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Monday, April 11, 2016



If either you or a client owns a vacation home or other land in a private subdivision, you will want to be aware of legislation before the Massachusetts legislature that would enact a workable procedure better to insure the continuing maintenance of private ways and other common amenities.  If no HOA (Homeowners Association) has been established, what will you tell your lender client who advises that, for a Fannie Mae conforming loan, a house on a private way must have a recorded “private way agreement” to insure that the way will be maintained?  If your client is concerned for how to insure that financial responsibility for these expenses will be shared by those who benefit from use of the way, Senate Bill 1113 may have the answer. 
Many roads and other private amenities, such as bridges or common beaches and recreational areas, are privately owned. Therefore, the municipality is not required to provide maintenance or upkeep of these common amenities, which may be at risk of falling into serious disrepair.  This is especially problematic without an established owners’ association or other method for raising the necessary sums for maintenance and upkeep.  The existing provisions of M.G.L. c. 84, §§ 12-14, first enacted in 1787 and essentially unchanged since then, provide a procedure to call a meeting of proprietors and rightful occupants of a private way or bridge.  Those provisions include a cumbersome process for calling such a meeting, limit the parties entitled to call a meeting, and provide little guidance in terms of assessing and collecting maintenance costs. 
REBA Practice Standard No. 26, Land Subject to a Non-Statutory Obligation to Pay Assessments, recommends in such situations that the conveyancer obtain written documentation that all outstanding assessments have been paid through the date of conveyance.  However, such assessments are not enforceable as a lien since there is no statutory authority for it.  That there may exist an equitable servitude based upon an implied in fact contract may be of little comfort to your client. There is no obligation to record an instrument evidencing payment of assessments, and certain Registries may not even accept such an instrument for recording. 
Senate Bill 1113, in lieu of requiring a warrant from a district court or town clerk or from a justice of the peace to call a meeting of property owners as in the current statute, instead allows such a meeting to be called by mailed notice together with publication in a local newspaper in accordance with other modern statutory notice provisions.  The bill also expands the universe of property owners entitled to call a meeting to include not only those who own the common amenity, as in the existing statute, but also to include other property owners who have the benefit of using the common amenity.  This serves to include in the maintenance and repair process all affected property owners and not simply those who have an ownership interest in the common road, bridge or other amenity by virtue of owning property immediately adjacent thereto.  In addition, the proposed bill expands the scope of common amenities covered by the statute to include not only private ways and bridges but also other common amenities requiring shared maintenance, such as private parks, buildings, recreational facilities, beaches and the like and privately owned utility lines.  The bill provides the necessary framework for the property owners to form an owners’ association where none currently exists, and to make assessments for maintenance and repair costs.  If such an association has been created by a recorded instrument, its provisions continue to apply.
REBA’s Legislation Committee, chaired by Fran Nolan and Doug Troyer, has recommended certain perfecting additions to Senate Bill 1113, including to allow an HOA to lien the property of owners that fail to pay their allocable share of maintenance and repair costs similar to that provided for a condominium association for unpaid common charges under M.G.L. c. 183A, and to provide a parallel to the 6(d) certificate.  Primary drafting of the REBA-recommended text came from committee members Lisa Delaney, Marty Loria, Dan Ossoff and Doug Troyer. A copy of the REBA-recommended changes is at:
Senate Bill 1113, co-sponsored by Senator Daniel A. Wolf (D-Harwich) and Representatives Thomas J. Calter (D-Kingston) and Brian R. Mannal (D-Barnstable), follows the framework of legislation originally sponsored in past years by retired Representative Cleon H. Turner (D-Dennis). Three other bills, with bipartisan sponsorship, have similar provisions.  S.1113 has been recommended by the Joint Committee on Municipalities and Regional Government.   
The bill seeks to be fair to property owners, recognizing that those who use the roads and amenities are the logical parties to pay for their upkeep.  If you support these improvements in the statute, please let your State Senator and State Representative know as soon as possible.  Formal sessions end this year on July 31, 2016.  Contact information is available at 
REBA Legislation Committee
Click here to visit the REBA Legislation Committee Page

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