Massachusetts conveyancing has more traps per transaction than any other state we practice in. An attorney is a necessary participant in the closing, the broker offer to purchase can bind you before a lawyer has read anything, and a meaningful share of Massachusetts land sits under a separate title system with its own rules. Michael Holmes is admitted in Massachusetts and handles residential and commercial transactions, title questions, and disputes over property there.
Massachusetts Is an Attorney Closing State
The rule comes from the Supreme Judicial Court decision in Real Estate Bar Association for Massachusetts v. National Real Estate Information Services, 459 Mass. 512 (2011), read together with the unauthorized practice statutes at G.L. c. 221 sections 46 and 46A. It is frequently overstated, so here is what it actually holds.
The Court declined to treat conveyancing as one indivisible activity and instead sorted the tasks. The practice of law includes drafting the deed and other instruments that create or modify legal rights, and analyzing title to render an opinion on marketability. Not the practice of law, standing alone: ordering a title examination, gathering public records, preparing the settlement statement, checking documents for valid execution, recording at the registry, issuing title insurance, and disbursing funds.
As to the closing itself, the Court said a lawyer is a necessary participant to direct the proper transfer of title and consideration and to document the transaction — and pointedly, that an attorney who merely shows up, hands over documents never previously seen, and witnesses signatures adds nothing. The attorney is also expected to analyze marketability before closing and to perform or obtain the title rundown immediately before recording.
Two clarifications worth having: there is no Massachusetts statute declaring that every closing requires an attorney, and the exposure for getting it wrong falls on the non-lawyer as unauthorized practice, plus the title and insurability problems that follow — not on the buyer and seller as a voided sale.
The Offer to Purchase Can Bind You
In most states the broker offer is a preliminary step and the purchase and sale agreement is the contract. Massachusetts is different. In McCarthy v. Tobin, 429 Mass. 84 (1999), the Supreme Judicial Court held that an executed standard-form Offer to Purchase was itself a binding, enforceable contract, and that signing the later P&S was a formality rather than a condition precedent. The buyer got specific performance.
The practical lesson is unglamorous and worth money: have counsel look at the offer, not the P&S. By the time the purchase and sale agreement is circulating, the essential terms may already be locked. Massachusetts has no statutory attorney-review window and no cooling-off period for residential sales; the sequencing conventions your broker describes are market custom, not law, and they vary by region and board.
Recorded Land and Registered Land
Massachusetts maintains two parallel systems. Most property is recorded land, examined the traditional way through the grantor and grantee indices. A significant minority is registered land under G.L. c. 185 — the Land Court Torrens system — where the Commonwealth has adjudicated title and issued a certificate.
For a buyer the difference is real. Under section 46, a registered owner holds free of all encumbrances except those noted on the certificate, plus seven statutory carve-outs including certain tax liens, public ways, leases of seven years or less, and federal liens. Under section 53, no title to registered land can be acquired by adverse possession or prescription, and no way by necessity is implied.
Registered land has its own filing mechanics — documents are filed with the Land Court registry district and noted on the certificate rather than simply recorded — and mistakes in that process are a recurring source of title defects. Land can also be withdrawn from registration by petition under section 52. Knowing which system a parcel sits in is the first question, not a detail.
Homestead and Tenancy by the Entirety
The automatic homestead under G.L. c. 188 is $125,000 and requires no filing. The declared homestead is $1,000,000, raised from $500,000 by the Affordable Homes Act in August 2024. Owners 62 or older, and owners meeting the statutory disability standard, may declare under section 2 and take the full amount per owner without proration — two qualifying spouses can reach $2,000,000. Where the home is held in trust, section 5 requires the trustee to sign the declaration. Section 14 requires notice of homestead rights in every mortgage transaction.
Tenancy by the entirety is available to married couples and carries a meaningful shield: under G.L. c. 209 section 1, the interest of a debtor spouse is not subject to seizure by that spouse creditor so long as the property is the principal residence of the non-debtor spouse. It does not protect against joint creditors, a mortgage both signed, or federal tax liens, and both spouses remain liable for necessaries. Creation is technical — under G.L. c. 184 section 7 a conveyance to a married couple using express joint-tenancy words creates a joint tenancy and not a tenancy by the entirety.
Condominiums and the Rolling Super-Priority Lien
Massachusetts condominiums are created under G.L. c. 183A by recording a master deed. Section 6 gives the association a lien for unpaid common expenses from the moment an assessment comes due, perfected by the master deed itself with no further recording.
The part that surprises lenders and buyers: the association lien is prior to a first mortgage to the extent of the common expense assessments that would have come due during the six months immediately preceding an action to enforce the lien, plus costs and reasonable attorney fees. Special assessments, late charges, fines, penalties and interest are excluded from that priority amount. And in Drummer Boy Homes Association v. Britton, 474 Mass. 17 (2016), the SJC held an association may file successive actions creating multiple contemporaneous six-month priority liens — the rolling super-priority. A unit with a long arrears history can carry far more senior debt than the six-month figure suggests.
Deed Excise
The Massachusetts deed excise runs $2.28 per $500 of consideration — the statutory $2.00 under G.L. c. 64D section 1 plus a 14% surcharge — which works out to $4.56 per $1,000. Barnstable County and the islands have their own arrangements, including separate land bank fees on Martha Vineyard and Nantucket that are customarily paid by the buyer. By custom the seller pays the excise, though that is allocation by contract rather than statute. Mortgages and deeds involving the Commonwealth, a municipality or the United States are exempt.
Talk to a Massachusetts Real Estate Attorney
Whether you are buying, selling, refinancing, or untangling a title problem, the Massachusetts questions are worth asking before the offer is signed rather than after. See our Massachusetts overview or the general real estate practice page, and contact the Massachusetts office to start.