REG 34279-S

September 17, 1987

Barnstable, ss.



The plaintiff, the Green Company, Inc., has filed a complaint with this Court seeking to deregister Lots 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53 and 54 shown on Land Court Subdivision Plan 34279G from the provisions of G.L. c. 185 in accordance with G.L. c. 183A, §16. A hearing was held at the Land Court on September 10, 1987 to consider the complaint at which arguments were made by counsel and testimony given by Alan Green, an officer of the plaintiff, and Edward C. Mendler, a partner in the law firm of Nutter, McClennen & Fish, who prepared the condominium documents.

On all the evidence I find and rule as follows:

1. The master deed of the Kings Way was presented to the Land Court for approval in July of 1987, and as originally drafted, the condominium affected only registered land. After lengthy conferences with Hon. John E. Fenton, Jr. and Attorney Patti Reitz of the Land Court staff, during which suggestions were made to Mr. Mendler as to revisions to bring the documents within Land Court standards and to afford protection to unit owners, the condominium was withdrawn from consideration, and the Court was notified that a parcel of unregistered land was to be added thereto. The Court then notified counsel that this did not guarantee automatic approval of withdrawal, but was informed that the documents already had been recorded.

2. Prior to acquisition of the real estate by the plaintiff, Lot 41 on said plan had been developed by a third party with 19 homes constructed. This lot is not a part of the Kings Way development.

3. Oak Harbour Associates, a predecessor in title to the plaintiff, obtained a special permit from the Board of Appeals of the Town of Yarmouth, dated October 16, 1975, extended on April 13, 1984 by petition of Light House Associates and finally modified and supplemented by decision dated January 23, 1986 on the plaintiff's petition and that of Green Oak Harbour, Inc. (Exhibit B). The special permit is said to impose certain open space requirements on the development.

4. Title to Lots 10 and 14 on the plan has been or will be held by an umbrella trust in accordance with the requirements of the special permit. These lots appear in orange on the attached plan (the "Plan") of the condominium development (Exhibit A) together with Lot 41 which is not within the Kings Way condominium. Also in orange on the Plan is Lot 51 which ultimately may become a condominium for the active elderly. The lots underlined in green on Exhibit A, i. e., 43, 44, 45, 47, 48, 49, 50, 52 and 53, are to be the site of the golf course. On Lot 43 there is presently under construction a sewage treatment plant required by a Department of Environmental Quality Engineering (DEQE) permit (Exhibit C). This area is cross-hatched on Exhibit A.

5. The only unregistered land involved in this project is a single lot which adjoins the southeasterly boundary of Lot 45 abutting Manchester Road, is the site of a two-family home and was acquired approximately one year ago to provide housing for employees of the sewage treatment plant. The plaintiff was represented in the purchase by Brian McDermott, Esquire, of Falmouth in the County of Barnstable, and it is alleged that Mr. Mendler was unaware of the acquisition and the declarant's plans that this lot be added to the condominium.

6. Registered land involved in the condominium constitutes approximately 200 acres, [Note 1] whereas the area of the unregistered parcel is somewhat less than one-half acre (i.e., 20,000 square feet).

7. The master deed was recorded with Barnstable Deeds in Book 5870, Page 223 (Exhibit E). It provides that the condominium, Kings Way, is to be established in several phases. The only real estate presently within the condominium is situated in Parcel A-1, a portion of Lot 46, which consists of 27 residence units. Conceivably then the condominium may consist only of a portion of Lot 46, all of which, of course, is registered land. The declarant may add to the condominium additional phases as described at length therein, but there is no obligation that this be done. It is clear from the requirements of the special permit that Kings Way, developed in several phases or as a series of condominiums constructed on the registered land, is to have the benefit of the open space requirements mandated by the Yarmouth Board of Appeals; title to the lots providing the open space is to be in a separate entity, familiarly known as an umbrella trust. The documents do not deal with the ultimate disposition of the unregistered land which the Master Deed recites is to form a part of the condominium; the documents are unclear as to whether it is to be added with a future phase. Obviously no units will be constructed in or on it so it would appear to be a common area tied into the sewage treatment plant with title to be held by the umbrella trust or the declarant-developer, the plaintiff. Exhibit A to the Master Deed sets forth the encumbrances to which the real estate is subject and includes in paragraph Dl0 a lease of Lot 7 to Brian E. McDermott, Trustee, as evidenced by a Notice of Lease dated July 31, 1987, recorded prior hereto.

General Laws chapter 185 has created the most successful system of registered land within the United States. The strength of the system has been the control thereof by the Land Court and the inability of owners of registered land to withdraw their properties from the registered land system at will. The process of registration is complex and costly to the Commonwealth. It accordingly has been the policy generally not to allow withdrawal from the system. The instances in which the statutes permit the Court to authorize withdrawal are very limited. One of these is the creation of a condominium which is comprised of land of which a portion has had its title registered pursuant to the provisions of G.L. c. 185 and the remainder has not. The statutory section which authorizes a withdrawal is G.L. c. 183A, §16 which reads as follows:

§16. Registration or Recording of Master Deed; Effect.

The owners of any land may submit the same to the provisions of this chapter by the recording in the registry of deeds of a master deed, or, if all of the land is registered under the provisions of chapter one hundred and eighty-five, by filing the master deed under the provisions of said chapter. If a portion of the land desired to be submitted to the provisions of this chapter is registered land under said chapter one hundred and eighty-five, such recording of a master deed of the whole shall be a sufficient ground for withdrawal of the registered land from the provisions of said chapter one hundred and eighty-five. (1963, 493, §1; 1970, 139, §4; 1973, 554).

In instances where the unregistered land comprises an integral part of the condominium, the Court routinely allows deregistration. Such also is the case where the line of registration divides a building, a parking area or some functional aspect of the condominium. Alternatively, in some instances the owners have filed complaints to register that portion of the condominium which is not within the system, and the Court has allowed such approach. Prior to the adoption of St. 1973, c. 554, §16 required the Court to authorize the removal of any registered land included within the condominium, whether a portion of the land was unregistered or not. The then version of §16 which was inserted by St. 1970, c. 139, §4 read as follows:

Section 16. The owners of any land may submit the same to the provisions of this chapter by the recording in the registry of deeds of a master deed, and, upon such recording and a petition by the owner, the land court shall issue an order removing such land from the provisions of chapter one hundred and eighty-five. The land court shall not inquire into the sufficiency of said master deed nor its compliance with this chapter unless the owner shall seek to register said master deed under the provisions of chapter one hundred and eighty-five.

It is clear, when the language of the previous and present §16 is compared, that the section was amended to guard against a requirement that the Land Court had to allow the withdrawal of any registered land within a condominium and to afford the Court discretion to determine whether in any particular case deregistration was appropriate.

On all the evidence I find and rule that in the present case the area of the unregistered land is so small in comparison to that of the entire development at Kings Way and indeed may never become a part of the condominium, that the unregistered land is a minute appendage to the registered land, that its function in the condominium is unclear, that in effect the registered land is not the portion of which the statute speaks but the entire condominium, that there is not sufficient ground for withdrawal of the registered land from the provisions of chapter 185, that to grant withdrawal in this instance would serve no purpose other than to bar prospective purchasers from the benefits of the registration system, and that finally to authorize deregistration of the lots set forth in the complaint would adversely affect the integrity of the system.

The plaintiff contends that the language of §16 is mandatory, but I interpret it as authorizing the Court to allow the withdrawal of the registered land from the system if this appears warranted. The presence of land both registered and unregistered is sufficient to authorize the Court to allow withdrawal but not to compel it. As I read the statute, it does not require the Court to allow withdrawal and on that basis I find the present case singularly ill-suited for withdrawal. Should I authorize a withdrawal in the present case in view of the discrepancy between the area covered by the registered land and that of the unregistered piece which is not within the perimeter of the original condominium, but is a small appendage adjacent thereto, then no complaint for withdrawal ever could be denied if technically there were any unregistered land within the condominium regardless of the location thereof since section 16, if taken literally, speaks neither in terms requiring the unregistered and registered land to abut or even to be within the same geographical location.

I make no decision as to whether the plaintiff acted in bad faith in adding the unregistered parcel to the condominium where it was not originally included. In some cases, such a factor might be determinative as to the allowance of a complaint to withdraw, but there are sufficient other reasons here which militate against allowance of the complaint to make unnecessary a determination of the question.

Judgment accordingly.

exhibit 1

Exhibit A


[Note 1] It is unclear whether the area figure includes Lot 41 which is no longer a part of the development, but it is assumed that it does include other lots which are within the concept of Kings Way but may not be ultimately a part of a condominium.