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Wednesday, May 25, 2011

Chapter 61 Continues to Befuddle Some

Chapters 61, 61A and 61B seem to create more than their fair share of confusion. On multiple occasions I have seen Seller’s Counsel (and believe it or not, Town Counsel) err in the manner in which land classified under one of the Chapters is removed from such designations. The statutes were modified in 2008 with the goal of clarifying the process wherein a city or town is granted a right of first refusal to purchase land classified under the statutes. From a title perspective it is imperative that the parties properly document the process and record the necessary affidavits and documents. If you were to write an article on the process for removing property from Chapter 61B, for example, you would simply cut and paste the provisions of Section 9. The statute does a good job of spelling out the steps. A recent Land Court decision clarified the fact that the sale of land classified under one of the Chapters with no intent to change the use of the land from recreational use, would not trigger the Town’s option to purchase the land.  In Town of Wayland v Dean Crescitelli and Eleanor A. Blaqure, No. 08 MISC 380131(CWT), decided April 5, 2011, Judge Trombly found that the buyer of land classified under Chapter 61B “did not have intent to convert the use of the residentially assessed portion of his locus to a residential, commercial or industrial use” and reiterated  that “If the buyer's intent is not disclosed before the sale of subject land, the buyer's ‘intent will become evident soon after the sale when the [buyer] begins a process of conversion.’” citing Sudbury v. Scott, 439 Mass. 288, 299 (2003) (interpreting an analogous statute G.L. c. 61A, § 14). Judge Trombly also reminded us that “The discontinuance of forest certification shall not, in itself, for the purposes of [G.L. c. 61A, § 9], be considered a conversion.” In the earlier Sudbury v Scott case, the SJC warned that “… there may be instances where the new owner will continue the agricultural use for a brief period after sale to conceal his true purpose, with the intent to defeat the town's right of first refusal. A town that can establish such intent as of the date of sale, and a failure to give notice, is entitled to specific performance of its option to purchase.” Town of Sudbury v. Scott, 439 Mass. 288, 299, 787 N.E.2d 536, 544 (2003).
It will be interesting to watch the subject land to see if a new use is now proposed for the land whereas a town’s option to purchase is valid only while the land is classified under the statute and for one year thereafter, and the parties removed the land from such classification in 2007 when the battle with the Town began. Perhaps the one defect in the law is that a landowner can remove land from Chapter 61B and one year later chose to change the use of the property to another use and by-pass the option to purchase process, unless the city or town can prove in court that the landowner had the intent to convert the land at the time the property was declassified.
- PAUL F. ALPHEN, Esq.
http://www.balasalphensantos.com/

2 comments:

  1. You write that the "statute does a good job of spelling out the steps" to declassify for the parties to properly document the process for title purposes - kudos to the legislature, but I suspect think it will be up to the courts to address the "defect" in the law that you cite.

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