Patriot Resorts Corp. v. Register of Deeds of Berkshire
Patriot Resorts Corp. v. Register of Deeds of Berkshire
Opinion of the Court
At issue is the proper interpretation of G. L. c. 262, § 38, which specifies the fees for recording documents with a registry of deeds.
Background. Patriot develops and sells so-called time share estates in resort properties. See generally G. L. c. 183B, §§ 1 et seq. Incident to its sales of time share estates, Patriot often accepts payment of a portion of the purchase price by extending a loan to the purchaser; in those transactions the loan is represented by a note, and secured by a mortgage executed in Patriot’s favor. After recording a number of such purchase money mortgages, Patriot typically assigns the mortgage interests (and associated notes) to an institutional lender as collateral security for credit extended by such a lender to Patriot.
The fees for recording documents with the register of deeds are set by statute. As in effect at the times relevant to the present case,
“The fees of registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be as follows: For entering and recording any paper, certifying the same on the original, and ■ indexing it and for all other duties pertaining thereto, ten dollars for the first four pages. The fee for recording a deed or conveyance shall be twenty-five dollars for the first four pages. The fee for recording a mortgage shall be twenty dollars for the first four pages. If the deed, conveyance, mortgage or other paper contains more than four pages, the rate shall be one dollar for each page after the first four pages.
“For entering any additional marginal reference or refer*116 enees when required, one dollar for each reference.”4 ,5
In addition to the basic recording fees, G. L. c. 44B, § 8, inserted by St. 2000, c. 267, § 1, imposes a surcharge, as follows:
“(a) The fees of the registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be subject to a surcharge of $20. The fees for so recording, filing or depositing a municipal lien certificate shall be subject to a surcharge of $10. The surcharges shall be imposed for the purposes of community preservation. No surcharge shall apply to a declaration of homestead under chapter 188. No surcharge shall apply to the fees charged for additional pages, photostatic copies, abstract cards, additional square feet for the filing and recording of plans or for additional or required marginal references.”6 ,7
On July 17, 2002, Patriot presented to the register for recording an instrument of assignment (assignment) assigning to Liberty Bank a collateral security interest in 169 mortgages that had been granted to Patriot by various time share estate purchasers. The assignment instrument was eight pages in length, including two pages setting forth its substantive terms, a page containing a notarial acknowledgment, and a five-page schedule describing the various mortgages it assigned. The register imposed a total fee (including Community Preservation Act surcharge) of $5,074 for recording the assignment. The register assessed the fee based on his treatment of the assignment as
By complaint filed in the Superior Court on August 16, 2002, Patriot sought a declaration that the fee imposed by the register exceeded the proper fee by $4,872.
Discussion. “We interpret a statute according to the intent of the Legislature. Commonwealth v. Galvin, 388 Mass. 326, 328 (1983). ‘[T]he primary source of insight into the intent of the Legislature is the language of the statute,’ International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983), and that is our starting point. Simon v. State Examiners of Electricians, 395 Mass. 238, 242 (1985). Statutory language should be given effect consistent with its plain meaning. Where, as here, that language is clear and unambiguous, it is conclusive as to the intent of the Legislature. Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep’t, 439 Mass. 352, 355-356 (2003).” Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct., 446 Mass. 123, 124 (2006).
Patriot contends, quite correctly in our view, that the assignment was a single “paper,” within the meaning of that term in G. L. c. 262, § 38, and a single “instrument,” within the meaning of that term in G. L. c. 44B, § 8. Accordingly, the charges for its recording should have included a basic recording fee of $10, a Community Preservation Act surcharge of $20, an additional $4 for the number of pages by which the assignment exceeded four pages, and an additional $168 for the number of additional marginal references the assignment necessitated.
Second, the specified recording fees do not strictly correspond
The register also reminds us that a court must give substantial deference to the reasonable interpretation of a statute adopted by the administrative agency charged with its enforcement. See Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006). However, the principle is “ ‘one of deference, not abdication,’ ” and we will not hesitate to overrule an agency interpretation that is unreasonable or arbitrary. Moot v. Department of Envtl. Protection, 448 Mass. 340, 346 (2007), quoting from Boston Preservation Alliance, Inc. v. Secretary of Envtl. Affairs, 396 Mass. 489, 498 (1986).
The record includes the affidavit of Richard R Howe, Jr., the incumbent register of deeds for the northern Middlesex district and a former president of the Massachusetts Registers and Assistant Registers of Deeds Association. In his affidavit, Howe uses the term “multiple document” to describe a document (which, according to Howe, includes the assignment involved in
We return to the point of beginning: an examination of the words of the statute. Black’s Law Dictionary 1142 (8th ed. 2004) defines “paper” as “[a]ny written or printed document or instrument.” As we have observed, G. L. c. 262, § 38, as then in effect, imposed a recording fee of $10 on any “paper,” while imposing higher fees on any “deed or conveyance” or any “mortgage.”
Contrary to the register’s characterization of the assignment as comprising multiple assignments, it is a single instrument of assignment, from a single assignor to a single assignee.
There are any number of conceivable methods for the assessment of recording fees on instruments presented to a registry of deeds for recording. The Legislature has adjusted both the manner and amount of such fees through various amendments to the statute since its first enactment in 1795. If the register believes that current conveyancing practice warrants a further refinement of the formula for assessing fees on one or more classes of documents, he is free to suggest to the Legislature an amendment to the statute. However, under the statute as in effect at the time of the transaction involved in the present case, the fees imposed by the register exceeded the fees authorized by the statute.
The judgment of the Superior Court is reversed. The case is remanded to the Superior Court for further proceedings consistent with this opinion, to determine the amount of excess fees collected by the register from Patriot.
So ordered.
A related question concerns the application of G. L. c. 44B, § 8, which imposes a surcharge on recording fees, as part of the Community Preservation Act.
By St. 2003, c. 4, § 51, the Legislature rewrote the section, substantially increasing the base fees for recording various types of documents, and eliminating, inter alla, the separate charges for additional pages and additional marginal references.
A marginal reference is a written reference entered in the margin of an earlier recorded, related document that refers the reviewer to the book and page of the newly recorded document.
We have omitted from the quoted language the second, third, and fourth paragraphs of the statute (which do not bear on the question presented) as well as the sixth paragraph (which added a cross reference to the surcharge imposed under the Community Preservation Act).
A somewhat different fee schedule applies to instruments affecting land registered under G. L. c. 185. See G. L. c. 262, § 39; G. L. c. 44B, § 8(b).
A second surcharge (of five dollars per instrument) is imposed by G. L. c. 9, § 26, to be applied toward modernization of registries of deeds. However, that surcharge became effective on March 15, 2003, and hence did not apply at the time of the recording that gave rise to this action.
The register assessed an additional $4, at $1 per page for each page of the assignment that exceeded the initial four pages.
According to Patriot’s complaint, the register should have imposed a total fee of $202, comprised of one recording fee of $10, and one surcharge of $20, on the assignment, an additional $4 on each of the pages of the assignment that exceeded four, and an additional $168 for each marginal reference necessitated by the assignment in excess of the first such notation.
Each mortgage assigned would receive a marginal reference noting the book and page of the assignment. See note 4, supra.
The register contends that much more additional work is required to index the assignment in accordance with the dictates of G. L. c. 36, § 25, asserting that a separate index entry must record the name of each of the various borrowers on each assigned mortgage. The statute does not so require. Under G. L. c. 36, § 25, the register is required to maintain a grantor and grantee index, identifying as to each recorded instrument the (i) date of reception; (ii) grantor(s); (iii) grantee(s); (iv) book; (v) page; and (vi) town where the land lies. Under an instrument assigning a mortgage, the “grantor” is the assignor of the mortgagee’s interest in the mortgage, and the “grantee” is the assignee of that interest. The mortgagor’s (or borrower’s) interest in the property covered by the mortgage is unaffected by the assignment. The need to trace ownership of the mortgage interest (for, among other purposes, assuring authority to execute a discharge of the mortgage upon its satisfaction) is achieved by means of the marginal references on the mortgage and any assignments thereof.
Under the fee schedule currently in effect, see note 3, supra, the fee for recording an assignment of mortgage has increased to $50, while the fee for recording a mortgage has increased to $150. We also note that the fact that the Legislature chose in the most recent amendment to eliminate separate charges for additional pages and marginal references weighs against the register’s assertion that the Legislature must have intended for fees to correspond to the work involved in recording a particular document.
Surcharges collected under G. L. c. 44B, § 8, are paid into the Community Preservation Fund established under G. L. c. 44B, § 7. Surcharges collected under G. L. c. 9, § 31, from March 15, 2003, through June 30, 2008, see note 7, supra, are paid into the Registers Technological Fund established under G. L. c. 29, § 2JJJ; from and after July 1, 2008, such surcharges are to be forwarded to the General Fund.
The register’s argument gains no force from Technical Information Release 00-12, addressing Community Presentation Act Surcharges, issued by the Department of Revenue, which provides that “[i]f multiple recording fees are charged for one document, e.g., the registry charges three recording fees for an instrument assigning three mortgages, a surcharge is due on each separate fee collected.” The technical information release does not furnish any interpretive authority for the registers’ practice of imposing multiple recording fees on such documents, but simply clarifies that the Community Preservation Act surcharge is to be imposed whenever a separate recording fee is collected.
The differential persists in the current version of the statute, albeit in different amounts.
The dissent, without explanation, similarly characterizes the assignment as comprising multiple mortgage assignments, rather than as a single assignment of multiple mortgage interests. See post at 123.
In a supplemental complaint filed in the Superior Court, Patriot has identified several other assignment instruments on which it claims it was overcharged, based on the same statutory interpretation by the register.
Dissenting Opinion
(dissenting). The central issue in this case turns on
The argument advanced by the plaintiff, Patriot Resorts Corp. (Patriot), and accepted by the majority, is that there was but one paper filed — the covering document affixed to the computer spread sheet. According to Patriot’s theory, the 169 mortgage assignments listed in spreadsheet cells were merely an appendage, with no recording fee significance under the statutes. On this point, Patriot contends, and the majority accepts, that somehow the cover document “bundled” everything, so that only $202 was due in recording fees and surcharges under G. L. c. 262, § 38, as then in effect, and G. L. c. 44B, § 8. In contrast, the registry of deeds charged Patriot a total fee of $5,074 for recording and processing the 169 assignments of mortgage.
I reject the construction advanced by Patriot. Simply because Patriot devised a computer model that produced a spreadsheet containing all of the assignments to a single assignee as a “virtual” filing of multiple mortgage assignments and presented this to the registry of deeds, instead of tendering to the registry hard copy pages of paper instruments memorializing each of the mortgage assignments does not, in law, change the nature of the subject land transactions as instruments, that is “papers” of independent legal significance transferring rights in land and to be recorded as “papers” spread upon the public land title system in our registries of deed under G. L. c. 262, § 38.
For these reasons, I believe each singular assignment of a mortgage — albeit purportedly “bundled” in a covering document or documents, or, as in this case, “bundled” and compressed in the computer-generated cells of a spreadsheet document — constitutes a “paper” subject to the recordation and surcharge fees imposed by G. L. c. 262, § 38, and G. L. c. 44B, § 8. Therefore, I respectfully dissent.
1. Procedural and summary judgment record background. According to the summary judgment record, this case involves three sets of papers transferring rights in land, (a) 169 “TimeShare Estate Warranty Deeds,” (b) 169 mortgages, and (c) 169 assignments of the aforesaid mortgages. On July 17, 2002, Patriot presented the registry with 169 separate instruments or “papers” for each of the warranty and mortgage deeds in classes (a) and (b), thereby filing 238 “papers” subject to the G. L. c. 262, § 38, recording fees. For the mortgage assignments, however, Patriot devised a different filing format. Patriot pre
Capturing the work entailed and the duties undertaken by the registry of deeds to record the 169 mortgage assignments submitted in Patriot’s computer cell chart, the Superior Court judge issued a thoughtful and comprehensive memorandum of analysis and distillation of the summary judgment record. With respect to the mortgage assignments, the judge wrote in pertinent part as follows:
“Upon receipt, Registry personnel entered the assignment into the recording cash register, thereby assigning the document a recording time and date, book, page, and document number. Registry personnel then manually imprinted each page of the document by use of a book and page stamping machine. The corresponding book and page number of each of the 169 mortgage deeds was typed onto the Schedule “A” of the assignment [filed by Patriot]. . . .
“Registry personnel next extracted the data from the assignment and manually entered into the Registry’s computer database the following information for each assignment: assignor (Patriot), assignee (Liberty Bank), mortgagor (each of the 169 individuals), property address or unit number for each of the 169 mortgaged properties, and the book and page number of each of the 169 mortgages. This process required 169 separate entries for each of the 169 mortgages. The defendants assert that the process requires great accuracy and caution and, as a result, is time-consuming. . . .
*126 “Next, Registry personnel proofread all the information entered into the computer database. Following proofreading, each of the 169 mortgages was marginally referenced by stamping the language “See Assignment Page_ Page_” and then hand writing the specific assignment book number and page for each of the 169 mortgages. Registry personnel then sent the assignment to the scanning/ filming department where a photographic image of the assignment was taken and stored in the database for public viewing. The pages were printed from the scanned images and then manually compared with their original counterparts to insure accuracy. Finally, Registry personnel microfilmed the assignment for document preservation purposes.”3
According to the affidavit of Richard P. Howe, Jr.,
Here G. L. 262, § 38, appears to embody the purpose of cost recovery by the phrase “for all other duties pertaining thereto.” The catalog of “other duties” or additional work imposed by the Patriot filing, as found by the trial judge, appears to be voluminous and to approximate 168 times the amount of work required for a single filing far more closely than it resembles a single filing with merely 168 incremental “marginal references” which the majority suggests would yield registry fees of only $1 per marginal reference. See ante at 117.
2. Principles of statutory construction. Given the Legislature’s clear message and expression of intent the purpose underlying G. L. c. 262, § 38, is to “recover revenue for the Commonwealth and the various counties by increasing certain fees and charges of the . . . Registers of Deeds,” St. 1971, c. 880, I would look to the following principle of statutory construction. “The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Phillips v. Pembroke Real Estate, Inc., 443 Mass. 110, 114 (2004), quoting from Industrial Fin. Corp. v. State Tax Commn., 367 Mass. 360, 364 (1975).
The majority, however, cites differing principles of statutory construction to support its interpretation of G. L. c. 262, § 8, including, the majority writes, that “ ‘[statutory language should
In any event, I rely on the principle that, “[wjhen rules of statutory construction produce conflicting results, we must discern, as closely as possible, what the Legislature intended. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 89 (1934) (canons of statutory construction apply to ascertain meaning of statute, but if one canon does not effectuate purpose of statute as whole, it yields to “the wider view in order that the will of the legislature shall not fail”); Commonwealth v. Dale D., 431 Mass. 757, 760-761 (2000), and cases cited.” Commonwealth v. Russ R., 433 Mass. 515, 521 (2001). Here the legislative intent for fee collection under G. L. c 262, § 38, to recover revenues for the duties undertaken by the registries of deeds is beyond question.
3. Conclusion. To interpret G. L. c. 262, § 38, as Patriot submits (and the majority accepts), would be in direct conflict with the legislative intent of recovering costs and revenue associated with recording transactions transferring interests in land and affecting the chain of title as set forth in the books and records of the Commonwealth’s registries of deeds.
For these reasons, I would affirm the entry of summary judgment for the defendants.
For ease of reference in this dissent, and to provide the context in which the term “paper” appears in G. L. c. 262, § 38,1 repeat the pertinent part of the statute, which also appears in the majority opinion.
1The fees of registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be as follows: For entering and recording any paper, certifying the same on the original, and indexing it and for all other duties pertaining thereto, ten dollars for the first four pages. The fee for recording a deed or conveyance shall be twenty-five dollars for the first four pages. The fee for recording a mortgage shall be twenty dollars for the first four pages. If the deed, conveyance, mortgage or other paper contains more than four pages, the rate shall be one dollar for each page after the first four pages.
“For entering any additional marginal reference or references when required, one dollar for each reference.”
(Emphasis added.) G. L. c. 262, § 38, as amended through St. 1985, c. 515. See also G. L. c. 44B, § 8, quoted in the majority opinion, which imposes a surcharge pursuant to the Community Preservation Act.
As the majority opinion notes, by St. 2003, c. 4, § 51, the Legislature rewrote G. L. c. 262, § 38, substantially increasing the base fees for recording various types of documents, and eliminating, the staircased fees for supplemental pages and marginal references. As so amended, G. L. c. 268, § 38, provides as follows:
“The fees of the registers of deeds, except as otherwise provided, to be paid when the instrument is left for recording, filing or deposit shall be as follows:
“For entering and recording any paper, certifying the same on the original, and indexing it and for all other duties pertaining thereto, $50;
“For recording a declaration of trust, $200;
“For recording a deed or conveyance, $100;
“For recording a mortgage, $150;
“For recording a declaration of homestead, $30;
“For recording and filing a plan, $50 per sheet; and
“For all copies of documents, whether copied out of books or generated electronically, $1 per page, and all coin operated copy machines shall be $.50 per page.
“The fees of the registers of deeds, except as otherwise provided, to be*123 paid when the instrument is left for recording, filing or deposit, shall be subject to a surcharge under section 8 of chapter 44B.”
As is obvious from a comparison of the prior version of G. L. c. 262, § 38, at issue in this case (because all the recording events preceded the 2003 amendment), and the 2003 amendment to G. L. c. 262, § 38, notwithstanding the amendment, the issue of what is a “paper” subject to the enumerated fees remains.
Following the issuance of the Superior Court judge’s decision, an error was discovered in the processing of the 169 mortgages when first presented to the registry by Patriot. The error related to the indexing of the names of the assignor, assignee, and individual property owner(s), all of which were not correctly entered by the registry staff, for all of the 169 mortgage assignments. Although it was believed that the borrowers’ names for each of the mortgage assignments was entered into the computer database, the computer in fact only accepted ninety-nine names. Additionally, Patriot had included only one of the borrowers’ names for each assignment even though many of the assigned mortgages involved more than one borrower. The registry contacted Patriot, which did not object to omissions in the index as long as book and page numbers were entered onto Schedule A and the copy of the mortgages appearing in the registry books contained a reference to the assignment. Evidently, the registry agreed to this practice, because many names were not in the database. After the error was corrected, a supplemental affidavit was filed with this court by joint motion. According to the register’s amended and supplemental affidavit, the error was corrected as follows: “[T]he Registry corrected the index and entered the information concerning each property owner/borrower and the property’s address into the computer index so that every assignment is separately indexed. This process has been completed for all transactions filed by Patriot and included in this action.”
The original error does not affect the above description taken from the Superior Court judge’s memorandum, nor does it affect the analysis set forth herein. This is because with the corrected indexing (which is the standard indexing practice, and which by inadvertence was not done in the original processing) all of the work described above in the Superior Court judge’s description was done, yielding the recording fees imposed by the registry for the assignment of mortgages, which fees are the subject of this appeal.
Howe is the register of deeds for the Middlesex North Registry of Deeds and a past president of the Massachusetts Registers and Assistant Registers of Deeds Association.
The registers also cited the Department of Revenue’s Technical Information Release, TIR 00-12.
There are two problems at least with this reliance as marginal references in
The same revenue reduction, notwithstanding additional recordation work, would also affect G. L. c. 44B, § 8. Such surcharges are directed to cities and towns “for the purposes of community preservation” under G. L. c. 44B, § 8.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.