A Power of Attorney Case Study

 Kenneth A. Mitchell, Jr.

In a recent case, our office was asked to prepare a title insurance policy for a proposed insured where a prior recorded deed contained an apparent defect

(of title) caused by the grantor clause, signature and notary block each drafted as “Susan C. Smith, attorney in fact for Donald P. Peters.”

A power of attorney (POA) is an instrument in writing appointing an attorney-in-fact for a definite purpose, setting forth his or her power and duties. A power of attorney can be used in real estate transactions to authorize an “agent” (attorney-in-fact) to execute deeds, and other instruments on behalf of the “principal” (grantor or mortgagor).

Generally, for a real estate closing, a POA must explicitly grant authority to the agent to convey the real estate and should comply with M.G.L. c.190B, §§ 5-501, 502, 503, 504, 505, 506 and 507 (Uniform Probate Code). Unless revoked, POAs often remain effective even if the principal becomes incapacitated. There are several types of POA such as “revocable”, “non-revocable”, “springing”, “limited” or “durable.”

REBA Title Standard No. 34 provides guidance to conveyancers reviewing titles and for those preparing POAs. Land Court Guideline No. 15 assists registry personnel as well as the bar in determining the suitability of instruments presented for filing and affecting recorded and registered land.

When an agent or attorney, for the principal, executes a sealed instrument, the strict technical rule of the common law, requires that it be executed in the name of the principal in order to make his deed. Abbey v. Chase, 6 Cush. 54.

When an agent executes a deed under power of attorney the “grantor clause” should name the grantor only, and should not include the Agent’s name, as though there was no power of attorney. The signature block and execution must clearly indicate that the agent is signing on behalf of the principal. The acknowledgement should be that of the principal, through the act of the agent.

For example, if the seller of the property is Ellie Mitchell (principal), and the agent is Jennifer Newcomb, the grantor clause of the deed into a buyer should read, “Ellie Mitchell in consideration of One-Hundred Thousand Dollars ($100,000) grant to Paul Alexander individually…” The signature block and execution should read, “Ellie Mitchell by her attorney-in-fact Jennifer Newcomb or by Jennifer Newcomb her attorney-in-fact under Power of Attorney recorded with Registry of Deeds Book 55555, Page 333. The acknowledgement should read, “then personally appeared the aforementioned Jennifer Newcomb and acknowledged the foregoing instrument to be the free act and deed of Ellie Mitchell”.

The “grantor clause” of the deed presented to our office read, “Susan C. Smith, attorney-in-fact for Donald P. Peters in consideration of Two-Hundred Forty Thousand Dollars ($240,000.00) grants Cindy Small and Jasmine Small as husband and wife as tenants by the entirety…” The signature block read and was executed as, “Susan C. Smith, Attorney-in-fact for Donald P. Peters.” The acknowledgement clause read, “on this 25^th, day of February, 2007, before me, the undersigned notary public, personally appeared Susan C. Smith, Attorney-in-fact for Donald P. Peters, proved to me through satisfactory evidence of identification, which was/were Massachusetts driver’s license, to be the person whose name is signed on the preceding document, and acknowledged to me that (she) signed it voluntarily for its stated purpose”

Our office reported the deed as a title defect, where the form of the “grantor clause”, “signature block”, “execution” and “acknowledgment” appeared improper. The requirement in our commitment for title insurance was for the seller to obtain and record a confirmatory deed from either the principal himself, or from the principal through their agent under POA, using the correct “grantor clause,” properly executed and acknowledged. Of course, the principal had since passed away and the conveyance was a few “bona-fide-purchaser for value” removed from the true current owner.

After several conversations with title insurance underwriters, there was a clear difference of opinion in the industry. Several title insurance companies denounced the deed as invalid or defective, requiring the estate of the principal be probated and a confirmatory deed signed by the heirs of law, and or personal representative or authorized signatory. Another title insurance company acknowledged the defect but allowed us to “issue a clean policy”, in reliance on a “Default Judgment” arising out of Tyler J. Amaral v. Julia C. Silva, Land Court Case No. 20 MISC 000104 (HPS).

In Amaral,  Silva sold her interest in two plots of land to Rachel C. Nameika, one of Amaral’s predecessors in title. The grantor clauses of the deeds, although slightly different, effectively stated, “I, John T. Silva, under a Durable Power of Attorney for Julia C. Silva dated January 24, 1998, to be recorded herewith, hereby grant…” A cloud on the title was clear, where the grantor clause should have simply stated, “I, Julia C. Silva, hereby grant...”

Although a “default judgment,” Judge Speicher wrote in his opinion:

 

Based upon these facts, the Court concludes that the words used in the grantor clause were, as a matter of law, the “functional equivalent” of the use of the words, “Julia C. Silva” …  [and that] [s]uch a perceived mistake in deeds involving a POA creates, “no justification … for imposing a ‘gotcha’ forfeiture” on the parties to the deed or their successors in interest. Where, as here, the intent of the parities is clear, “a distinction without a difference” should not be the subject of legal concern. (Citations omitted.)

The Court was not aware of any Massachusetts decision holding that a deed executed in such fashion is invalid. Fretting over such an issue of form creates unnecessary title curative litigation.

Accordingly, the Amaral Court ordered that the deeds were valid and that the use in the grantor clause of the words, “John T. Silva under a durable power of attorney for Julia C. Silva … was as a matter of law the same as the use of the words Julia C. Silva.”

As Attorneys and Agents issuing title insurance policies, this difference of opinion among the industry raises legitimate concerns when underwriting transactions with similar title defects. As title insurance agents, it is best to have these issues thoroughly reviewed and authorized by underwriters prior to issuing a policy. Where the “default judgment” in Amaral, went without challenge, we wonder whether the outcome could have been different if there were opposition to the litigation.

A member of REBA’s Title Insurance and National Affairs Section, Ken Mitchell is a partner in the Norwell firm of Mitchell & Stein.  His practice centers on real estate matters, including title services, title insurance and Land Court practice. He represents National Title Insurance Companies, Renewable Energy Developers, landowners and law firms throughout the Commonwealth.  He is often engaged as title consultant for transactions or litigation regarding land and title issues.  He can be contacted at kmitchell@steintitle.com.

 

 

                                                            

Railroad Rights of First Refusal and Restrictions

Rhonda L Duddy

 

There are two Massachusetts statutes to be aware of that affect former railroad property:

MGL c. 161C, §7, which grants the Secretary of Transportation a right of first refusal on the proposed sale, transfer, or disposition of railroad property; and
 
MGL c. 40, §54A, which requires the written consent of the Secretary of Transportation before a building permit may be issued for any construction on land formerly used as a railroad right of way or related appurtenant property.

 

Right of First Refusal (MGL c.161C, §7)

In accordance with M.G.L. c. 161C, §7, all railroad rights of way or related

facilities offered for sale by railroad companies must first be offered in writing to the Commonwealth. The offer must include the proposed sale price of the rights of way or facilities, and any other terms proposed to be included as part of the sale. The railroad is free to sell its rights of way or facilities to a third party if the Commonwealth declines the offer, or 90 days elapse after the date of the offer without action from the Commonwealth. The railroad may not, however, sell the rights of way or facilities to a third party on more favorable terms than were offered to the Commonwealth.   It is common to see documentation recorded in the chain of title of properties that are impacted by the Commonwealth’s right of first refusal under this statute, to show compliance.  

From a title insurance perspective, if you are asked to insure title to land which was once a railroad right of way or railroad related facilities, and the record doesn’t disclose compliance with the statute, you should contact your Massachusetts state underwriting counsel for guidance. 

Construction Restrictions (MGL c.40, §54A)

In accordance with MGL c.40, §54A, no building permit may be issued for land that was formerly part of a railroad right of way or related property without first obtaining the written consent of the Secretary of the Department of Transportation (DOT).  The local building inspector must submit a formal request for consent and must include detailed information about the proposed project, including plans showing the former railroad and plans for the construction of the proposed project.  The DOT will then review the submission, may require a public hearing with notice in a local newspaper, and then issue a written decision approving or denying the request.  The entire process may take 10 to 14 weeks from receipt of a completed application to the issuance of a determination as to applicability of the statute and/or consent, or the issuance of a building permit for the proposed construction.   

Although the statute requires the local building inspector to file a notice with the DOT before development on former railroad property, in practice, it is often the property owner or their lawyer who submits the required notice.  This deviation from the statutory language reflects the realities of real estate transactions where the owner has a vested interest in ensuring compliance and avoiding delays.  Consequently, lawyers representing owners typically prepare and file the 54A submission with DOT, thereby facilitating the process and ensuring that any development can proceed without legal or regulatory obstacles.  Fortunately, the DOT has a very informative website that provides information as well as guidance and the required forms. 

For more information on DOT’s process of obtaining a right of first refusal pursuant to MGL c.161C, §7 as well as applying for consent for building on lands formerly used as railroads pursuant to MGL c. 40, §54A, follow this link:  https://www.mass.gov/orgs/rail-and-transit-division

With respect to title insurance and MGL c. 40, §54A, former railroad ownership is not considered a defect in title, but it may affect economic marketability.  This was affirmed in Somerset Savings Bank v. Chicago Title Ins. Co. (1995), where the court held that MGL c.40, §54A does not impact legal title; rather the statute regulates land use. 

In the Somerset case, the plaintiff bank issued a mortgage on the property located in Revere.  The land had formerly been used as a railroad right of way.  After the City of Revere issued a building permit to the owner to construct a condominium project, the Attorney General instructed the City to halt the construction because the required consent from the DOT under MGL c.40, §54A had not been obtained. The plaintiff bank then filed a claim under its title insurance policy. The defendant denied coverage on the ground that the effect of MGL c.40, §54A was not an insured risk under the policy.  The court held that the statute imposes a land use restriction, not a defect in title.  Therefore, the statute did not create an encumbrance, lien or defect that would trigger title insurance coverage.

Some railroad rights of way were granted in fee (full ownership), while others were easements (legal rights to use land owned by another party for railroad purposes).  MGL c.40, §54A defines “former railroad right of way” to include both land formerly owned in fee as well as easement based rights of way.  This can create a permitting problem because it relates to former railroad rights of way, which may not be revealed by an inspection or may have been further back in the chain of title than a 50-year title examination would reveal.  There have been instances where litigation or declaratory judgment actions seeking consent post construction were necessary because the title search failed to disclose that the land was subject to the statute.   

Massachusetts courts have held that if a right of way was granted as an easement and is no longer used for its original purposes, the easement may be deemed abandoned and terminated.  Many abandoned railroads in Massachusetts have been converted to rail trails under the federal Rails to Trails program.  These projects often involve the interim use of rights of way as public trails, preserving the corridor for possible future rail use.

Abandonment, however, can be difficult to establish.  In Murray v. Mass. Department of Conservation & Recreation (2016), the court was asked to decide whether an easement authorizing the running of a portion of an old railroad over a stretch that included the plaintiff’s property had been abandoned.  The plaintiffs filed a quiet title action in Land Court claiming that a railroad easement across their property had been abandoned and that the land should revert to them free of the easement.  The easement originated in the 19^th century and had not been used by a railroad since 1972.  Ownership of the railroad’s interests had since transferred to the Massachusetts Department of Conservation and Recreation, which sought to use the corridor for a public trail under the rails to trails program.  The plaintiffs were not able to provide evidence that a certificate of abandonment had been issued so they could not prove that the federal abandonment process had been followed.  The Land Court cannot determine whether a rail line has been legally abandoned unless a certificate of abandonment has been issued and since there was no proof, the Land Court lacked jurisdiction to grant the plaintiff’s request.  As such, the case was dismissed. 

Special care should be taken when former railroad property appears in your chain of title.  You should look for easement language, reversionary clauses, and any reference to railroad use.  A thorough title search should also include review of historical maps.  You will also want to confirm whether the right of way was formally abandoned and whether the federal government or the Commonwealth may retain interests. 

A member of REBA’s Title Insurance and National Affairs Section, Rhonda Duddy is a Massachusetts and New Hampshire Underwriting Counsel for Stewart Title Guaranty Company. She can be contacted at rhonda.duddy@stewart.com. 

Analyzing The One Big Beautiful Bill with Insights There’s a Little Bit of Something for Everyone…

By Leo J. Cushing, Jenna R. Wolinetz, Patricia Weisgerber and Karina Myers

One Big Beautiful Bill Chart

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The so-called One Big Beautiful Bill is now law. The tax sections have a little bit of something for everyone. Below is a summary of

the relevant tax provisions and more importantly the effective dates, many of which are retroactive to January 1, 2025. Some of the provisions will expire on December 31, 2028 or December 31, 2029 and others are so-called permanent. Permanent, however, really means until there is a change in the administration.

The reality is that for large estates, estate planning has become income planning as the I. R. C. § 1014 Step-Up in basis provisions have not been changed.

Estate, Gift and Generation Skipping Tax Exemptions

• This provision increases the exemption to $15M per person and $30M per married couple, for deaths and gifts occurring on or after January 1, 2026.

• Portability remains unchanged for Federal Estate, Gift and Generation Skipping tax Exemptions.

• Massachusetts Estate Tax Exemptions remains $2M per person and $4M per married couple but does not have a gift tax and does not allow for portability.

• With the increased federal estate and gift tax exemption, estate planning has become income tax planning to obtain a step-up in basis under Code Section IRC Sec. 1014. (IRC § 1014 Step-Up in basis provisions were not changed).

SALT Cap - State and Local Income Tax Deduction Limitation

• Beginning on January 1, 2025 this increases the Itemized Deduction to a maximum of $40,000 but reverts back to a maximum of $10,000 in 2030.

• This phases out for taxpayers with a modified gross income (MAGI) over $500,000 and ends entirely with a MAGI of $600,000.

• This SALT cap increase will require applicable taxpayers to reexamine itemized deductions versus the standard deduction since a taxpayer cannot utilize both.

• Notwithstanding the new SALT cap, for pass-through entities in Massachusetts, they are still able to deduct Massachusetts income tax on a businesses' taxable income on the federal income tax return. This is known as the Pass-Through Entity (PTE) tax.

Qualified Business Income (QBI) Deduction - I. R. C. § 199A - 20% Deduction

• This 20% deduction was designed to bring the business income tax on pass-through entities closer to the permanent 21% tax rate for C-corporations resulting in an effective maximum tax rate of 29.6%.

• Efforts to increase this deduction to 23% were unsuccessful.

Caution:  Do not run out and buy lots of equipment without analyzing the next three sections with your tax attorney.

 

I. R. C. § 179 Expensing

• For expenditures on property placed in service after December 31, 2024, there is an annual deduction cap of $2.5M provided that the businesses expenditures do not exceed $4M. For every dollar expended over $4M the available $2.5M deduction is reduced dollar for dollar.

• The § 179 deduction for expenditures can generate a Federal Tax Loss which would also be deductible for Massachusetts Income Taxes.

100% Bonus Depreciation

• Prior to the enactment of OBBBA, the bonus depreciation is equal to 60% of the cost of the qualifying assets.

• For property acquired on or after January 19, 2025, there is now bonus depreciation that is equal to 100% of the cost of qualifying assets.

• Businesses can continue to deduct the cost of qualifying assets in the year the property in placed in service and is unlimited by the dollar amount.

• This Bonus Depreciation is unaffected by the I. R. C. § 179 expense deduction. See I. R. C. § 168(k).

 

Special Depreciation Allowance - Qualified Production Property (QPP)

• This applies to Manufacturing Property and is an elective 100% depreciation allowance for QPP placed in service before January 1, 2031.

• This new provision incredibly allows 100% depreciation of the adjusted basis of non-residential real estate used in manufacturing (excluding the cost of land). It is unclear if the real estate must be owned by the company placing QPP in service.

• According to the statute, this applies to construction of QPP which commences after the enactment of this statute on July 4, 2025 through January 1, 2029 and places the QPP in service before January 1, 2031.

Miscellaneous Itemized Deductions - For Individuals and Trustees

• The OBBBA permanently disallows miscellaneous itemized deductions for all but certain specified educator expenses.

• This change does not affect the deductibility certain expenses in connection with a Fiduciary Income Tax Return.

• See I. R. S. Regulations at 26 CFR § 1.67-4, costs related to all estate and generation skipping transfer tax returns, fiduciary income tax returns, and the decedents final income tax returns remain deductible. The costs are preparing all the other tax returns (for example, gift tax returns are costs commonly and customarily incurred by individuals and thus are subject to the 2% floor, i.e. an itemized miscellaneous deduction).

• Bundled Trustees' fees cannot be deducted and they must be broken down between investment advisory fees (not deductible) and general trustees fees which are deductible.

A founding partner of Cushing & Dolan, P.C. and founding Co-chair of REBA’s Estate Planning, Trusts and Estate Administration, Leo Cushing is one of the pre-eminent tax lawyers in the Commonwealth and a frequent speaker and panelist at the Associations webinars and conference programs.  Leo can be contacted at lcushing@cushingdolan.com.

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A lawyer in Cushing & Dolan’s Litigation Department, Jenna’s responsibility and passion is ensuring that clients' interests are vigorously defended when matters become the subject of a lawsuit. She also works with owners of businesses to resolve partnership disputes and negotiate buy-sell agreements. Jenna’s email address is jwolinetz@cushingdolan.com.

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A Cushing & Dolan lawyer, Patricia Weisgerber’s broad practice area includes estate planning, elder law, probate law, family law, real estate law, business law and tax controversies.  She can be emailed at pweiswgerber@cushingdolan.com.

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A graduate of the Boston Latin School, Karina Myers is a Cushing & Dolan intern and an undergraduate at the College of the Holy Cross.

MBM Principal Peter L. Freeman Prevails Before Massachusetts Housing Appeals Committee in Important G.L. c. 40B Safe Harbor Decision

Peter L. Freeman

The Massachusetts Housing Appeals Committee recently issued an important ruling reversing a claim of a “safe harbor” under M.G.L. c. 40B, ss. 20-23 (“Chapter 40B”) by the Town of Oak Bluffs Zoning

Board of Appeals (“ZBA”). The project, known as Green Villa, proposes to build 100 home ownership units on a 7+ acre site opposite Martha’s Vineyard Regional High School in Oak Bluffs.  The project also has a small commercial component.  On May 20, 2024, the developer filed an application under Chapter 40B for the project. The safe harbor claim would have allowed the Board to deny or defer action on the project for 2 years.

On June 13, 2024, the ZBA made its written assertion that the Board’s approval of the of the Southern Tier Comprehensive Permit, including sixty (60) units counting toward the Town’s Subsidized Housing Inventory (SHI), had created enough affordable housing units under the Town’s Housing Production Plan (“HPP”) to justify a certification from the Massachusetts Executive Office of Housing and Livable Communities (“EOHLC”) that Oak Bluffs had complied with the HPP annual goal and could thus claim a 2-year safe harbor.

Green Villa appealed the safe harbor claim to EOHLC.  On July 24, 2024, EOHLC denied the Town’s safe harbor claim.  The ZBA appealed the EOHLC ruling to the Massachusetts Housing Appeals Committee (“HAC”).  The Martha’s Vineyard Commission (“MVC”) moved to intervene, as the basis of the ZBA’s safe harbor claim was that the time deadlines under the Chapter 40B Regulations for claiming a safe harbor were stayed until the MVC completes its review of the project as a Development of Regional Impact and makes a decision. Green Villa challenged this assertion and is also challenging the jurisdiction of the MVC to review a Chapter 40B project. MVC was granted participation as an Interested Person limited to responding to arguments concerning the MVC.

On April 24, 2025, HAC issued a Summary Decision on Interlocutory Appeal, which upheld the EOHLC denial of the ZBA safe harbor claim.  HAC ruled that there could not be two separate time frames for a Chapter 40B project:

“For purposes of determining safe harbor eligibility, there can only be one operative date, uniformly applied to all 351 cities and towns of the Commonwealth, the determination of which is not dependent upon the MVC’s review of the project. Therefore, the operative date for determining whether a municipality subject to the MVC Act has achieved a statutory or regulatory safe harbor is the date of the comprehensive permit application. Accordingly, the date for determining the Town’s safe harbor status is the date on which the developer’s comprehensive permit application was filed with the Board, May 20, 2024.”

MBM Principal, Peter L. Freeman, who handled the case before HAC with co-counsel Jesse D. Schomer of Dain Torpy, noted that this ruling on timing was critical because as of May 20, 2024, based on the Chapter 40B Regulations, the 60 Southern Tier units that had been added to the Town’s SHI were no longer eligible to count as SHI units (because no building permit was issued within one year of the approval of the project), thus extinguishing the EOHLC certification of safe harbor.

Claims of safe harbor by municipal zoning boards are becoming more frequent, and this case is important for affordable housing developers because it affirms the integrity of the Chapter 40B safe harbor regulations and keeps the applicable time frames specific and concrete, as opposed to being a moving target if the ZBA position had prevailed.

Green Villa is now before the ZBA for substantive hearings on the merits of the project. 

Discussing Claims: Identifying, Avoiding & Managing (Video)

 

Understanding Ineligibility Risks for Condominium Projects Under Freddie Mac Guidelines

 Troy Tanzer

As lenders, developers, condominium trustees, and unit owners navigate today’s evolving lending landscape, one often-overlooked

concern is whether a condominium project will qualify for conventional financing supported by Freddie Mac or Fannie Mae. These government-sponsored enterprises (GSEs) do not make loans directly to homebuyers. GSEs purchase loans from lenders to replenish the lenders’ supply of capital so that they can make mortgage loans to other borrowers. In doing so, GSEs impose a set of stringent eligibility requirements. If a project fails to meet them, financing for buyers may be restricted or altogether unavailable, thereby diminishing marketability and property value.

 This article provides an overview of the types of condominium projects that are ineligible for sale to Freddie Mac, based on the criteria set forth in Section 5701.3 of Freddie Mac’s Single-Family Seller/Servicer Guide. While similar restrictions apply under Fannie Mae’s standards, our focus here is on Freddie Mac’s specific exclusions. It is critical for condominium boards, developers, and real estate professionals to review these criteria carefully and take proactive steps to ensure continued eligibility.

 Projects Lacking Ownership Interest in the Land

 Freddie Mac disqualifies projects where unit owners do not possess either an undivided ownership interest or a leasehold interest in the land on which the project is located. This issue often arises in projects where land ownership remains with the developer or a third-party entity post-construction.

Condominium Hotels and Transient Housing

Perhaps the most restrictive and nuanced category involves so-called "condo hotels" and transient use properties. Projects licensed or operated as hotels or motels, or that include hotel-like services such as mandatory rental pooling, room service, daily cleaning, or centralized reservation desks, are typically deemed ineligible. Freddie Mac also scrutinizes projects that include blackout periods or occupancy restrictions on personal use, shared revenue agreements, or HOAs that actively manage short-term rentals and collect taxes on behalf of owners.

Even if a project is not explicitly labeled a hotel, it may still be disqualified if it bears the hallmarks of transient housing. These include vacation rental licensing, short-term rental platforms managed by the HOA, or common spaces allocated to rental operators.

 

Other Disqualifying Project Structures

A range of structural and legal arrangements also render a project ineligible, including:

 

• Multi-unit ownership on a single deed
• Excessive commercial space

*A project in which more than 35% of the total above and below grade square footage of the project (or more than 35% of the total above and below grade square footage of the building in which the project is located) is used as commercial or non-residential space.

 

• Tenancy-in-common arrangements without exclusive ownership of individual units
• Timeshare models and segmented ownership periods
• Houseboat developments or floating dwellings
• Continuing Care Retirement Communities (CCRCs)

Each of these configurations departs from the traditional condominium ownership structure in ways that Freddie Mac deems too risky or administratively unmanageable.

 

Common Element Ownership and Shared Facilities

Unit owners must collectively possess sole ownership of all common elements, including amenities and shared infrastructure. Projects in which developers retain ownership interests in the common areas, or where those areas are subject to lease arrangements, are generally disqualified. However, certain shared use arrangements between multiple residential condominium projects may be permitted if they are limited to residential use and formalized through a clear agreement governing use, maintenance, and dispute resolution.

Pending Litigation and Structural Deficiencies

If a condominium is the subject of pending litigation or alternative dispute resolution proceedings that involve safety, habitability, or structural integrity concerns, the project is not eligible. Even disputes involving the project’s developer can trigger disqualification. Minor litigation may be allowed if it is covered by insurance and poses no material financial threat to the HOA, but this exception requires thorough documentation, including attorney letters and insurance verification.

Similarly, projects in need of “Critical Repairs” are ineligible unless and until all necessary repairs have been completed and confirmed through engineering reports or equivalent documentation. The presence of an evacuation order or unsafe building conditions also renders a project immediately ineligible.

 

Excessive Investor Ownership

Freddie Mac limits the number of units that a single entity or investor may own. For projects with 21 or more units, no more than 25% may be held by a single party. Exceptions may apply to transactions that actively reduce investor concentration, subject to other financial health criteria.

 

Manufactured Housing and Mandatory Membership Fees

Projects that include manufactured homes are typically ineligible unless they comply with specialized approval processes. Additionally, projects that impose mandatory dues or membership fees for access to recreational amenities—such as clubhouses or fitness centers—must meet strict criteria. Specifically, the amenities must be owned solely by the HOA and exclusively available to its members.

 

Key Takeaways for Developers and Condominium Associations

Freddie Mac’s exclusion criteria are extensive, but they are not insurmountable. In many cases, projects can be structured—or restructured—through amendment of governing documents or operational adjustments to maintain eligibility. Boards should conduct a periodic eligibility audit, especially before major renovations, leasing policy changes, or litigation.

An associate in the real estate and litigation departments of the Quincy and Boston-based firm of Moriarty Bielan & Malloy LLC, Troy handles a variety of real estate related matters, with an emphasis on zoning and land use.  Troy’s email address is ttanzer@mbmllc.com.

Recent Developments in Chapter 40B: Housing Appeals Committee & Case Law Update and Summary of Regulatory and Policy ...