Should a District, in its review of restrictions which are set forth expressly on the face of a certificate, (a) find a Prohibited Restriction, and (b) the Prohibited Restriction consists expressly, solely, and unambiguously of terms made void by § 23B (as opposed to restrictions that are a combination of prohibited and allowed terms), then without the necessity of a proceeding under G.L. c. 185, § 114, “Amendment or Alteration of Certificates,” the District is authorized and directed, without order of, or any further approval from, the Court, and without notice to any parties, as a matter of public policy, to prepare a new certificate or memorandum without inclusion of the express language of the Prohibited Restriction; the Prohibited Restriction in such a case is not to be carried forward to the new certificate of title.
In case of doubt, District personnel may seek guidance from the Chief Title Examiner or her designee.
Should (a) the District’s review identify a Prohibited Restriction set forth expressly in the certificate that is combined with an allowed restriction, or that is not unambiguously made void in its entirety by § 23B, or (b) the District becomes aware that documents referenced in the certificate (including in its memorandum of encumbrances) by document number, recording reference or otherwise, contain a Prohibited Restriction, the Assistant Recorder of the District is instructed to submit promptly a “Complaint to Declare Certain Provisions Void Under Chapter 184, § 23B,” using whenever possible the form of complaint provided by the Court, requesting authority to make an amendment to the certificate, or other appropriate order of the court. The § 23B Complaint is to be mailed to the Land Court, with a mailing address of Three Pemberton Square, Fifth Floor, Boston, MA 02108, Attention: Chief Title Examiner, and also emailed to LandCourt.Title@jud.state.ma.us with reference to the Land Court Plan Number(s) for the land involved. Following receipt of the § 23B Complaint, after such proceedings as are indicated, the Court will issue an appropriate Order of Court to the District. Absent approval from the Court, the District shall not prepare a new transfer certificate of title until the issuance of an Order of Court.
All other restrictions that are not a Prohibited Restriction appearing on the face of the certificate of title are to be carried forward onto the face of the new transfer certificate of title.