The Real Estate Bar Association for Massachusetts (REBA) is an organization dedicated to protecting the integrity of the practice of real estate law across New England. Its self proclaimed mission, to “advance the practice of real estate law by creating and sponsoring professional standards, actively participating in the legislative process, creating educational programs and materials, and demonstrating and promoting fair dealing and good fellowship among members of the real estate bar,”¹   is one that its members strive towards, and the progress that the organization has made has been a great benefit to real estate lawyers across Massachusetts. The Practice of Law by Non-Lawyers Committee in particular has made great advances in protecting both real estate lawyers and their customers from non-lawyers attempting to practice real estate law. Chaired by Jon S. Davis, Esq. the committee successfully led winning efforts in two lawsuits to prevent non-lawyers from practicing real estate law.

In the 1993 case, MCA, et al v Closings, Ltd, et al, (CA NO. 90-3053-C) Justice Charles T. Spurlock made the ruling of law that,

1. The practice of law in Massachusetts includes the handling of residential real estate conveyancing and the following specific acts:
   (a) The preparation of deeds, mortgages, releases, transfers and other instruments affecting title to real estate and other agreements in connection with residential real estate closings; and,
   (b) advising persons, firms and corporations as to their legal rights in connection with the conveyance residential real estate.²

This ruling establishes a real estate closing as the practice of law, putting it out of reach for non-lawyers. This protects the client by preventing a non-lawyer from giving incorrect or uneducated advice, and brings business to those who should have it, namely trained and educated real estate attorneys.

The 2001 finding of fact by Justice S. Jane Haggerty in the case of MCA, et al v Colonial Title and Escrow, et al (CA NO. 96-2746-C) was instrumental in further preventing non-lawyers from practicing law. The finding determined that the practice of law includes the examination of titles and not just the offering of legal advice. Haggerty found that,

Whether for a purchase or refinance transaction, a title evaluation is a two-step process: a search for the pertinent documents and an assessment of the legal significance of those documents. It is the latter task that requires a thorough knowledge of the law. For example, an attorney must be familiar with the law relating to easements, adverse possession, attachments, bankruptcy, condominiums, divorce, leases, partnerships, liens, trusts and corporations in order to adequately evaluate title to real property. A title examination for issuance of a title insurance policy in a residential purchase transaction is the same examination that an attorney conducts when he certifies a title…³

With this finding, the examination of titles for closing would be considered the practice of law. By allowing examination of titles only by real estate lawyers, the best interests of the client are protected. Severely limiting the list of people who can legally examine titles brings more business to real estate law practices and protects the reputation of title examiners by preventing those not qualified to adequately examine a title from doing so.

More recently, in November of 2006, REBA filed legal actions to stop a group of twelve notaries from performing real estate closings. As non-lawyers, members of the notary public are barred from performing such closings. The complaint asserts that these 12 members of the notary public have been illegally closing real estate deals as a third party to the transaction. The notaries in question not being attorneys, their actions representing lenders at the closing of real estate transactions are undoubtedly illegal, and put both the lender and the borrower at risk of being misinformed as to legal issues that may arise from the transaction. REBA, in seeking an order restraining the notaries from performing these illegal acts, is taking a big step in the right direction for protecting both parties in a real estate transaction.

In a complaint filed against National Real Estate, REBA is attempting to put a stop to a practice known as “witness closing.” This practice circumvents the law by using a lawyer solely as a witness in closing real estate transactions. Citing the Opinion of Justices. 289 Mass. 607, 613 (1935), REBA’s complaint states, “When the conveyance of the real estate interest is entrusted to a third person, who is not a party to the transaction, that third person must be an attorney who controls and supervises the entire conveyancing process.”⁴ The practice of “witness closing” is far more dangerous to clients, in that it allows for the same misinformation and potential for error, but does so with the illusion of security. REBA seeks to put an end to such a dangerous practice, and their success in this matter will prove invaluable to providing the clientele of true real estate lawyers with the security and knowledgeable service they deserve.

In taking on these cases and establishing an organization of real estate attorneys, REBA has helped promote the business of real estate lawyers across Massachusetts. More than that, in preventing non-lawyers from practicing law by examining titles and providing legal advice, REBA protects those that all reputable attorneys desire to protect—the client. Through REBA’s efforts, clients of real estate attorneys all over the state can rest assured that they are receiving the best legal assistance and advice available, the most important thing a real estate attorney can provide their client.

¹ 2007 Practice of Law by Non-Lawyers Committee. March 13, 2007

² Order for Judgment, Closings, Ltd. March 13, 2007

³ Colonial Title and Escrow Inc, et al. March 13, 2007

⁴ Complaint – National Real Estate (NEW). March 14, 2007