To:Registry Districts
 
From:Edmund A. Williams
 
Date: February 7, 2017
 
Subject:M.G.L. ch. 183  § 5B Affidavits
Notary Public's Acknowledgment Certificate
 

    On June 16, 2016, the Massachusetts Supreme Judicial Court (“SJC”) issued its
decision in the case of Bank of America, N.A. v. Casey, 474 Mass. 556 (2016)
concerning the use of a M.G.L. ch. 183 § 5B Affidavit (“5B Affidavit”) to cure a
defective notary’s acknowledgment certificate affixed to a recorded land mortgage. The
defect was the omission of the mortgagors’ names from the certificate by the notary
public.
 

    In Casey, the SJC concluded that in the circumstances presented therein, the 5B
Affidavit cured the defective certificate of acknowledgment in the mortgage, and in turn,
effectuated a proper recording of that mortgage. The SJC further concluded that where
the 5B Affidavit cured the defect in the acknowledgment, the 5B Affidavit, in
combination with the originally recorded mortgage, provided constructive notice of the
existence of that mortgage to a bona fide purchaser.


    The relevant portion of Massachusetts General Laws ch. 183 § 5B provides:


        “[A]n affidavit made by a person claiming to have personal
    knowledge
of the facts therein stated and containing a certificate by an
    attorney at law
that the facts stated in the affidavit are relevant to the title
    to certain land and will be of benefit and assistance in clarifying the
    chain of title
may be filed for record and shall be recorded in the registry
    of deeds where the land or any part thereof lies.” (emphasis added)


Based upon the foregoing, effective immediately, Registry District personnel may accept,
without prior Land Court approval, a 5B Affidavit in support of a previously registered
deed or mortgage in the limited circumstance where the name(s) of the signatories are
omitted from the notary public’s certificate of acknowledgment. However, the facts
stated in the 5B Affidavit should not contradict facts contained in the originally registered
deed or mortgage.


    The 5B Affidavit may come from an attorney-at-law or from an affiant other than
an attorney-at-law, but in either case, the contents of the 5B Affidavit must include all of
the following:
    1) reference to M.G.L. ch. 183 § 5B;
    2) a statement that it is based upon the personal knowledge of the affiant;
    3) reference to the previously registered document number;
    4) execution under the pains and penalties of perjury;
    5) acknowledgment of the affiant’s signature; and
    6) an attorney certification that the facts stated in the 5B Affidavit are relevant to
    the title, and will be of benefit and assistance in clarifying the chain of title.
    (separate certification affixed to the document, not notarized)


    NOTE that this represents a change in practice, and doubtful questions as to the
content of the 5B Affidavit submissions should be referred to the Chief Title Examiner,
or his designee.
CAVEAT:  Should you be presented with a 5B Affidavit in support of a correction
other than an omission of the name(s) in an acknowledgment certificate, or a change that
would not be adequately addressed through Guideline 37 applicable to amendments and
restatements of mortgages, or in support of a document other than a deed or mortgage,
you should not accept the 5B Affidavit at this time. 
    Instead, Registry District personnel should refer the 5B Affidavit submission to
the Chief Title Examiner, or his designee, for a determination that the 5B Affidavit is
appropriate for registration upon approval, or in the alternative, a determination that the
document is not appropriate for registration, and that the matter would be best resolved
by seeking an Order of the Land Court.
CAVEAT: This Memorandum authorizes, in the particular circumstances described,
the acceptance for registration of an appropriate 5B Affidavit. The legal effect and
consequence of the registration of the 5B Affidavit will be determined by the Land Court
or another court of proper jurisdiction if and when that question is presented.