52. Trusts: conveyances by trustees

(May 1, 2000, revised February 27, 2009)

A. Nominee trust conveyances - trust in same registry district

Conveyances by Trustees of a nominee trust are acceptable if

1. the instrument of conveyance is authorized by the terms of the registered or recorded (previously or simultaneously) trust instrument or certificate given pursuant to G.L. c. 184 §35, and (a) a Trustee’s Certificate in substantially the form appended hereto as Exhibit A or Exhibit B is submitted, or (b) the instrument of conveyance itself contains all such matters required to be set forth in a Trustee’s Certificate;

   or

2. Land Court approval has been obtained.

B. Nominee trust conveyances - trust in different registry district or recorded in registry of deeds

Conveyances by Trustees of a nominees trust are acceptable if

1. the instrument of conveyance is authorized by the terms of the registered or recorded (previously or simultaneously) trust instrument and (a) attested copies of the trust declaration, or of a certificate pursuant to G.L. c. 184 §35, and all amendments thereto and all trustee resignations and appointments are submitted (as established by a certificate by an attorney, or given under oath by the trustee, certifying that the instrument or certificate of which the attested copy is provided is current, in force, and not the subject of any recorded amendment), and (b)(i) a Trustee’s Certificate in substantially the form attached hereto as Exhibit A or Exhibit B is submitted, or (ii) the instrument of conveyance itself contains all such matters required to be set forth in a Trustee’s Certificate, and with respect to a Trust for which only a Certificate pursuant to G.L. c. 184 §35 has been recorded, it is subscribed and sworn to under the pains and penalties of perjury

   or

2. Land Court approval has been obtained (this requires the fully executed instrument and a Land Court Examiners Report on the contents and status of the trust).

   Caveat: Certificates pursuant to G.L. c 184 § 35, once recorded or registered in connection with, and establishing authority for, a particular transaction, may not be used for subsequent transactions at a later date unless: (a) the earlier certificate establishes that the termination of the trust has not occurred as of the date of the later transaction, or (b) the earlier certificate provides that any party interested in title to the locus may rely on the continuing existence of the trust until the recording of a certificate or document establishing the termination of the trust.

   Caveat: A trustee certificate as contained in attached Exhibit A cannot be used alone to demonstrate authority of a trustee to convey, in cases where the trust instrument is not of record and a certificate pursuant to G.L. c. 184, § 35 instead has been recorded or registered, unless the recorded or registered G.L. c. 184, § 35 certificate authorizes any party interested in title to the locus to rely on such a trustee certificate.

C. Trust conveyances other than nominee trusts - trust in same registry district

Trust conveyances are acceptable if the instrument is authorized by the terms of the trust. In these cases no separate Trustee’s Certificate is required.

D. Trust conveyances other than nominee trusts - trust in different registry district or recorded in registry of deeds

Trust conveyances are acceptable if

1. the instrument of conveyance is authorized by the terms of the trust an attested copies of the trust declaration (or, instead, provided the trust is not a testamentary one, of a recorded or registered certificate pursuant to G.L. c. 184, §35) and all amendments thereto and all trustee resignations and appointments are submitted (as established by a certificate by an attorney, or given under oath by the trustee, certifying that the instrument or certificate of which the attested copy is provided is current, in force, and not the subject of any recorded amendment) and (b)(i) a Trustee’s Certificate in substantially the form attached hereto as Exhibit C is submitted, or (ii) the instrument itself contains all such matters required to be set forth in a Trustee’s Certificate

   or

2. Land Court approval has been obtained (this requires the fully executed instrument and a Land Court Examiners Report on the contents and status of the trust).

Exhibit A: Form of Trustee Certificate for Nominee Trust

[Name of Trust] Trustee Certificate

The undersigned hereby certifies as follows:

1. [Name(s) of trustee(s)] [is/are] the current Trustee(s) of [name of trust] u/d/t dated [date] and [recorded/registered] with the [county] County [Registry of Deeds/Land Court Registry District], at Book [book number], Page [page number] or as Document Number [document number] as noted on [Transfer] Certificate of Title No. [certificate of title number], as amended by [name of trust amendment], dated [date] and [recorded/registered] with the [County] County [Registry of Deeds/Land Court Registry District], at Book [book number], Page [page number] or as Document Number [document number] as noted on [Transfer] Certificate of Title No. [certificate of title number], ("Trust").
2. The Trust is in full force and effect and has not been amended or modified, except as provided above, and has not been revoked as of the date hereof.
3. The undersigned [has/have] full power and authority and [has/have] been directed by the [beneficiary/beneficiaries] of the Trust to enter into a [sale/purchase/mortgage loan] transaction with respect to certain premises situated at [address of premises], [county] County, Massachusetts ("Premises"), and in connection therewith to execute and deliver, on behalf of the Trust, any and all documents with respect to said transaction, including, but not limited to, a deed by the undersigned conveying the Premises to [grantee(s)] in full consideration of, the sum of $[amount] or a promissory note of the undersigned in the amount of $[amount] payable to [payee], and as security therefor, a mortgage of the Premises to said lender, together with any other agreements, assignments, certificates, affidavits, settlement statements and documents as may be necessary or desirable in effectuating said transaction.

Executed as a sealed instrument this [date] day of [month], [year].

[Signature of trustee]
As Trustee and not individually

Exhibit B: Form of Certificate where Certificate of Trust has been filed

Trustee Certificate

Pursuant to G. L. C. 184, § 35

[Name of Trust]
[Date of Trust]

I, [name of trustee], Trustee of [name of trust] under [Indenture/Agreement/Declaration] of Trust dated [date], [recorded/registered] with the [county] County [Registry of Deeds/Land Court Registry District], at Book [book number], Page [page number], or as Document Number [document number] as noted on [Transfer] Certificate of Title No. [certificate of title number], as amended by [name of trust amendment], dated [date] and [recorded/registered] with the [county] County [Registry of Deeds/Land Court Registry District], at Book [book number], Page [page number], as Document Number [document number] as noted on [Transfer] Certificate of Title No. [certificate of title number], (the “Trust”), certify as follows:

1. [Name(s) of trustee(s)] [is/are] the current Trustee(s) of the Trust. The Trust is in full force and effect and has not been amended or modified, except as provided above, and has not been revoked as of the date hereof.
2. The undersigned [has/have] full power and authority [Insert where Trust is a Nominee Trust: and [has/have] been directed by the [beneficiary/beneficiaries] of the Trust] to enter into a [sale/purchase/mortgage loan] transaction with respect to certain premises situated at [address of premises], [county] County, Massachusetts ("Premises"), and in connection therewith to execute and deliver, on behalf of the Trust, any and all documents with respect to said transaction, including, but not limited to, a deed by the undersigned conveying the Premises to [grantee(s)] in full consideration of the sum of $[amount] or a promissory note of the undersigned in the amount of $[amount] payable to [payee], and as security therefor, a mortgage of the Premises to said lender, together with any other agreements, assignments, certificates, affidavits, settlement statements and documents as may be necessary or desirable in effectuating said transaction; and
3. There are no facts which constitute conditions precedent to acts by the Trustee(s) or which are in any other manner germane to affairs of the Trust.

Note: for the Certificate to be used for future transactions, there should be added to the above format more general provisions, and either a specific expiration date or formula, or an explicit statement that all interested in title may rely on the continuing existence of the Trust until a further certificate is recorded or registered establishing the expiration or termination of the Trust.

There should be added to the above, if the Trust so provides, a provision that one may, in the future, rely on a Certificate as set forth in Exhibit A to establish the facts set forth therein.]

Executed, as a sealed instrument on [month] [day], [year].

[Signature of Trustee]
[Printed name of Trustee], Trustee

Commonwealth of Massachusetts

[County], ss.
Date]

Sworn to under the pains and penalties of perjury by the above-named [name of Trustee], as Trustee, before me,

[Signature of notary public]
Notary Public
My commission expires: [date]

Exhibit C: Form of Trustee Certificate for Trusts Other than Nominee Trusts

[Name of Trust] 
Trustee Certificate

The undersigned hereby certifies as follows:

1. [Name of Trustee(s)] [is/are] the current Trustee(s) of [name of trust] u/d/t dated [date] and [recorded/registered] with the [county] County [Registry of Deeds/Land Court Registry District], at Book [book number], Page [page number] or as Document Number [document number] as noted on [Transfer] Certificate of Title No. [certificate of title number], as amended by [name of trust amendment], dated [date of amendment] and [recorded/registered] with the [county] County [Registry of Deeds/Land Court Registry District], at Book [book number], Page [page number] or as Document Number [document number] as noted on [Transfer] Certificate of Title No. [certificate of title number], ("Trust").
2. The Trust is in full force and effect and has not been amended or modified, except as provided above, and has not been revoked as of the date hereof.

Executed as a sealed instrument under the pains and penalties of perjury this [date] day of [month], [year].

[Signature of trustee]
As Trustee and not individually