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by Glendon J. Buscher, Jr., Esq.
(Updated March 8, 2006, August 1, 2012, January 2, 2014)
Land ownership and use are central to the structure of our society. So central, that the interplay of individual private interests and the demands of society and public policy has created a complex historical infrastructure of legal rights and the documentation thereof. One of the most complex aspects of this infrastructure is the process for determining the legal status of ownership rights in land, what we call title. The Evolution of Title as a legal concept has had a particularly complex history in Massachusetts. Historically, documents evidencing interests in land were recorded in public registries of deeds sequentially over time, transaction by transaction. By the end of the nineteenth century, the task of searching and analyzing the myriad of such documents and legal sources necessary for evaluating the state of ownership of a particular parcel of land had become quite expensive and time-consuming. It had, in fact, become beyond the capacity of most people, except those skilled in such search and in the practice of real estate conveyancing. Even then, the conclusion as to the state of title reached at the conclusion of this search was only a private expert certification.
Dissatisfaction with this situation was not confined to Massachusetts, or even the United States. Coincident with a similar period of legal and social dissatisfaction in the British Empire, Sir Robert Torrens in 1858 in Australia conceived of an approach to one aspect of this problem. Born in Cork, Ireland in 1814, Torrens emigrated in 1840 to South Australia where he became Collector of Customs. In that position he became familiar with the system of ship registry. In 1853 he became the Registrar-General of Deeds in South Australia, a position which gave him insight into the details of real property law and conveyancing. In 1857 he was elected to the Parliament of South Australia where, in 1858, he introduced legislation designed to change the method of recording land title interests to make it more like the system for registering ownership interests in ships that he had observed in his customs work. This legislation, the Real Property Act, 1858, involved moving land title recording out of the realm of private recording, search and certification into one whereby the government itself certifies the legal state and location of the ownership interests. The system he caused to be enacted has been called the Torrens System of Land Registration. The Land Court was established to implement the Massachusetts variety of this Torrens system.
Chapter I, Section I, Article III of the Massachusetts Constitution gives to the Great and General Court the power to constitute courts for the trial of all types of actions. Pursuant to this power, by Chapter 562 of the Acts of 1898, which came into effect on October 1, 1898, the General Court created the Court of Registration. In 1900 (Chapter 354 of the Acts of that year) its name was changed to the Court of Land Registration. Since Chapter 448 of the Acts of 1904, it has been more simply known as the Land Court. The Court began its work on October 14, 1898 in Room 227 of the Tremont Building (at the corner of Tremont and Beacon Street at what is now 73 Tremont Street). It moved to larger spaces in Room 201 of the Pemberton Building (where Two and Three Center Plaza now stand) on February 1, 1901. On January 31, 1911 the Court was transferred to quarters on the fourth floor of the old Suffolk County Courthouse where it remained until February 2, 1999 when it was relocated to the newly-constructed courthouse at 24 New Chardon Street. On December 8, 2003, the Court moved to quarters in the newly renovated building at 226 Causeway Street next to the Fleet Center. The building was formerly the Stop & Shop Bakery. The Court moved for the sixth time in December 2010, transferring its offices, archives and courtrooms to quarters on the 4th, 5th and 11th floors of the high rise Suffolk County Courthouse in Pemberton Square.
Registration of title occurs when the Land Court, after having the title exhaustively searched by a Court-appointed examiner, and after due process is afforded to all interested parties, reviews and then adjudicates and decrees the state of the title. Thereafter the current state of the title, as it is sequentially updated by registration of future transactions, is embodied in a certificate of title which not only evidences title, but, like the ship title of Robert Torrens's focus, is in fact the guarantee of title, subject only to the exceptions provided by statute and matters of federal law. The initial decree of registration and the subsequent certificate of title are in rem, that is, against the whole world. A title which, according to the evidence of documents in the traditional recording system may be insufficient to support a conclusion of ownership, or which is clearly defective, may, through the adjudicatory process of registration, be made good and marketable.
Chapter 562 of the Acts of 1898 (The Massachusetts Land Registration Act) is now embodied in G.L. c. 185. The Court has both judicial and administrative powers and a staff consisting not only of judges and clerks, but of engineers and other technical staff skilled in real estate matters. Originally the Court was a court of inferior jurisdiction and there was a right of appeal from all its orders and decrees to the Superior Court. Gradually, starting with the enactment of Chapter 131 of the Acts of 1899, the Court was brought into its current status as a court of record on a par with the Superior Court. Thereafter, until the creation of the Appeals Court, it was the only court of state-wide jurisdiction other than the Supreme Judicial Court. By Chapter 478 of the Acts of 1978, the Land Court became one of the seven departments of the Trial Court of Massachusetts and is now known as the Land Court Department of the Trial Court (See G.L. c. 211B).
The first Recorder, later Judge, Clarence Smith recounted in an address on the occasion of the 25th anniversary of the Court that in the beginning, "No one came to register title to land, but there were many applications to register births, deaths and marriages, also patrician live stock of all kinds....In the beginning there was nothing to do except dismiss applications to register cattle." Perhaps herein lies the reason why in 1900 the name of the Court had briefly to be changed to the Court of Land Registration. Mr. Smith went on to say, "Well, we got business eventually, whether in spite, or because, of our early efforts no one can ever know. ...In the autumn of 1898 I began to carry (each night) the files and papers of Land Court in a bushel basket to our locker in a vault in the Tremont Building. Time passed and, at the end of three years, we had nearly eight bushels of records when we moved to the Pemberton Building. At present we have in the Court House two sizable vaults filled and a third, and much the largest one, being rapidly occupied. This does not include any of the large and valuable files on the engineering floor." At the end of the first year of existence of the Court 21 cases had been adjudicated.
Shortly after the creation of the Court, Judge Charles Thornton Davis in the preface to his volume of Land Court decisions observed that "The Land Court of Massachusetts is an innovation in judicial machinery. Originally established in 1898 to administer the Land Registration Act, its jurisdiction has been gradually extended to cover nearly all forms of action affecting title to land, whether brought by registration proceedings or otherwise." This reflects the fact that resolution of the problems caused by the complexity of our property laws could not be achieved by registration alone. The Torrens system was not designed to solve all the shortcomings of these laws, only some aspects of them. The establishment of the Land Court, however, did provide a machinery for addressing, within the context of a judicial forum and with the constitutional protection thereby provided, the conflict of interests and the interplay of complexities inherent in real property situations.
While the Torrens system has not in itself proven to be a general mechanism for dealing with all the complexities of interests in land ( and certainly it is not clear it was ever expected to be), the jurisdiction placed in the Land Court in connection with the administration of that system and the aggregations of jurisdiction and expertise later gained by the Court have produced an institution uniquely qualified to provide the citizens of Massachusetts with a forum for the resolution of their property interests.
Acknowledging the Land Court's record of expertise in the field of property law and its unique combination of administrative and judicial power, the General Court has incrementally given it broadened jurisdiction. In addition to its exclusive jurisdiction over registration, confirmation and tax foreclosure, the Court now has exclusive or concurrent jurisdiction over a wide variety of real estate related matters, including zoning, subdivision and permit cases, specific performance and petitions to partition. It does not, however, have jurisdiction over eminent domain or Chapter 93A consumer protection matters. The various matters over which the Court now has jurisdiction are enumerated in section 1 of Chapter 185. It is estimated that somewhere between 20% and 30% of the land in Massachusetts has come under the scrutiny of the Land Court through registration or confirmation proceedings (not all these proceedings have resulted in a final decree). In 1967 the majority of Land Court cases were still registration and confirmation. Today, however, zoning and land use cases present the greatest demands on the attention of the Court.
The first expansion of jurisdiction beyond registration (Chapter 448 of the Acts of 1904) was over writs of entry, petitions to require action to try title, petitions to determine the validity of encumbrances and petitions to discharge old mortgages. Since that time the court also has gained jurisdiction over actions to remove a cloud on title, complaints to establish authority to sell property, complaints for foreclosure of mortgages and tax titles (both low value and otherwise), complaints to determine boundaries in tidal flats, complaints to determine county, city, town or district boundaries and broad equity jurisdiction in matters involving right, title and interest in land. By Chapter 393 of the Acts of 2002, the Court has been granted jurisdiction over specific performance and petitions for partition. The first rules of the Court were approved on February 2, 1899, to take effect from October 14, 1898. There were originally 24 rules, but these were eventually reduced to six by virtue of changes in practice and by force of G.L. c. 240, sec. 6. The Court is now subject to the Massachusetts Rules of Civil Procedure.
The following statutes are some of the other most important landmarks in the increase in jurisdiction to the Land Court and in creating its present status and competency as a judicial forum for the adjudication of land related issues.
By Chapter 237 of the Acts of 1915, the Land Court was given exclusive jurisdiction of the proceedings for foreclosure of tax titles. The first such tax title case was filed on August 1, 1917. In 1931 (Chapter 457 of the Acts of 1931) the Court was given the power to issue decrees of confirmation without registration. Jurisdiction to issue declaratory judgments construing the scope and effect of zoning laws was given to the Court by Chapter 263 of the Acts of 1934 (now G.L. c. 240, sec. 14A), but it was not until Chapter 808 of the Acts of 1975 that the Land Court was first given jurisdiction over actual appeals from zoning boards and permit granting authorities. Chapter 533 of the Acts of 1982 granted the Court extended concurrent jurisdiction over appeals under G.L. c. 40A, sec. 17, and its jurisdiction over section 81BB subdivision appeals was made explicit. These jurisdiction provisions were written directly into G.L. c. 185 by Chapter 421 of the Acts of 1987.
By Chapter 413 of the Acts of 2000, amending Chapter 185, sec. 52, the General Court enumerated four instances where approval from the Court for withdrawal from registration could be sought. Such withdrawal would have the effect of converting the certificate of title as to the land being withdrawn into a decree of confirmation. The four instances are: 1. If the registered land consists of less than 50% of the area of a single parcel consisting of two or more contiguous parcels in common ownership; 2. If the registered land is so-called "remaining land", being less than 10% of the land area shown on the decree plan to which the original certificate of title pertains, the rest of the land area having been conveyed since the original registration under Chapter 185; 3. Where plaintiffs have alleged that they have submitted the land to the provisions of Chapters 183A or 183B, or have created interests in the land to which Chapter 183B is applicable pursuant to the provisions of Chapter 760 of the Acts of 1987 (clause c), and, 4. For other good cause. In all instances, plaintiffs must submit proof that the land sought to be withdrawn meets the statutory grounds or criteria.
The value of the work of the Land Court is also to be found in the fact that the Registration Act provides for the adjudication of boundaries. Chapter 185 does not explicitly provide for a survey department. Early on, however, such a department, initially called the "Engineering Department" was established as part of the Recorder's Office to deal with plans of registered land and such other assistance as the Court might require. In addition, by Chapter 223 of the Acts of 1915 (now G.L. c. 185, sec.117), the Land Court was authorized to make sectional plans showing thereon registered lands and to employ competent draftsmen to do so. Under G.L. c. 42 and c. 240, the Land Court has jurisdiction in other law actions where boundary lines may be determined. The department is now called the Survey Department.
The Survey Department has been aided in its work by the recognition of the Massachusetts Coordinate System under Chapter 47 of the Acts of 1941 amending G.L. c. 97. The department has periodically issued regulations, originally called "Instructions to Engineers and Surveyors", to standardize surveys and to explain what the court requires when preparing and submitting plans. These instructions are now commonly referred to as Massachusetts Land Court Engineering Standards, the latest revision of which is called the "Land Court 2006 Manual of Instructions For The Survey of Lands and Preparation of Plans", adopted September 23, 2005, effective January 2, 2006.
On May 1, 2000, the court issued a series of guidelines to the Registry Districts designed to aid them in registering certain documents, the nature and circumstances of which would previously have required either referral to or approval by the Chief Title Examiner in Boston. These guidelines were developed by a committee consisting of real estate attorneys, Chief Title Examiner Margaret D. Cronin and Justice Mark V. Green as chair of the committee. These guidelines were updated in 2009. A similar committee, under the leadership of Justice Leon J. Lombardi and Chief Engineer Louis A. Moore, guided the work of developing the 2006 revision of the Manual of Instructions. At this time the name of the Engineering Department was changed to Survey Department. Louis A. Moore retired on November 30, 2001, after some eighteen years as Chief Engineer and approximately forty six years as an employee of the Court. Mr. Moore was succeeded by George T. Capelianis as Chief Engineer. He in turn was succeeded by Thomas C. Pontbriand, who become temporary Chief in July of 2007 and was then appointed permanently in July 2012. On February 2, 2004, Deborah J. Patterson was appointed Recorder of the Land Court.
Margaret D. Cronin retired January 31, 2001, after some twenty years as Chief Title Examiner and approximately thirty three years as an employee of the Court. Edmund A. Williams succeeded her as Chief Title Examiner. On November 1, 2001, Justice Mark V. Green took the oath as a justice of the Massachusetts Appeals Court. The appointment was the first of a Land Court justice to an appellate court. Other notable firsts in the careers of Land Court justices were the appointment in 1985 of Marilyn M. Sullivan as the first woman to become Chief Justice of a Trial Court Department and the appointment of Land Court Chief Justice John E. Fenton, Jr., to the position of Chief Justice for Administration and Management in 1992.
All the judges of the Court are now officially titled justices. At the end of 2002 the cohort of justices of the Land Court was increased to six. In 2002 long-time Recorder Charles W. Trombly, Jr. and Attorney Gordon H. Piper were appointed to two of these new judgeships, joining Chief Justice Peter W. Kilborn and Justices Karyn Faith Scheier, Leon J. Lombardi and Alexander H. Sands III on the bench. This was the first time since Clarence C. Smith became a judge in 1924 that a Recorder of the Land Court has become a justice. On February 17, 2003, Chief Justice Peter W. Kilborn retired and was succeeded by Chief Justice Karyn F. Scheier. On March 9, 2004 the third new judicial position was filled with the swearing in of Attorney Keith C. Long as the third new justice. Deborah Patterson was appointed February 2, 2004 to replace Charles W. Trombly as Recorder of the Court.
In 2006, under the provisions of Chapter 205, Section 14, of the Acts of 2006, the Court was mandated to sit in Fall River and Worcester in addition to its traditional seat in Boston. Section 15 of that act also created the permit session of the Land Court for review, concurrently with the Superior Court, of civil actions based on or arising out of issues relating to certain permits or denials of permits, or other issues arising in connection therewith, concerning the use or development of real property. In connection with this expansion of jurisdiction, the Court was authorized to add a seventh justice. Justice Harry M. Grossman was appointed to that seventh position on December 22, 2006.
On August 12, 2008, Justice Leon J. Lombardi retired and was replaced on June 30, 2009 by Justice Judith C. Cutler. A further changeover occurred with the retirement of Justice Charles W. Trombly on May 20, 2011. He was succeeded on the Court on December 30, 2011 by Justice Robert B. Foster. On January 31 of that same year Jill K. Ziter, moved over from the District Courts to become the new Deputy Administrator, replacing Ellen B. Bransfield, who retired in October 2009.
In furtherance of the Trial Court's goal to make case information available to the broad public, the Land Court dockets have, since December 30, 2011, been available on line.
Leonard A. Jones
1898 - 1909
Charles Thornton Davis
1909 - 1936
Michael A. Sullivan
1936 - 1937
John E. Fenton
1937 - 1965
Elwood H. Hettrick
1966 - 1971
William I. Randall
1971 - 1985
Marilyn M. Sullivan
1985 - 1990
John E. Fenton, Jr.
1990 - 1992
Robert V. Cauchon
1992 - 1996
Peter W. Kilborn
1996 - February 17, 2003
Karen F. Scheier
Febuary 17, 2003 - December 31, 2013
Judith C. Cutler
January 2, 2014 - present
Lynne G. Reed
February 15, 1985 - December 30, 1992
Ellen B. Bransfield
December 31, 1992 - October 31, 2009
Jill K. ZiterJanuary 31, 2011 - present
Clarence C. Smith
Appointed October 12, 1898 - Reappointed
Herman A. MacDonald
Appointed July 9, 1924
Charles A. Southworth
Appointed January 7, 1925 - Reappointed
Appointed January 6, 1943
Sybil H. Holmes
Appointed December 1, 1948
1953 statute changed term from five years to life tenure
Margaret M. Daly
Appointed September 24, 1959
John G. Kelleher
Appointed April 21, 1982
Charles W. Trombly, Jr.
Appointed December 12, 1984 - Became a Justice December 11, 2002
Deborah J. PattersonFebruary 2, 2004 - present
Samuel T. Harris
Joseph I. Bennett
Jeanne M. Maloney
Ellen M. Kelley
February 11, 2013 - present
Samuel T. Harris
(Appointed Nov. 1, 1898)
Joseph I. Bennett
Bernard W. Berkowitch
Orrin P. Rosenberg
Margaret D. Cronin
Retired January 31, 2002
Edmund A. Williams
January 27, 2003 - Present
Edward S. Foster
1898 - 1909
Clarence B. Humphrey
August 1, 1909 - May 31, 1946
William T. Fairclough
July 1, 1946 - June 30, 1954
Charles M. Anderson
August 1, 1954 - October 14, 1969
Robert L. Woodbury
November 3, 1969 - December 31, 1981
Louis A. Moore
April 1, 1983 - November 30, 2001
George T. Capelianis
February 21, 2003 - April 8, 2007
Thomas C. Pontbriand
July 30, 2012 - present