On July 19, 2007, the Massachusetts Supreme Judicial Court rendered a unanimous decision in the case of William J. Devine v. Town of Nantucket, 449 Mass. 499 (2007), that upholds the integrity of the state’s recording system as a means of identifying title defects. The case involves a purported eminent domain taking by the Town of Nantucket of property adjacent to the Nantucket Memorial Airport that the Town had inadvertently removed from its tax rolls and thereafter listed as owned by “owners unknown.” When the Town later decided to take the property by eminent domain for potential Airport expansion, it made no effort to locate the actual property owner, who thus had no notice of the taking. For decades the Town neither took physical possession of the property nor made any effort to demarcate it as Town property. Since the taking was recorded against “owners unknown,” the actual property owner’s name did not appear in the grantor index in connection with the taking. For all of these reasons, the taking could not be discovered by a reasonable title search and was not discovered when Devine subsequently purchased the property. The property was thereafter returned to the Town’s tax rolls, the back taxes were paid, and septic system and building permits were issued by the Town for construction of a house on the property. Nantucket subsequently revoked the building permit, asserted that its taking was valid as against Devine, and argued in the ensuing litigation that the recording of a taking need not be accurate as to the identity of the property owner provided it contains a description of the property.
NELF filed an amicus brief arguing that Devine’s rights as a bona fide purchaser without knowledge should trump those of Nantucket where the Town failed to make reasonable efforts to locate the owner of the property, failed properly to record the order of taking so as to apprise future purchasers of it, and failed to make any use of the site for decades. NELF argued, and the Court agreed, that the Massachusetts takings statute, G. L. c. 79, § 3, read in conjunction with state recording statutes, G. L. c. 36, c. 183, §§ 29-42, and c. 184, §§ 15- 35, calls for a recording sufficient to inform the owner and potential purchasers of a taking and not merely the ministerial act of filing a notice that will never be found.