Massachusetts has an important law allowing for the clarification of potential issues in the ownership of property. G.L. 183, § 5B provides for the following:
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 title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.
Commonly known as “5B Affidavits”, these affidavits allow for the recording of information relevant to real property. 5B affidavits can be used to correct problems arising with Massachusetts real estate, such as potential problems involving the conveyance of property. I have found 5B affidavits to be useful for foreclosure related matters; a foreclosure by entry, which is a foreclosure that begins with the recording of a certificate in the land records, requires a homeowner to oppose this foreclosure within three years of this certificate’s filing in the land records. A 5B affidavit can be used as a means of preventing this type of foreclosure from occurring.
5B affidavits, importantly, must be certified by an attorney. The law does not allow a non-attorney to record one of these affidavits on their own.
While 5B affidavits are commonly used for real estate matters, there is surprisingly little caselaw on the limits to how these affidavits can be used. Although the law is written broadly, for use in “clarifying the chain of title” for real estate, I take the position that an attorney should exercise caution in recording such an affidavit. A 5B affidavit should have a good faith basis in law and fact, and have a real purpose for the respective property it pertains to. An affidavit that does not meet this standard can potentially subject a property owner (and attorney) to potential liability.
If you find yourself in a real estate dispute, contact me for a consultation.