is optional, covers your equity for as long as you own the property regardless of what happens to the mortgage, pays your legal costs if someone challenges your title, and is bought once with a single premium at closing.

Only one of those two ever pays you. The additional premium for issuing the owner's policy at the same time as the lender's is substantially less than buying it on its own, so ask specifically for the simultaneous issue rate, and if the property was insured recently, ask whether a reissue rate applies. Both are quoted on request and neither is offered unprompted as reliably as it should be.

The case for taking it is strongest where the chain is complicated: a foreclosure or bank-owned purchase (see buying a foreclosure or short sale), an estate sale, a property that has been divided, a new subdivision, or anything where a lien was discharged unusually.

A plot plan is not a survey

The mortgage plot plan prepared for the lender locates the building roughly and is not a boundary determination. If you intend to build, fence, add a driveway, or if anything about the property suggests the neighbour's shed is not where the neighbour thinks it is, order an instrument survey. Doing it before closing is diligence; doing it after is a dispute.

What to actually do

1.Ask for the title commitment and read Schedule B — the exceptions are the things the policy will not cover, and they are where the easements and restrictions are listed.
2.Ask your attorney to explain any easement or restriction in plain terms, before closing.
3.Confirm whether the property is recorded or registered land.
4.Get the municipal lien certificate and check it against what you were told about taxes and betterments.
5.Buy the owner's policy, at the simultaneous issue rate.
6.After closing, record your homestead declaration — different protection, also cheap, also routinely skipped.