Taking on Past Injustices: New Land Court Procedure Offers Solutions to Homeowners for Racially Restrictive Covenants in Land RecordsPosted: February 18, 2022
by Lauren Reznick
Voice of the Judiciary
“No part of the land hereby conveyed or any of the improvements thereon shall ever be sold, leased, traded, deeded or donated to any one other than of the Caucasian race.”
These above words live within Massachusetts land records and remind us of a not-too-distant shameful past.
Throughout the early twentieth century, racially restrictive covenants, like the above example, proliferated in Massachusetts deeds. They sought to accomplish through private contract what state law could not do openly since the passage of the Fourteenth Amendment: restricting the purchase, lease, or occupation of property by people of color. While practices like redlining systematically but covertly denied residents of color access to lending resources and services, the use of private restrictive covenants overtly excluded them from acquiring property in communities marketed and sold exclusively to white buyers. Together, these practices barred people of color from the principal means of building wealth in the United States – homeownership – a legacy that has had lasting racial and economic effects throughout the Commonwealth and the United States.
The first blow against racial covenants in land deeds was struck in 1948 by the United States Supreme Court in Shelley v. Kraemer, 334 U.S. 1 (1948). There, the Supreme Court declared that state enforcement of racially restrictive covenants violated the guarantee of equal protection under the Fourteenth Amendment. However, in the same breath, the Court stated that “[s]o long as the purposes of those agreements are effectuated by voluntary adherence to their terms…the provisions of the [Fourteenth] Amendment have not been violated.” Id. at 13. And so, racial restrictions – deemed unenforceable but not unlawful – continued in use unabated.
In a 1969 Report of the Massachusetts Attorney General, the Civil Rights Division noted that “[m]any citizens of the Commonwealth had raised objections to the Massachusetts Commission Against Discrimination” about such covenants in Massachusetts deeds, but the MCAD lacked jurisdiction to address them. See 1969 Massachusetts Attorney General Reports and Opinions 6, at p. 11 (1968-1969). In response, the Civil Rights Division drafted legislation to make such covenants unlawful, which the General Court enacted as Chapter 523 of the Acts of 1969, “An Act invalidating restrictive covenants and conditions relating to real property on the basis of race, color or religion and prohibiting the use of such covenants.” St. 1969, c. 523. This Act not only voided provisions “which purport to forbid or restrict the conveyance, encumbrance, occupancy, or lease [of real property] to individuals of a specified race, color, religion or national origin,” see G.L. c. 184, § 23B, but also declared it a crime, punishable by up to a $500 fine or up to one year imprisonment, to knowingly include such provisions in conveyance instruments. See G.L. c. 151B, § 4A. In 1978, section 23B was expanded to add “sex” to the list of prohibited characteristic-based restrictions. See St. 1978, c. 127, § 3.
Thus, in today’s legal landscape, restrictive covenants based on race, religion, national origin, or sex are unenforceable, unlawful, and punishable as a crime in this Commonwealth. Most may also have expired by operation of law. See, e.g., G.L. c. 184, §§ 23, 27 and 28. Yet their words dwell within our land records, retelling our hurtful past. Even today, they can be carelessly carried forward in new conveyances in a property’s chain of title. And those reminders can haunt the consciences of today’s homeowners who may unwittingly come face to face with them when they buy a home, reopening old wounds. See, e.g., Cheryl W. Thompson, “Racial covenants, a relic of the past, are still on the books across the country,” npr.org, November 17, 2021 (last accessed December 16, 2021).
Now, the Massachusetts Land Court is offering homeowners a new option to address these provisions. Under newly-adopted Land Court Standing Order 2-21, an owner or other interested person may bring a land record containing a racially-restrictive covenant before the court. A judge will then review the restriction and fashion a remedy, such as a declaratory judgment, a new certificate of title, the entry or cancellation of a memorandum upon a certificate of title, or other appropriate relief. The resulting court order or judgment will then be recorded or registered with the title—a repudiation of the covenant and its harmful and lasting effects on the land and people of this Commonwealth. By this means, the Land Court hopes to help our citizens reckon with a hurtful past without erasing or ignoring that history.
Mindful of the navigational hurdles that can accompany the filing of a court case, the Land Court has adopted a set of simplified procedures and forms for a party to bring this new kind of “Void Provisions” or “VP” case before the court. All that is needed to complete the one-page Complaint form available on the court’s website, is a copy of the current deed or certificate of title for the property and a copy of the instrument that contains the prohibited restriction. Most of the time, these documents can be accessed online through the Secretary of the Commonwealth’s Massachusetts Land Records website, available at masslandrecords.com. There is no fee for filing a Void Provisions case, and the court has streamlined the procedures so any person, even those without legal representation, can navigate the steps. Registry of Deeds staff are also qualified to help and have received a Memorandum from the Land Court Chief Title Examiner explaining the new registered land procedures related to Land Court Standing Order 2-21. Members of the bar experienced in registered land conveyancing may find a review of the Chief Title Examiner’s Memorandum helpful to understanding how the Assistant Recorders have been instructed to handle registered land documents that contain racial restrictions.
Once the court has reviewed and determined the Void Provisions Complaint, a Land Court judge will issue a judgment or order of court, which will be transmitted to the local Registry of Deeds or Registration District of the Land Court for recording or registration. The filer will also receive confirmation of the completion of the case. We anticipate that most Void Provisions cases will be straightforward and reach a prompt resolution with no need for court events, and minimal expenditure of filer, court, or Registry resources. However, for any thornier issues (which we expect to be quite rare), the professional team of Land Court Attorney Title Examiners and judges stand ready to provide their considerable expertise and experience in land titles.
For over a century, bigotry, racism, and discrimination have been embedded into private land agreements known as restrictive covenants, bisecting our Massachusetts neighborhoods along racial lines. These provisions are painful, poignant reminders of the formalized and systemic discrimination perpetrated against people of color in this Commonwealth, effects of which can still be felt today. For homeowners impacted by this scar in our land records, the Land Court is opening its doors. These historical injustices should not be erased or forgotten, but can be acknowledged and faced head on with a new Land Court procedure.
Lauren Reznick is the Assistant Deputy Court Administrator-Legal Counsel to the Land Court and advises the Chief Justice on new court rules and standing orders.
by Gordon H. Piper
Voice of the Judiciary
I am honored to have been asked to offer a few initial observations about the Land Court Department, from my new perch as its Chief Justice, a role I assumed at the end of October last year. I thank Trial Court Chief Justice Paula M. Carey for selecting me to serve.
We at the Land Court relish our status as the smallest of the seven departments of the Trial Court. Our seven justices hear cases from every corner of the Commonwealth. We “have gavel, will travel,” trying cases from Pittsfield to Nantucket, and in many courthouses in between. Our center of gravity does remain the high-rise courthouse on Pemberton Square in Boston, where most hearings take place, the Recorder’s office is located, and the court’s legal, title examination and surveying experts are based.
We also are enthusiastic about our responsibilities to adjudicate cases placed in our specialized jurisdiction. Our justices–and everyone else at the Land Court–appreciate the trust placed in us to understand and apply the law in a broad range of real-estate-related cases. We understand that lawyers and parties come to the Land Court expecting us to be up to speed and engaged on the subject matter with which we have been entrusted. While many of our judicial colleagues sitting in other departments of the Trial Court (and even some members of our own families) may quietly wonder, looking at the types of cases we hear, how the judges of the Land Court get up and come to work each morning, I assure you that we do so with gusto. We value role we play in the development of the common law of real estate in Massachusetts.
I have taken on my new job at a time of considerable change and opportunity at the court. My immediate predecessor, Chief Justice Judith C. Cutler, reached the age of retirement after a decade on the bench, the last five years as our Chief. And her predecessor, Chief Justice Karyn F. Scheier, also retired at the end of 2018; she had been a member of the court since 1994, including ten years as Chief Justice. These two distinguished jurists left indelible positive marks on our court and the Commonwealth’s judicial system.
We were delighted to welcome in January of this year Justice Jennifer S. D. Roberts and Justice Diane R. Rubin, who came to the Land Court after long years of prominent private practice and are leaping into their new positions, taking on very ample caseloads. They join four other greatly accomplished and respected Associate Justices, Hon. Keith C. Long, Hon. Robert B. Foster, Hon. Howard P. Speicher, and Hon. Michael D. Vhay. It is good to have our right-sized court up to its full fighting strength, at least for now. And I am grateful not only for the talent and dedication of my judicial colleagues, but of the entire leadership and staff of the court, including (but by no means limited to) Recorder Deborah J. Patterson, Deputy Court Administrator Jill K. Ziter, Deputy Recorder Ellen M. Kelley, Chief Title Examiner Edmund A. Williams, and Chief Surveyor Stephen LaMonica.
Improvements over the last several years in the general and real estate economies of the Commonwealth have brought a change in the mix of the court’s work. When the real estate markets were moribund and property values stayed stagnant, a disproportionate share of the court’s work concerned mortgage foreclosure and tax lien foreclosure matters, and others arising out of transactions and development plans in distress. Servicemembers Civil Relief Act cases have declined somewhat from the peak of more than 30,000 new cases filed in a year. More recently, an increasing percentage of our case load is driven by the state’s vibrant development activity–zoning and subdivision permit appeals, including some arising out of very large and complicated project plans. We also have rapid growth in the court’s volume of partition cases, with common owners of land seeking the court’s aid in equitably dividing their joint real estate asset. Both land use and partition cases demand additional courtroom time and more legal research and writing, continuing the pressure on the judges and staff of the court to keep up.
The court, which labors a bit with an undeserved reputation as a place of green eyeshades and quill pens, is moving ahead with a number of twenty-first century innovations. Like the rest of the Trial Court, the Land Court has embarked on e-filing of cases. We are underway with an initial pilot program in our Servicemembers Civil Relief Act case type, our largest by volume, and expect soon to expand that pilot to include more filers, before opening those cases to e-filing by all lawyers and firms. Following that, we intend to pilot e-filing in another large category of cases, those seeking the foreclosure of the right of redemption following real estate tax lien takings. Over the next several years we will push to bring e-filing to a wide variety of the court’s docket, including most of our Miscellaneous case types. The density of pleadings filed in many Land Court cases–a number of which include large plans, lengthy reports, and other challenging exhibits–may present some challenges, but the court shares with the bar the goal of being able over the coming years to have filed and accessed on line most of our ordinary case types. We soon will launch in at least one of the court’s sessions a trial of a “judicial tools” setup, which should allow the judge and clerk in that session to work with digital versions of many of the filings in the cases that judge is hearing.
We also have commenced work on modernizing the computer systems used by our Surveying Department, with the intention to have current drafting and survey production and indexing capabilities in use. The court is the repository of registered land plans from across Massachusetts dating back to soon after the founding of the Land Court in 1898, and, in later phases of this project, we hope to have digitized many of these critical plans, to enhance access to them by the bar, surveyors, and the public.
In a continuing effort to provide more efficient hearing and disposition of contested cases, a committee now chaired by Justice Speicher is convening, and will look over the court’s rules, standing orders, and procedural practices, building on past rules changes to expand opportunities to expedite, simplify, and reduce the cost of litigation in the Land Court. We anticipate soliciting the involvement of the bar and other stake holders in this effort over time. A related effort will look over the court’s mediation and other alternative dispute resolution process and methods. While we of course will insure every litigant the chance to have his or her case decided by the court, we acutely are aware that not infrequently the best resolution is one the parties themselves reach. We intend to seek out more and better ways to facilitate that.
One area of the court’s business that continues to grow in volume and complexity are the many cases subsequent to registration, our “S-cases,” in which the court is asked to make orders relative to the certificates of title for registered land. Our long-time Chief Title Examiner, Edmund Williams, soon will be retiring after decades of extraordinary service to the court, the conveyancing bar, and the citizens of the Commonwealth. He has helped the court issue extensive guidelines and guidance to the court’s land registration districts and the real estate bar. His successor, once selected and in place, will be challenged to hold to the high standards of the court’s Title Examination Department, and to continue positive strides made in the processing of the important S-case petitions. The last comprehensive revision to the court’s Guidelines on Registered Land issued in 2009, and the new Chief Title Examiner will work closely with the justices of the Land Court, with the input of the court’s Assistant Recorders and the bar, to make any needed updates and expansions to those guidelines.
My new post as Chief Justice of the Land Court presents exciting opportunities and challenges. I am grateful to have the very best judicial colleagues, court leaders, and so many other members of the Land Court team working alongside me, helping the court achieve great things for the users of the court and the citizens we serve.
The Honorable Gordon H. Piper has served on the Land Court since his appointment by Governor Jane M. Swift in 2002. Trial Court Chief Justice Paula M. Carey appointed him Chief Justice of the Land Court Department in October, 2018. Chief Justice Piper holds a 1978 bachelor of arts degree from Vanderbilt University, summa cum laude, where he was admitted to Phi Beta Kappa. In 1982, he received his JD degree, cum laude, from Cornell Law School.
In its recent decision in Martin v. Simmons Properties, LLC, 467 Mass. 1 (2014), the Supreme Judicial Court (“SJC”) held that the rule it adopted in its landmark decision in M.P.M. Builders, LLC v. Dwyer, 442 Mass. 87 (2004) – which allows the owner of land burdened by an easement to relocate the easement or change its dimensions – applies to easements appurtenant to registered land. Rejecting a contrary holding of the Appeals Court, the SJC affirmed an underlying Land Court ruling that registered land is not exempt from the “modern rule” of M.P.M. Builders. Martin not only clarifies that M.P.M. Builders applies to registered land, it confirms that, in the wake of M.P.M. Builders, a long line of cases concerning the rights of parties holding easements that are clearly described or are shown on a plan is no longer good law.
Plaintiff Clifford J. Martin (“Martin”) in 1969 purchased about one-third of an acre of registered land in a commercial-industrial district near the Medford-Somerville line. Martin’s parcel – Lot 3A – has the benefit of several easements, including an easement of passage over Way A, which crosses a number of other lots in the area. In 1993, defendant Simmons Properties, LLC (“Simmons”) purchased three of the lots that Way A crosses. Simmons made various improvements on its parcels, and some of those improvements protrude into Way A.
In 2007, Martin sued Simmons in Land Court, alleging 15 acts of encroachment on Way A. Some of these encroachments were initiated by Simmons; others predated its ownership of its lots. While conceding that, to date, none of these encroachments prevented him from using Way A to access Lot 3A, Martin claimed he was entitled to have the encroachments removed so he could use the full width of Way A. After trial, the Land Court ruled that Martin was not entitled to the removal of any encroachments from Way A.
The Land Court reasoned that, though the encroachments in Way A are within an easement referenced in Martin’s certificate of title, this confers on Martin no “absolute right to removal . . . .” While the certificate provides certainty as to Martin’s title – including the existence of his easement over Way A – the court saw no reason to forsake the usual rules of property law applicable to unregistered land, under which the owner of the burdened land (Simmons) may use its land for all purposes not inconsistent with the rights of the easement holder (Martin). The Land Court noted that, if Martin’s use of Lot 3A were to change, as a result of which the encroachments in question did materially interfere with his rights in Way A, Martin might then be entitled to “judicial adjustment” of the encroachments.
Martin appealed, and on the question of his right to removal of the encroachments, the Appeals Court reversed. After noting the distinction between easements intended to remain fully open and those intended to provide only a “convenient passage,” the court stated, “we are aware of no case that holds that only a convenient passage is intended when a right of way is reserved over a way defined and located by reference to a Land Court plan.” The Appeals Court found support for its view in a line of cases holding that, where the description of a right of way is definite and free from ambiguity – particularly where it is shown on a plan – the easement holder is entitled to use the entire width of the described way. Having placed Martin’s easement over Way A into this category, the court concluded that “[a] finding that the obstructions do not interfere with present or future uses is immaterial . . . .” With regard to encroachments that pre-dated Simmons’ ownership of its lots, the Appeals Court remanded the case to the Land Court for further findings to determine which party is responsible for their removal.
The SJC granted Simmons’ application for further appellate review and affirmed the Land Court’s ruling that the encroachments in Way A need not be removed. The SJC held that the case is governed by its 2004 decision in M.P.M. Builders, supra, in which the court announced the adoption of the “modern rule” of § 4.8(3) of the Restatement (Third) of Property (Servitudes) (2000). Section 4.8(3) provides that, unless expressly prohibited by the terms of an easement, the owner of the burdened property can make reasonable changes in the location and dimensions of an easement to permit “normal use or development” of the property, but only if those changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the easement holder in its use and enjoyment, or (c) frustrate the purpose for which the easement was created. The SJC noted that, while M.P.M. Builders concerned the relocation of an easement, the same rule applies in a case like Martin, where the easement has not been relocated but rather its width has been narrowed in some places.
Regarding the fact that Martin’s easement is appurtenant to his registered land and is shown on a Land Court plan, the SJC rejected the Appeals Court’s view that this rendered the easement “immutable.” The SJC found nothing in its precedents or in the land registration act to suggest that different rules apply to easements appurtenant to registered land. The court noted that while the registration system provides certainty with respect to title – including by assuring owners of registered land that their easements continue to exist – it does not purport to grant additional property rights. Thus, the SJC concluded, “we adhere to our well-established precedent and consider the easement here under existing jurisprudence as to recorded land.”
Martin is an important decision for two reasons. First, it confirms that easements appurtenant to registered land are not accorded special status, and are subject to changes in their location and dimensions under the rule of M.P.M. Builders. Second, more broadly, it makes clear that the long line of cases on which the Appeals Court relied – standing for the proposition that where an easement is described with precision or is shown on a plan, the easement holder has the right to use the full width of the easement – is no longer good law. Under the “modern rule” of M.P.M. Builders, all easements are subject to changes in their location and dimensions unless by their express terms they prohibit such changes. Thus Martin highlights an important drafting note for grantees of easements: if you like the location and width of your easement, and you want to keep it, make sure it includes language prohibiting the kinds of changes otherwise authorized by M.P.M. Builders.
Donald R. Pinto, Jr. is a Director of Rackemann, Sawyer & Brewster, P.C. where he handles all types of real estate litigation. He is the founder and editor of masslandusemonitor.com, a widely-read real estate and land use law blog.
by Judge Robert B. Foster
Voice of the Judiciary
This past December 30th marked the first anniversary of my taking the oath as a Justice of the Land Court. Now that I’m no longer a rookie judge, it’s a good time to reflect on my first year on the bench.
First, let me answer the two questions everyone asks. Yes, there is a gavel on the bench, but I’ve never used it. No, the court didn’t give me a robe; I bought it myself, online. Very quickly, I learned to hike it up when I sit down so I don’t get it caught under the wheel of my chair. It took me longer to learn the Court’s internal procedures and to navigate the route to our courtrooms. The Land Court staff was enormously helpful and patient in guiding me through these equally difficult mazes. I especially appreciate their many subtle, face-saving hints, such as, “No, judge, that’s the elevator for the prisoners!”
What I never fully appreciated until I joined the bench, though, was the paradox at the heart of judging. I am constrained by the law—no matter what I think, I am legally, ethically, and morally bound to follow the law as stated in our statutes and interpreted by the SJC and Appeals Court, and to apply that law to the facts of the case to the best of my ability. At the same time, in every case I must make decisions, for the most part unreviewable, for which there is no other guide but my knowledge guided by my experience—for lack of a better word, my judgment. More often than not, these decisions test that judgment, and I am left to do my best, knowing that a decision is necessary, even if it is not the one that others might make or that even I might make with more experience.
It is with this paradox that I most need the lawyers’ help. I always try to remember that lawyers are before me because they are helping clients who believe they have been wronged. At the same time, lawyers should know that they are my partners in our common pursuit of justice. I’m fully aware that how the law applies to the facts is not often self-evident. Like every judge, I rely on the lawyers for well-written, well-researched briefs that educate me about the case. I need the lawyers to bring to my attention all applicable law, including contrary cases, and all relevant facts, even the unfavorable ones. The lawyer’s job is to show me the path through all the facts and the law, good and bad, to the result the lawyer is seeking.
Oral argument is as important to me as the briefs. On motions to dismiss or for summary judgment, I use the oral argument to test the limits of each side’s position and to give one side the chance to respond to the other side’s arguments. I look for where the parties agree so that I can identify what’s really disputed. But where oral argument is especially important is in helping me with the “judgment” decisions, for which there are always considerations beyond a reading of the law. This is where the lawyer’s advocacy skills really come into play. I need the lawyers to make sure that I’m taking into account all the considerations important to their clients when I make a decision.
To that end, allow me to provide some advice, based on my entire fourteen months on the bench. The lawyer’s presence and behavior in court has a profound effect on the proceedings. This is especially true at trial, where counsel is, in effect, the surrogate for the party, and where the lawyers and I are interacting over the course of several days. It is important to remember that, like the Eye of Sauron, “I see you.” I see every eye roll in response to an opponent’s argument, every shrug in response to a sustained objection, every whisper to co-counsel in response to disbelieved testimony. I especially notice the demeanor and behavior of counsel towards the witness and towards opposing counsel. I’m happy to say that the vast majority of the lawyers before me show real courtesy and civility to each other and to witnesses. But the lawyer’s demeanor goes deeper than civility.
Many lawyers, it seems to me, advocate from anger. This is natural—after all, the lawyer is here because her client, whether plaintiff or defendant, claims to have been wronged by the actions of the other side. The lawyer wants me to understand, even to feel the injustice done to her client. The most direct way to communicate this injustice, many lawyers believe, is to express the anger that their clients naturally feel at being in court.
This approach, while understandable, is ultimately self-defeating. Anger begets anger, and interferes with reaching a just outcome, either negotiated among the parties or issued by the judge. My experience has been that the most effective lawyers advocate from a position, dare I say it, of joy. They express joy at the opportunity to present their clients’ stories and to convince me of the justice of their cause. This is not some new age inner bliss; it is the fierce joy of battle. These lawyers relish the give and take, and embrace the role of partner with the court in reaching the right outcome for their clients. Advocating from joy does not mean shying away from one’s position; the most zealous and vigorous advocates in my court have been the joyous ones. In enjoying their advocacy, they give emotional support to their position. They invite, rather than insist, that the judge join them in looking favorably on their clients. They lead the judge to the conclusion that ruling for their clients is necessary to follow justice.
At my swearing in, I quoted those words of Moses: “Justice, justice shalt thou follow.” My rookie year has convinced me more than ever that this is our task, to follow justice. It is the work of a lifetime, both for me as a judge and for the lawyers appearing before me. But it is one we all should pursue with joy. As the saying goes, it is not incumbent upon us to finish the task, but neither are we free to desist from doing it.
Robert Foster is a Justice of the Massachusetts Land Court. Before his 2011 appointment, he practiced with Rackemann, Sawyer & Brewster, P.C. He is a graduate of Haverford College and Harvard Law School.