By Alexandra Lowe
The Massachusetts Court of Appeals, in Allen v. Allen (Mass. App. Ct., No. 13-P-605, September 16, 2014), affirmed that a property conveyance from mother to son did not take precedence over a subsequent transfer due to a defective acknowledgement of the mother’s signature. At issue in the case are two conflicting deeds transferring a family home. Both transfers were signed by the grantor and recorded at the registry of deeds.
On July 23, 2001, Ethel Allen (Ethel) executed a deed conveying her house to her son Harold. The deed was recorded in August 2001. On November 30, 2001, Ethel executed another deed conveying the same house into a trust of which she and her daughter, Deborah Allen (Deborah), were the trustees. She retained a life estate and upon her passing the trust benefited a number of her six children, but not Harold. It was not until Ethel’s passing in December 2009, that Harold revealed the July deed and Deborah brought this action alleging that the prior deed was a forgery.
The Land Court judge found that although Ethel’s signature was authentic, the mother signed the deed outside the presence of the lawyer who notarized it, thereby making his certificate of acknowledgment defective. The judge held the defective acknowledgement made the subsequent recording of the deed invalid and thereby unenforceable even though it wasn’t a forgery, meaning that the second deed was valid. Harold appealed that decision.
The Appeals Court states at the outset, that an acknowledgement is typically not an essential part of a deed or its validity. However, it is a requirement for recording. In order to be recorded at the registry of deeds, a deed must be acknowledged by the grantor before a notary public. This requirement offers some protection against forgery. Because the July deed was never actually acknowledged, the court holds it was not entitled to be recorded. It is important to note, however, that had Deborah conducted a title search prior to executing the November deed, she would have become aware of the July transfer and had the opportunity to address it with her mother, then still living. Regardless, because of the defect in the acknowledgement, the court holds the deed was legally incapable of being recorded and thus could not claim a superior property interest over Deborah.
Next the court addresses Harold’s argument that even if the July deed was not properly acknowledged, the defect does not defeat his claim to the property, pursuant to the recording statute, which excludes “heirs and devisees” from its protection as follows: “A conveyance…shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it…is recorded in the registry of deed for the county or district in which the land to which it relates lies.” (Emphasis supplied.)
Harold argues that because Deborah is Ethel’s heir as her daughter and devisee under her will, she qualifies under the statute exception to the requirement of recording. The court, however, rejects this argument finding that Deborah did not receive the property as an heir or devisee. Rather, she received it during her life through a deed from Ethel. Her additional status as heir and devisee is irrelevant to the transaction in question that occurred during her mother’s life.
This case is a reminder to practitioners and clients alike to follow the letter of the law even when transferring property among family members. Notaries public may only acknowledge signatures executed in their presence.
Alexandra Lowe, a law clerk with Margolis & Bloom, is in her third year at Suffolk University Law School.
The Massachusetts Court of Appeals, in Allen v. Allen (Mass. App. Ct., No. 13-P-605, September 16, 2014), affirmed that a property conveyance from mother to son did not take precedence over a subsequent transfer due to a defective acknowledgement of the mother’s signature. At issue in the case are two conflicting deeds transferring a family home. Both transfers were signed by the grantor and recorded at the registry of deeds.
On July 23, 2001, Ethel Allen (Ethel) executed a deed conveying her house to her son Harold. The deed was recorded in August 2001. On November 30, 2001, Ethel executed another deed conveying the same house into a trust of which she and her daughter, Deborah Allen (Deborah), were the trustees. She retained a life estate and upon her passing the trust benefited a number of her six children, but not Harold. It was not until Ethel’s passing in December 2009, that Harold revealed the July deed and Deborah brought this action alleging that the prior deed was a forgery.
The Land Court judge found that although Ethel’s signature was authentic, the mother signed the deed outside the presence of the lawyer who notarized it, thereby making his certificate of acknowledgment defective. The judge held the defective acknowledgement made the subsequent recording of the deed invalid and thereby unenforceable even though it wasn’t a forgery, meaning that the second deed was valid. Harold appealed that decision.
The Appeals Court states at the outset, that an acknowledgement is typically not an essential part of a deed or its validity. However, it is a requirement for recording. In order to be recorded at the registry of deeds, a deed must be acknowledged by the grantor before a notary public. This requirement offers some protection against forgery. Because the July deed was never actually acknowledged, the court holds it was not entitled to be recorded. It is important to note, however, that had Deborah conducted a title search prior to executing the November deed, she would have become aware of the July transfer and had the opportunity to address it with her mother, then still living. Regardless, because of the defect in the acknowledgement, the court holds the deed was legally incapable of being recorded and thus could not claim a superior property interest over Deborah.
Next the court addresses Harold’s argument that even if the July deed was not properly acknowledged, the defect does not defeat his claim to the property, pursuant to the recording statute, which excludes “heirs and devisees” from its protection as follows: “A conveyance…shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it…is recorded in the registry of deed for the county or district in which the land to which it relates lies.” (Emphasis supplied.)
Harold argues that because Deborah is Ethel’s heir as her daughter and devisee under her will, she qualifies under the statute exception to the requirement of recording. The court, however, rejects this argument finding that Deborah did not receive the property as an heir or devisee. Rather, she received it during her life through a deed from Ethel. Her additional status as heir and devisee is irrelevant to the transaction in question that occurred during her mother’s life.
This case is a reminder to practitioners and clients alike to follow the letter of the law even when transferring property among family members. Notaries public may only acknowledge signatures executed in their presence.
Alexandra Lowe, a law clerk with Margolis & Bloom, is in her third year at Suffolk University Law School.
