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  • Acts
  • 2002
  • Chapter 496 AN ACT RELATIVE TO CERTAIN RECORDED MEMORANDA OF LITIGATION INVOLVING REAL PROPERTY.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Chapter 183 of the General Laws is hereby amended by striking out section 5B, as appearing in the 2000 Official Edition, and inserting in place thereof the following section:-

Section 5B. Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of the title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.

SECTION 2. Chapter 184 of the General Laws is hereby amended by striking out section 15, as so appearing, and inserting in place thereof the following section:-

Section 15. (a) A wit of entry or other proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon, shall not have any effect except against the parties thereto, their heirs and devisees and persons having actual non-record notice thereof, until a memorandum containing the names of the parties to the proceeding, the court in which it is pending, the date of the writ or other commencement thereof, the name of the town where the real property liable to be affected thereby lies and a description of the real property sufficiently accurate for identification is recorded in the registry of deeds for the county or district where the real property lies; but this section shall not apply to attachments, levies of execution or proceedings in the probate courts, other than proceedings under equity jurisdiction. No recorded affidavit or other recorded instrument, including any affidavit under section 5B of chapter 183, suggesting that the proceeding has been commenced shall have any effect on the title to real property nor provide any notice thereof, constructive or actual, and any person acquiring an interest in the real property, other than a party to the proceeding, and heir or devisee of the party or any person having actual non-record notice thereof, shall be deemed to be without the notice, and the person's interest shall be exempt from any judgment entered in the proceeding, unless and until the instrument has been endorsed by a justice of the court in which the proceeding is pending in accordance with subsection (b). The memorandum may be dissolved at any time by recording in the registry of deeds a notice of voluntary dissolution duly executed and acknowledged by the party who executed the memorandum, by that party's successor in interest or by an attorney of record for either of the parties.

(b) Any party seeking a memorandum of lis pendens under this section shall commence the underlying proceeding by means of a verified complaint or other complaint as is required under the rules of court to include a certification by the claimant made under the penalties of perjury that the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom. The complaint shall name as defendants all owners of record and any party in occupation under a written lease. Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum. Notwithstanding the preceding sentence, the court on its own motion may decline to endorse the memorandum of lis pendens, if the court does order the temporary equitable relief as will preserve the status quo pending further proceedings. If the memorandum is approved ex parte, it shall contain an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage or destroy the property or the improvements thereon. A register of deeds or assistant recorder of the land court shall not accept for recording or registration a memorandum under this section, unless it contains the endorsement and is accompanied by an affidavit stating that the plaintiff or his attorney has served notice of the allowance thereof by certified mail addressed to all parties to the action.

(c) If the memorandum is approved ex parte, any party aggrieved thereby may move at any time for dissolution of the memorandum, and the court shall hear the motion forthwith and in any event not later than 3 days after the date on which notice of the motion was given to the claimant. At the hearing the claimant shall have the burden of justifying any finding in the ex parte order that is challenged by the party who is aggrieved thereby. A party may also file a special motion to dismiss the claimant's action if that party believes that the action or claim supporting the memorandum of lis pendens is frivolous. The special motion to dismiss, unless heard at the time the claimant first applied for a judicial endorsement under subsection (b), shall be heard at the same time as the hearing on the motion to dissolve the memorandum of lis pendens. If the court determines that the action does not affect the title to the real property or the use and occupation thereof or the buildings thereon, it shall dissolve the memorandum of lis pendens. The special motion to dismiss shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In ruling on the special motion to dismiss the court shall consider verified pleadings and affidavits, if any, meeting the requirements of the Massachusetts rules of civil procedure. If the court allows the special motion to dismiss, it shall award the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery. Nothing in this section shall affect the right of the moving party to any other remedy otherwise authorized by law. All discovery proceedings shall be stayed upon the filing of the special motion pursuant to this section; but the court, on motion and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the special motion. In the event there are un-adjudicated claims remaining after the dismissal of any claim pursuant to which the memorandum of lis pendens was recorded, the court shall order the entry of partial judgment with respect to the claim dismissed pursuant to this section.

(d) Any party aggrieved by a ruling under subsection (c) or by the denial of an ex parte motion for a memorandum of lis pendens, may appeal pursuant to the first or second paragraphs of section 118 of chapter 231. Thirty days after the entry of an order dissolving a memorandum of lis pendens, or of an order or judgment dismissing the claimant's action as provided hereinabove, the order or judgment shall become final unless the party seeking the memorandum has filed an appeal under this paragraph and records notice thereof within the 30 day period in the registry of deeds for the county or district in which the real property lies. Attested copies of orders, judgments and notices of appeal shall refer to the book and page of the recorded memorandum and shall be accepted for recording in the registry of deeds. The recording of an attested copy of the order or judgment or of the order of dissolution, in either case without a timely appeal therefrom being filed, or of a judgment dismissing the appeal, or the recording of a voluntary dismissal of the memorandum of lis pendens as provided in subsection (a), shall be conclusive evidence that the action or proceeding which was the subject of the memorandum of lis pendens does not affect the title to the real property or the use and occupation thereof or the buildings thereon.

(e) Nothing in this section shall deprive an owner of registered land from proceeding under section 114 of chapter 185 to challenge the validity of the registration of a memorandum of lis pendens.

(f) For the purposes of this section, a proceeding arising under a statute, ordinance or by-law regulating land use, including without limitation one related to zoning or wetlands regulation, is not a proceeding that affects title to real property or the use and occupation thereof or the buildings thereon.

Approved January 1, 2003.