MEMBERS URGED TO CONTACT LEGISLATORS
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 https://malegislature.gov/People/Search.
Click here to visit the REBA Legislation Committee Page
