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/

OK,WE ARE BLOGGING

How many times have we heard that to stay current, we have to engage in social media? We have read concerns about young lawyers crossing the permissible boundaries of solicitation on their Facebook pages, but we have been told that having a web site is useless unless we also use other forms of social media. Having read that 72 year old U.S. Supreme Court Justice Breyer is on “the Facebook” and on “the Twitter”, was the straw that broke the camel’s back. REBA now has a Facebook page and we are now blogging. I was asked to initiate the REBA blog conversation because it is apparent that my REBA News articles are nothing but long-winded blogs (ok, you caught me).

I also have to thank Richard Vetstein, James Sifflard and George Warshaw, who were speakers at the 13^th Annual MCLE Real Estate Law Conference. They emphasized the importance of remaining current with communication technology. I told my 20 something sons that I now have a Facebook page and I will be blogging. Their responses via text message: “HA HA HA. Why is my father on Facebook?” Well, it appears that the younger generation checks their favorite blogs and websites each morning the same way that we old people read the newspaper each morning. Blogs can be useful to keep the real estate community current on changes in the law and emerging issues, but it can also be a form of therapy. The therapeutic value can come from sharing experiences that arise in our practices. I am reminded of that regularly when gentle readers connect with something I have written in REBA News. I recently wrote a rant about some of the mean spirited blogging that can crop up around applications pending before a Planning Board. I called it a form of adult bullying when anonymous malcontents spread lies about a proposed project. I heard from a town planner who said the article was being circulated among local officials who have been frustrated by the recent increase in adult bullying; but they were relieved to read that other towns were also having similar experiences.

- PAUL F. ALPHEN, Esq.
http://www.balasalphensantos.com/

So, here we go. Our 150 year old institution is staying forever young.