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Massachusetts Promotes Residential Development on Surplus State Property

           Abigail George

 

In August 2024, Governor Healey signed the Affordable Homes Act (“the Act”) into law. The Act is a historic piece of

legislation, authorizing $5.16 billion in spending over five years alongside nearly 50 policy initiatives to encourage housing production. This article touches on one.  The Act focuses on increased housing supply for low to moderate-income residents. Sections 121 and 122 address “Surplus Real Property for Residential Development,” addressing the development of state-owned land for housing.

 

Alongside the Act, the Healey-Driscoll administration has created a state Land for Homes Initiative. It focuses on increasing the Commonwealth’s housing supply by making surplus state land available for residential development under relaxed conditions. As part of this initiative, the state provides a database of upcoming, planned, and available land parcels suitable for development. Currently, the initiative has made available more than 725 acres for development, representing an anticipated 5,435 housing units. The database can be accessed at https://www.mass.gov/info-details/state-land-for-homes.

 

Last March, the Executive Office of Housing and Livable Communities (EOHLC) promulgated draft regulations for 760 CMR 77.00, specifying the conditions for development of this surplus land. These regulations were finalized and became effective on July 17, 2026.  In essence, 760 CMR 77.00 provides authority to the state Division of Capital Asset Management & Maintenance (DCAMM) and host municipalities to impose conditions on new developments while limiting excessive requirements that slow the pace of development.

 

Most significantly, municipalities are not allowed to impose conditions which will result in an effective density of fewer than four dwelling units per acre. The regulations are summarized below.

 

Surplus Real Property.  760 CMR 77.00 allows for as-of-right Residential Development of “Surplus Real Property” conveyed by the DCAMM Commissioner (Commissioner).  As defined in Section 121(a) of the AHA, Surplus Real Property includes property that is either (i) real property of the Commonwealth determined by the Commissioner to be surplus or (ii) real property of a public agency determined by the agency itself to be surplus.

 

Also as defined there, a public agency is “department, agency, board, commission, authority, or other instrumentality of the Commonwealth,” excluding “cities, town or counties or any boards, committees, commissions or other instrumentalities thereof.”

 

Effective Density.  Residential Developments on Surplus Property must achieve a minimum of four (4) housing units per acre. In calculating the effective density, all parties must include the entire Lot Area without exclusion. This includes open bodies of water and any public or private rights in the Lot Area.  Protected use accessory dwelling units (i.e., developed pursuant to M.G.L. c. 40A, §6 and 760 CMR 71.00) cannot count toward the number of units in a Lot Area. Additionally, effective density calculations cannot be rounded up to achieve the minimum.

 

Commissioner-Imposed Conditions. The DCAMM Commissioner may impose additional conditions on the development of Surplus Real Property for Housing Purposes at the time of Conveyance. These include:

 

·       Reuse Restrictions: Any use, restriction, or encumbrance as defined by the Commissioner (e.g. affordability requirements for housing developments, mandated clustering to preserve portions of parcel for recreation or conservation area, etc.).

 

·       Land Disposition Agreement: Agreement between the Commissioner and the Developer, through which parties may agree to additional conditions.

 

Municipality-Imposed “Reasonable Regulations.”  Municipalities may, but are not required, to impose “reasonable regulations” on Residential Developments of Surplus Real Property. “Reasonable regulations” are those which (i) pertain to the bulk and height of structures, lot area, setbacks, open space coverage, building coverage, and site plan review and (ii) meet the following conditions:

 

a.     Do not “directly or indirectly” prevent development within the Effective Density requirement or otherwise make such development “physically or financially infeasible;”

b.    Do not explicitly or effectively prohibit, or require, any particular Residential Development Type or bedroom count;

c.     Do not conflict with or supersede any applicable federal law;

d.    Do not impose more than the minimum requirements established by state or federal law; and

e.     Do not impose any additional local or regional Municipality law, unless required by the Conveyance.

 

As part of these reasonable regulations, municipalities may:

a.     Enforce the terms of a Development Agreement, so long as it does not conflict with the terms of the Conveyance;

b.    Impose regulations “necessary to ensure the Developer’s compliance with the terms of the Conveyance;”

c.     Allow additional non-residential uses on Surplus Real Property, such as mixed-use development, and provide incentives to encourage such use;

d.    Impose the minimum requirements established by any state or federal law; and

e.     Conduct Site Plan Review, limited to (i) aspects of a Residential Development that “relate directly to the public’s safety, health, and welfare” and (ii) additional aspects that are otherwise provided for a Reuse Restriction, an Agreement, or voluntarily agreed to by the Developer. Site Plan Review shall neither “unreasonably delay” nor impose “infeasible or impractical conditions” on Residential Developments.

 

Municipalities may not:

a.     Enforce general Municipal Regulations on Surplus Real Property where they are “inconsistent or in conflict with or exceed the scope of land-use controls described” in the AHA or 760 CMR 77.00;

b.    Require additional non-residential uses on Surplus Real Property; or

c.     Enforce a maximum density or dwelling unit cap, unless provided by the Conveyance.

 

Abigail George is a law clerk at McGregor Law Group and a recent graduate of the Boston University School of Law.

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Mortgage Pre-Approval Letter Leaves Lender Exposed to Claims from Seller

 Sean B. Cullen

Selling a home—especially when preparing to move out of state—can be extremely stressful and requires trust and coordination among multiple parties

and institutions. Before accepting an offer and signing a purchase and sale agreement, sellers often require a prospective buyer to provide a mortgage pre-approval letter from a reputable lender or bank. But what liability, if any, does a lender or bank have to a seller for representations made in a mortgage pre-approval letter? The Business Litigation Session of the Suffolk Superior Court recently decided that a mortgage lender may be liable to a seller for allegedly misrepresenting in its mortgage pre-approval letter that it reviewed the prospective buyer’s credit profile and verified his income and assets. The case name is: Bokhari v. North Easton Savings Bank, Suffolk Superior Court, Case No. 2484CV01291. 

Plaintiffs in the case listed their Massachusetts home for sale with the intention of moving to a new home in West Virginia. Plaintiffs received from a prospective buyer an offer to purchase the property for $2.05 million but plaintiffs required a pre-approval letter for a $1.64 million mortgage or eighty percent of the proposed purchase price before moving forward with the sale transaction.

The prospective buyer provided a pre-approval letter from the defendant bank, which stated that the defendant bank reviewed the prospective buyer’s credit profile and verified his income and assets. Plaintiffs, allegedly relying upon the mortgage pre-approval letter, accepted the offer and entered into a purchase and sale agreement with the prospective buyer. Thereafter, plaintiffs took the property off the market.

Eleven days later, the defendant bank rejected the prospective purchaser’s mortgage application, causing the sale to be cancelled. Plaintiffs were then unable to sell the property, claiming that the cancelled sale, coupled with years long litigation against the prospective buyer, created a perception that there was something wrong with the property and ruined its marketability. Plaintiffs also claimed that the collapsed sale prevented them from investing the sale proceeds and ultimately forced them to sell their home in West Virginia.

Plaintiffs sued the defendant bank for fraud, negligent misrepresentation, and violation of the Massachusetts Consumer Protection Act, G.L. c. 93A (“Chapter 93A”). Plaintiffs allegedly learned during the litigation that the defendant bank issued the mortgage pre-approval letter without reviewing the prospective buyer’s credit profile or verifying his income and assets.

The bank defended against the suit by arguing that the plaintiffs’ alleged injuries were not a reasonably foreseeable risk arising from a mortgage pre-approval letter. The Court disagreed, concluding that a reasonable jury could find that the plaintiffs, as sellers, were among those that the defendant bank had reason to expect would rely on its statements. The Court concluded that the plaintiffs’ claims both flowed from the defendant bank’s alleged fraud and were a reasonably foreseeable risk of the bank’s alleged false representation. The Court also rejected the defendant bank’s argument that it was shielded from liability under Chapter 93A because it had no business relationship with the plaintiffs. The decision is noteworthy and should serve as a warning to the lending industry in terms of the representations lenders make during the mortgage pre-approval process.

Sean Cullen practices with the Boston firm of Rudolph Friedman LLP.  He possess a wide range of experience in general civil and business litigation, including representing homeowners and contractors in matters involving G.L. c. 142A and. G.L. c. 93A, as well as enforcing and dissolving mechanic’s liens under G.L. c. 254. Sean can be contacted at scullen@rflawyers.com

Landlord’s Insurance Protects Against Lost Income and Other Damages

 George Georgountzos

In the residential landlord-tenant context, many leases call upon the tenant to obtain insurance to cover against the loss of the tenant’s personal property.

The landlord typically has general liability insurance to cover against casualties like fire, a falling tree, burglary or water damage, but that coverage only protects the building and not the building’s contents. This general insurance covers damages to the physical structure of the building, its equipment, and to personal injury resulting from a casualty, but not the tenant’s losses. 

Landlord’s often overlook—or are simply unaware—that additional coverage exists to protect against damage to the landlord’s personal property and lost income resulting from a casualty. For example, if an event renders a home uninhabitable, the tenant would have the right to cancel the lease without penalty and find alternative housing, or the landlord maybe obligated to pay for such alternative housing. The landlord may also have provided a furnished apartment. Lost rent, the cost of providing the tenant with alternative housing, or damage to the landlord’s furniture is not covered by the general liability policy. 

Landlord’s insurance, separate from the general liability insurance, covers such losses. If it takes a long time to rebuild a home, landlord’s insurance will cover the lost rent that otherwise would have been generated but for the damage. Such coverage would also replace damaged furniture owned by the landlord. This landlord’s insurance coverage does not cover costs associated with a tenant who simply stops paying rent; there needs to be an event that renders the leased premises damaged or uninhabitable. Many new landlords are unaware of this type of coverage, but even long-time landlords may be surprised to learn that they can protect against lost income in the event of a casualty by obtaining landlord’s insurance. 

Landlords should contact their insurance carrier to determine the cost of landlord’s insurance coverage. It may be a small price to pay to ensure steady income in the event of a casualty that renders a tenant unable to occupy the rented space. 

A co-chair of REBA’s Residential Landlord/Tenant Section and an associate at the firm of Rudolph Freidman LLP, George has an active litigation practice representing landlords in disputes with tenants, bringing actions or defending against claims in business disputes, and representing buyers and sellers of commercial enterprises such as restaurants, shops and professional offices. George can be contacted by email at ggeorgountzos@rflawyers.com.