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USA Statutes : massachusetts
Title : PART II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
Chapter : TITLE I. TITLE TO REAL PROPERTY
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Chapter 183: Section 1. Acts or ceremonies necessary for conveyance Section 1. A deed executed and delivered by the person, or by the attorney of the person, having authority therefor, shall, subject to the limitations of section four, be sufficient, without any other act or ceremony, to convey land.
Chapter 183: Section 10. Warranty deed Section 10. A deed in substance following the form entitled “Warranty Deed” shall when duly executed have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor, for himself, his heirs, executors, administrators and successors, with the grantee, his heirs, successors and assigns, that, at the time of the delivery of such deed, (1) he was lawfully seized in fee simple of the granted premises, (2) that the granted premises were free from all encumbrances, (3) that he had good right to sell and convey the same to the grantee and his heirs and assigns, and (4) that he will, and his heirs, executors and administrators shall, warrant and defend the same to the grantee and his heirs and assigns against the lawful claims and demands of all persons.
Chapter 183: Section 11. Quitclaim deed Section 11. A deed in substance following the form entitled “Quitclaim Deed” shall when duly executed have the force and effect of a deed in fee simple to the grantee, his heirs and assigns, to his and their own use, with covenants on the part of the grantor, for himself, his heirs, executors, administrators and successors, with the grantee, his heirs, successors and assigns, that at the time of the delivery of such deed the premises were free from all encumbrances made by him, and that he will, and his heirs, executors and administrators shall, warrant and defend the same to the grantee and his heirs and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other.
Chapter 183: Section 12. “Grant” as word of conveyance Section 12. In a conveyance of real estate the word “grant” shall be a sufficient word of conveyance without the use of the words “give, bargain, sell and convey”, and no covenant shall be implied from the use of the word “grant”.
Chapter 183: Section 13. Words of inheritance Section 13. In a conveyance or reservation of real estate the terms “heirs”, “assigns” or other technical words of inheritance shall not be necessary to convey or reserve an estate in fee. A deed or reservation of real estate shall be construed to convey or reserve an estate in fee simple, unless a different intention clearly appears in the deed.
Chapter 183: Section 14. Uses and trusts Section 14. When a conveyance or devise of real estate is made to a grantee or devisee to a use intended to be executed by the statute of uses, the word “use” shall be employed in declaring the use; and provisions introduced by the words “in trust”, or other expressions that might otherwise create uses, shall be deemed to create trusts and not uses. If no use is declared in a conveyance or devise of real estate, the same shall take effect as if it were expressed to be for the use of the grantee or devisee.
Chapter 183: Section 15. Easements, privileges and appurtenances belonging to granted estate Section 15. In a conveyance of real estate all rights, easements, privileges and appurtenances belonging to the granted estate shall be included in the conveyance, unless the contrary shall be stated in the deed, and it shall be unnecessary to enumerate or mention them either generally or specifically.
Chapter 183: Section 16. “Warranty covenants” Section 16. In a conveyance of real estate the words “warranty covenants” shall have the full force, meaning and effect of the following words: “The grantor, for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that he has good right to sell and convey the same, and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons”.
Chapter 183: Section 17. “Quitclaim covenants” or “limited covenants” Section 17. In a conveyance of real estate the words “quitclaim covenants” or the words “limited covenants” shall have the full force, meaning and effect of the following words: “The grantor, for himself, his heirs, executors, administrators and successors, covenants with the grantee, his heirs, successors and assigns, that the granted premises are free from all encumbrances made by the grantor, and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the grantee and his heirs, successors and assigns forever against the lawful claims and demands of all persons claiming by, through or under the grantor, but against none other”.
Chapter 183: Section 18. Mortgage deeds Section 18. A deed in substance following the form entitled “Mortgage Deed” shall when duly executed have the force and effect of a mortgage deed to the use of the mortgagee and his heirs and assigns with mortgage covenants and upon the statutory condition and with the statutory power of sale, as defined in the three following sections, to secure the payment of the money or the performance of any obligation therein specified. The parties may insert in such mortgage any other lawful agreement or condition.
Chapter 183: Section 19. “Mortgage covenants” Section 19. In a conveyance of real estate the words “mortgage covenants” shall have the full force, meaning and effect of the following words, and shall be applied and construed accordingly: “The mortgagor, for himself, his heirs, executors, administrators and successors, covenants with the mortgagee and his heirs, successors and assigns, that he is lawfully seized in fee simple of the granted premises; that they are free from all encumbrances; that the mortgagor has good right to sell and convey the same; and that he will, and his heirs, executors, administrators and successors shall, warrant and defend the same to the mortgagee and his heirs, successors and assigns forever against the lawful claims and demands of all persons; and that the mortgagor and his heirs, successors or assigns, in case a sale shall be made under the power of sale, will, upon request, execute, acknowledge and deliver to the purchaser or purchasers a deed or deeds of release confirming such sale; and that the mortgagee and his heirs, executors, administrators, successors and assigns are appointed and constituted the attorney or attorneys irrevocable of the said mortgagor to execute and deliver to the said purchaser a full transfer of all policies of insurance on the buildings upon the land covered by the mortgage at the time of such sale”.
Chapter 183: Section 1A. Instruments not under seal Section 1A. No instrument purporting to affect an interest in land shall be void because it is not sealed or does not recite a seal.
Chapter 183: Section 2. Estate conveyed by quitclaim deed Section 2. A deed of quitclaim and release shall be sufficient to convey all the estate which could lawfully be conveyed by a deed of bargain and sale.
Chapter 183: Section 20. “Statutory condition” in mortgages Section 20. The following “condition” shall be known as the “Statutory Condition”, and may be incorporated in any mortgage by reference:(CONDITION.
)Provided, nevertheless, except as otherwise specifically stated in the mortgage, that if the mortgagor, or his heirs, executors, administrators, successors or assigns shall pay unto the mortgagee or his executors, administrators or assigns the principal and interest secured by the mortgage, and shall perform any obligation secured at the time provided in the note, mortgage or other instrument or any extension thereof, and shall perform the condition of any prior mortgage, and until such payment and performance shall pay when due and payable all taxes, charges and assessments to whomsoever and whenever laid or assessed, whether on the mortgaged premises or on any interest therein or on the debt or obligation secured thereby; shall keep the buildings on said premises insured against fire in a sum not less than the amount secured by the mortgage or as otherwise provided therein for insurance for the benefit of the mortgagee and his executors, administrators and assigns, in such form and at such insurance offices as they shall approve, and, at least two days before the expiration of any policy on said premises, shall deliver to him or them a new and sufficient policy to take the place of the one so expiring, and shall not commit or suffer any strip or waste of the mortgaged premises or any breach of any covenant contained in the mortgage or in any prior mortgage, then the mortgage deed, as also the mortgage note or notes, shall be void.
Chapter 183: Section 21. “Statutory power of sale” in mortgage Section 21. The following “power” shall be known as the “Statutory Power of Sale”, and may be incorporated in any mortgage by reference:(POWER.
)But upon any default in the performance or observance of the foregoing or other condition, the mortgagee or his executors, administrators, successors or assigns may sell the mortgaged premises or such portion thereof as may remain subject to the mortgage in case of any partial release thereof, either as a whole or in parcels, together with all improvements that may be thereon, by public auction on or near the premises then subject to the mortgage, or, if more than one parcel is then subject thereto, on or near one of said parcels, or at such place as may be designated for that purpose in the mortgage, first complying with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, and may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and such sale shall forever bar the mortgagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity.
Chapter 183: Section 22. Co-operative bank mortgage Section 22. A co-operative bank mortgage following in substance the form entitled “Co-operative Bank Mortgage” shall when duly executed have the force and effect of a mortgage deed to the use of the mortgagee and its successors and assigns, with mortgage covenants and upon the statutory co-operative bank mortgage condition and with the statutory co-operative bank power of sale, as defined in the two following sections, to secure the payment of the money or the performance of any obligation therein specified. If any buildings on the mortgaged premises shall be wholly or partly destroyed by a fire in respect to which the company or companies insuring the same shall deny liability to the insured, the mortgagee may at its option forfeit said shares, and, after applying the withdrawal value thereof to the payment of said loan, interest and fines, may assign the mortgage with the note and debt thereby secured to such company or companies upon payment by it or them of the balance then owing to the mortgagee on account of said loan; whereupon said note and mortgage shall forthwith become a note and mortgage payable on demand with interest at the rate set forth in said mortgage, payable semi-annually, the first payment of such interest to become due six months after the date of such assignment.
The parties may insert in such co-operative bank mortgage any lawful agreement or condition.
Chapter 183: Section 23. “Statutory co-operative bank mortgage condition” Section 23. The following “co-operative bank mortgage condition” shall be known as the “Statutory Co-operative Bank Mortgage Condition”, and may be incorporated in any co-operative bank mortgage by reference:(CO-OPERATIVE BANK MORTGAGE CONDITION.
)Provided, nevertheless, that if the mortgagor or his heirs, executors, administrators, successors or assigns shall pay unto the said mortgagee, its successors or assigns, at its place of business, the monthly dues, interest and premium, if any, together with all fines on payments in arrears, monthly at or before the stated meetings of said bank, until said shares shall reach their matured value, or, if the mortgagor or his heirs, executors, administrators or assigns shall otherwise sooner pay said loan unto the said mortgagee, its successors or assigns, together with the said interest and fines to the time of the next stated monthly meeting after such payment, and shall pay when due all taxes and assessments levied or assessed on the mortgaged premises, and all taxes which the said mortgagee may be required to pay as holder of this mortgage, shall keep the buildings thereon insured against fire in a sum satisfactory to and for the benefit of the said mortgagee, its successors or assigns, at such insurance office and by such insurance company as it or they shall approve, or, in default thereof, shall on demand pay to the said mortgagee, its successors or assigns all such sums as it shall reasonably pay for such taxes, assessments and insurance, with interest, and shall not commit or suffer any strip or waste of the mortgaged premises, or any breach of any covenant herein contained or in any prior mortgage, then the mortgage deed, as also the mortgage note, shall be void.
Chapter 183: Section 24. “Statutory co-operative bank power of sale” Section 24. The following “co-operative bank power” shall be known as the “Statutory Co-operative Bank Power of Sale”, and may be incorporated in any mortgage by reference:(CO-OPERATIVE BANK POWER.
)But in case of non-payment of the aforesaid monthly dues, interest or fines and premiums, if any, for more than four months after any payment thereof shall be due, or upon any other default in the performance or observance of the foregoing or other condition, the mortgagee or its successors or assigns may sell the mortgaged premises or such portion thereof as may remain subject to the mortgage in case of any partial release thereof, either as a whole or in parcels, together with all improvements that may be thereon, by public auction on or near the premises then subject to the mortgage, or, if more than one parcel is then subject thereto, on or near one of said parcels, or at such place as may be designated for that purpose in the mortgage, first complying with the terms of the mortgage and with the statutes relating to the foreclosure of mortgages by the exercise of a power of sale, and may convey the same by proper deed or deeds to the purchaser or purchasers absolutely and in fee simple; and such sale shall forever bar the mortgagor and all persons claiming under him from all right and interest in the mortgaged premises, whether at law or in equity.
Chapter 183: Section 25. Purchase by holder of mortgage at foreclosure sale Section 25. The holder of a mortgage of real estate, or any person acting in his behalf, may purchase at a foreclosure sale unless the contrary is stated in the mortgage.
Chapter 183: Section 26. Possessory interest of mortgagor Section 26. Until default in the performance or observance of the condition of a mortgage of real estate, the mortgagor and his heirs and assigns may hold and enjoy the mortgaged premises and receive the rents and profits thereof, unless otherwise stated in the mortgage.
Chapter 183: Section 27. Disposition of proceeds of foreclosure sale Section 27. The holder of a mortgage of real estate, or his representatives, out of the money arising from a sale under the power of sale shall be entitled to retain all sums then secured by the mortgage, whether then or thereafter payable, including all costs, charges or expenses incurred or sustained by him or them by reason of any default in the performance or observance of the condition of the mortgage or of any prior mortgage, rendering the surplus, if any, to the mortgagor, or his heirs, successors or assigns, unless otherwise stated in the mortgage. No person other than the holder of the mortgage shall be bound to see to the application of the money arising from such sale.
Chapter 183: Section 28. Assignment of mortgage; words of transfer Section 28. In an assignment of a mortgage of real estate the word “assign” shall be a sufficient word to transfer the mortgage, without the words “transfer and set over”.
Chapter 183: Section 28A. Subsequent loans from mortgagee; priority Section 28A. Any sum or sums which shall be loaned by the mortgagee to the mortgagor at any time after the recording of any mortgage of real estate, to be expended for paying for repairs, improvements, lead paint removal or replacements to, fuel for, or for taxes or other municipal liens, charges or assessments or condominium common expense assessment, including legal fees on, the mortgaged premises, shall be equally secured with and have the same priority as the original indebtedness, to the extent that the aggregate amount outstanding at any one time when added to the balance due on the original indebtedness, shall not exceed the amount originally secured by the mortgage. The provisions of this section shall apply to all forms of mortgages on real estate.
No action under this section shall affect the rights of the holder of any encumbrance which is subject to that of the mortgagee granting the accommodation for the purpose of paying for repairs or replacements to, or for taxes or other municipal liens, charges or assessments on, the mortgaged premises, and recorded prior to September first, nineteen hundred and forty-six, unless his written assent shall be obtained, nor shall any such action affect the rights of an original borrower unless his written assent shall be obtained. In cases where the accommodation is for the purpose of making improvements to the mortgaged premises no action hereunder shall affect the rights of the holder of any encumbrance which is subject to that of the mortgagee granting said accommodation and recorded prior to September first, nineteen hundred and fifty-six, unless his written assent shall be obtained, nor shall any such action affect the rights of an original borrower unless his written assent shall be obtained.
Chapter 183: Section 28B. Open-end mortgage; subsequent loans from mortgagee Section 28B. Any sum which shall be lent by the mortgagee to the mortgagor at any time after the recording of an open-end mortgage that secures such sum shall be equally secured with and have the same priority as would any such sum disbursed as of the time of the recording of such mortgage. As used in this section an open-end mortgage shall mean a mortgage of real estate the terms of which provide that it secures a sum lent by the mortgagee to the mortgagor from time to time pursuant to an open-end credit plan as defined in section 1 of chapter 140D, but the interest rate on any such loan and any delinquency charge thereon on any payment not paid in full within 15 days of its due date shall be governed by section 114B of chapter 140. In the event of any conflict between this section and chapter two hundred and fifty-four or any other provision of law, the provisions of this section shall control. Notwithstanding the foregoing, the priority afforded under this section shall apply only to (i) the principal sum so loaned, provided, however, that in the case of an open-end mortgage recorded after the effective date of this section, such priority shall apply only to so much of such principal sum as does not exceed the amount specified in such mortgage as the maximum sum intended to be secured thereby; (ii) interest on the principal amount to which such priority applies; and (iii) all charges and fees other than principal and interest that are secured by such mortgage. In the event that an open-end mortgage is amended to increase the amount intended to be secured thereby, such mortgage shall be deemed to have been recorded, with respect only to the amount of such increase, at the time such amendment is recorded.
At any time after the termination of the authority of all persons to borrow sums pursuant to an open-end credit plan secured by an open-end mortgage, the holder of such mortgage shall, within ten business days of the request of any person with an interest in the mortgaged real estate, furnish to such person an executed and acknowledged written notice stating that such authority has terminated and stating the amount of the loans secured by such mortgage that remain outstanding on the date of such notice, which notice may be recorded.
Chapter 183: Section 28C. Refinancing in the borrower’s interest Section 28C. (a) A lender shall not knowingly make a home loan if the home loan pays off all or part of an existing home loan that was consummated within the prior 60 months or other debt of the borrower, unless the refinancing is in the borrower’s interest. The “borrower’s interest” standard shall be narrowly construed, and the burden is upon the lender to determine and to demonstrate that the refinancing is in the borrower’s interest.
Factors to be considered in determining if the refinancing is in the borrower’s interest include but are not limited to:—(1) the borrower’s new monthly payment is lower than the total of all monthly obligations being financed, taking into account the costs and fees;(2) there is a change in the amortization period of the new loan;(3) the borrower receives cash in excess of the costs and fees of refinancing;(4) the borrower’s note rate of interest is reduced;(5) there is a change from an adjustable to a fixed rate loan, taking into account costs and fees; or(6) the refinancing is necessary to respond to a bona fide personal need or an order of a court of competent jurisdiction.
(b) Notwithstanding any provision to the contrary contained in this chapter regarding costs and attorneys’ fees, in any action instituted by a borrower who alleges that the defendant violated subsection (a), the borrower shall not be entitled to costs and attorneys’ fees if the presiding judge, in the judge’s discretion, finds that, before the institution of the action by the borrower, the lender made a reasonable offer to cure and that offer was rejected by the borrower.
(c) The commissioner of banks may prescribe from time to time such rules and regulations as may be necessary or proper in carrying out this section. Such rules and regulations may contain such factors, classifications, differentiations or other provisions, and may provide for such adjustments and exceptions for any class of transactions as, in the judgment of the commissioner, are necessary or proper to carry out this section, to prevent circumvention or evasion thereof or to facilitate compliance therewith.
Chapter 183: Section 29. Necessity of acknowledgment; recordation Section 29. No deed shall be recorded unless a certificate of its acknowledgment or of the proof of its due execution, made as hereinafter provided, is endorsed upon or annexed to it, and such certificate shall be recorded at length with the deed to which it relates; but this section shall not apply to conveyances from the United States.
Chapter 183: Section 3. Estate created without instrument in writing Section 3. An estate or interest in land created without an instrument in writing signed by the grantor or by his attorney shall have the force and effect of an estate at will only, and no estate or interest in land shall be assigned, granted or surrendered unless by such writing or by operation of law.
Chapter 183: Section 30. Method of making acknowledgment Section 30. The acknowledgment of a deed or other written instrument required to be acknowledged shall be by one or more of the grantors or by the attorney executing it. The officer before whom the acknowledgment is made shall endorse upon or annex to the instrument a certificate thereof. Such acknowledgment may be made—(a) If within the commonwealth, before a justice of the peace or notary public.
(b) If without the commonwealth, in any state, territory, district or dependency of the United States, before a justice of the peace, notary public, magistrate or commissioner appointed therefor by the governor of this commonwealth, or, if a certificate of authority in the form prescribed by section thirty-three is attached thereto, before any other officer therein authorized to take acknowledgments of deeds.
(c) If without the United States or any dependency thereof, before a justice of the peace, notary, magistrate or commissioner as above provided, or before an ambassador, minister, consul, vice consul, charge d’affaires or consular officer or agent of the United States accredited to the country where the acknowledgment is made; if made before an ambassador or other official of the United States, it shall be certified by him under his seal of office.
Chapter 183: Section 31. Acknowledgment of married woman Section 31. The acknowledgment by a married woman may be taken in the same form as if she were sole, and without any examination separate and apart from her husband.
Chapter 183: Section 32. Letters of attorney; applicability of law Section 32. The law relative to the acknowledgment and recording of deeds shall apply to letters of attorney for the conveyance of real estate.
Chapter 183: Section 33. Certificates of authority Section 33. Whenever, under clause (b) of section thirty or under section forty-one, a certificate of authority is required to be attached, there shall be subjoined or attached to the certificate of proof or acknowledgment a certificate of the secretary of state of the state where the officer taking the acknowledgment resides, under the seal of such state, or a certificate of the clerk of a court of record of such state in the county where said officer resides or where he took such proof or acknowledgment, under the seal of the court, stating that said officer was, at the time of taking such proof or acknowledgment, duly authorized thereto in said state, and that said secretary of state or clerk of court is well acquainted with his handwriting and verily believes the signature affixed to such certificate of proof or acknowledgment is genuine.
Chapter 183: Section 34. Proof of execution of deed by testimony of subscribing witness Section 34. If the grantor dies or removes from the commonwealth without having acknowledged his deed, the due execution thereof may be proved before any court of record in this commonwealth by the testimony of a subscribing witness thereto.
Chapter 183: Section 35. Proof of execution by proving handwriting Section 35. If all the subscribing witnesses to the deed are also dead or out of the commonwealth, the due execution thereof may be proved before such court by proving the handwriting of the grantor and of a subscribing witness.
Chapter 183: Section 36. Refusal of grantor to acknowledge; proof of execution by testimony of subscribing witness Section 36. If a grantor refuses to acknowledge his deed, the grantee or any person who claims under him may apply to a court of record in the county where the land lies or where the grantor or a subscribing witness to the deed resides, and such court shall thereupon issue a summons to the grantor to appear at a certain time and place to hear the testimony of the subscribing witnesses. Such summons, with a copy of the deed annexed, shall be served seven days at least before the time therein assigned for proving the deed, and at such hearing its due execution may be proved by the testimony of one or more of the subscribing witnesses.
Chapter 183: Section 37. Refusal of grantor to acknowledge; proof of execution by proving handwriting Section 37. If a grantor refuses to acknowledge his deed and the subscribing witnesses thereto are all dead or out of the commonwealth, its execution may be proved before any court of record in this commonwealth by proving the handwriting of the grantor and of a subscribing witness, the court first summoning the grantor for the purpose and in the manner provided in the preceding section.
Chapter 183: Section 38. Recording of unacknowledged deed; effect Section 38. A person interested in a deed which has not been acknowledged may, before or during proceedings before a court for proof of its execution, file in the proper registry of deeds a copy thereof, compared with the original by the register; and the filing of such copy shall for thirty days thereafter have the same effect as the recording of the deed, if the deed is within that time duly proved and recorded; or if, at the expiration of said thirty days, such proceedings are pending, the effect of filing such copy shall continue until the expiration of seven days after the termination of such proceedings.
Chapter 183: Section 39. Proof of execution of deed; necessity of subscribing witness Section 39. The execution of a deed shall not be proved in the manner before provided unless it has at least one subscribing witness.
Chapter 183: Section 4. Effect of recordation or actual notice of deeds or leases, or of assignments of rents or profits Section 4. A conveyance of an estate in fee simple, fee tail or for life, or a lease for more than seven years from the making thereof, or an assignment of rents or profits from an estate or lease, shall not be valid as against any person, except the grantor or lessor, his heirs and devisees and persons having actual notice of it, unless it, or an office copy as provided in section thirteen of chapter thirty-six, or, with respect to such a lease or an assignment of rents or profits, a notice of lease or a notice of assignment of rents or profits, as hereinafter defined, is recorded in the registry of deeds for the county or district in which the land to which it relates lies. A “notice of lease”, as used in this section, shall mean an instrument in writing executed by all persons who are parties to the lease of which notice is given and shall contain the following information with reference to such lease:—the date of execution thereof and a description, in the form contained in such lease, of the premises demised, and the term of such lease, with the date of commencement of such term and all rights of extension or renewal. A “notice of assignment of rents or profits”, as used in this section, shall mean an instrument in writing executed by the assignor and containing the following information:— a description of the premises, the rent or profits of which have been assigned, adequate to identify the premises, the name of assignee, and the rents and profits which have been assigned. A provision in a recorded mortgage assigning or conditionally assigning rents or profits or obligating the mortgagor to assign or conditionally assign existing or future rents or profits shall constitute a “notice of assignment of rents or profits”.
Chapter 183: Section 40. Certificate of proof of execution Section 40. A certificate of proof of the execution of a deed shall be endorsed upon it or annexed thereto by the clerk or register of the court or by the judge before whom such proof is made, and the certificate shall state whether the grantor was present at the hearing.
Chapter 183: Section 41. Proof of deed made outside commonwealth Section 41. The proof of a deed or other instrument, if made without the commonwealth in some state, territory, district or dependency of the United States, may be made before any of the persons enumerated in clause (b) of section thirty; provided, however, that a certificate of authority as provided in section thirty-three shall be attached thereto; if without the United States or any dependency thereof, such proof may be made before any of the persons enumerated in clause (c) of said section thirty.
Chapter 183: Section 42. Forms for acknowledgments and certificates of authority Section 42. The forms set forth in the appendix to this chapter for taking acknowledgments to deeds and other instruments and for certifying the authority of officers taking proofs or acknowledgments may be used; but this shall not prevent the use of any other forms heretofore lawfully used.
Chapter 183: Section 43. Vesting of title or interest by operation of decree in equity Section 43. Whenever a final decree in equity shall be made by the supreme judicial, superior, probate or land court directing that a deed, conveyance or release of any real estate or interest therein shall be made, and the party directed to make such deed, conveyance or release does not duly execute it within the time specified in the decree, the decree itself shall operate to vest title to the real estate or interest in the party entitled thereto by the decree as fully and completely as if such deed, conveyance or release had duly been executed by the party directed to make it.
Chapter 183: Section 44. Effect of recording or registration of copy of decree Section 44. The recording or registration of a duly certified copy of such decree, attested by the clerk, assistant clerk, register or assistant register, recorder or deputy recorder, as the case may be, of the court where made, in the registry of deeds of the district where said real estate is situated, shall have the same force and effect as if a duly executed deed, conveyance or release had so been recorded or registered.
Chapter 183: Section 45. Conveyance in fee by person seized as tenant in tail Section 45. A person seized of land as tenant in tail may convey such land in fee simple by a deed in common form, as if he were seized thereof in fee simple; and such conveyance shall bar the estate tail and all remainders and reversions expectant thereon.
Chapter 183: Section 46. Conveyance in fee by life tenant and vested remainderman in tail Section 46. If land is held by one person for life with a vested remainder in tail in another, the tenant for life and the remainderman may convey such land in fee simple by their deed or deeds in common form, as if the remainder had been limited in fee simple; and such deed or deeds shall bar the estate tail and all remainders and reversions expectant thereon.
Chapter 183: Section 47. Barring of equitable estates tail Section 47. Equitable estates tail, in possession or remainder, and all remainders and reversions expectant thereon, may be barred in the same manner as legal estates tail and the remainders and reversions expectant thereon.
Chapter 183: Section 48. Conveyance of equitable fee; entitlement to conveyance of outstanding legal estate Section 48. The person to whom an equitable fee simple is conveyed pursuant to the preceding section shall, upon request therefor, be entitled to a conveyance of the outstanding legal estate from the person in whom such legal estate is then or thereafter vested in trust.
Chapter 183: Section 49. Sale and conveyance or mortgage by trustee appointed by probate court Section 49. If land is subject to a vested or contingent remainder, executory devise, conditional limitation, reversion or power of appointment, the probate court for the county where such land is situated may, upon the petition of any person having an estate or interest therein, either present or future, vested or contingent, and after notice and other proceedings as hereinafter required, appoint one or more trustees and authorize him or them to sell and convey such land or any part thereof in fee simple, if such sale and conveyance appears to the court to be necessary or expedient, or to mortgage the same for such an amount, on such terms and for such purposes as may seem to the court judicious or expedient; and such conveyance or mortgage shall be valid and binding upon all parties.
Chapter 183: Section 5. Recording of instruments; evidence of delivery Section 5. The record of a deed, lease, power of attorney or other instrument, duly acknowledged or proved as provided in this chapter, and purporting to affect the title to land, shall be conclusive evidence of the delivery of such instrument, in favor of purchasers for value without notice claiming thereunder.
Chapter 183: Section 50. Notice of petition to appoint trustee; appointment of next friend Section 50. Notice of a petition under the preceding section shall be given in such manner as the court may order to all persons who are or who may become interested in the land to which the petition relates, and to all persons whose issue, not in being, may become interested therein; and the court shall of its own motion in every case appoint a suitable person to appear and act therein as the next friend of all minors, persons not ascertained, and persons not in being, who are or may become interested in such land; and provisions of sections thirty-four and thirty-five of chapter two hundred and one consistent herewith shall apply in the case of such appointment.
Chapter 183: Section 51. Bond of trustee; proceeds of sale or mortgage Section 51. A trustee appointed under section forty-nine shall give bond in such form and for such amount as the court appointing him may order, and he shall receive and hold, invest or apply the proceeds of any sale or mortgage made by him for the benefit of the persons who would have been entitled to the land if such sale or mortgage had not been made, and the probate court of any county where any part of such land is situated shall have jurisdiction of all matters thereafter arising relative to such trust.
Chapter 183: Section 52. Sale of land charged with payment of money; petition; decree; bond of trustee Section 52. If land is charged with the payment of money, either in fixed amounts or in annuities for a life or lives or for years, the supreme judicial or probate court for the county where any part of such land is situated may upon the petition of the persons holding title thereto subject to the charge of such payment, and after notice and a hearing, authorize them to sell and convey by private sale or public auction the whole or any portion of such land in fee simple and free from such charges, whether present or future, certain or contingent; and it shall in such case provide by its decree for the payment of the amounts charged upon such land by placing the whole or any portion of the proceeds of the sale thereof in the hands of a trustee appointed by it, by the purchase of annuities for the persons entitled to receive the amounts so charged, or by any other means which shall be considered just and reasonable. Such trustees shall give bond in such sum as the court may order, shall, under the direction of the court, manage and account for the trust fund and shall distribute the income thereof according to its decree.
Chapter 183: Section 53. Effect of deed, bond or other instrument made in defeasance Section 53. If a deed purports to contain an absolute conveyance of land, but is made defeasible by a deed, bond or other instrument, the original deed shall not be thereby affected, as against any person other than the maker of the instrument of defeasance and his heirs and devisees and persons having actual notice of it, unless such instrument is recorded in the registry of deeds for the county or district where the land to which it relates is situated.
Chapter 183: Section 54. Definitions; method of discharge Section 54. For the purposes of sections fifty-four to fifty-five, inclusive, the following words, unless the context otherwise requires, shall have the following meanings:—“Discharge”, a deed of release or written acknowledgement of payment or satisfaction of the debt or obligation secured by a mortgage or the conditions therein contained, or, in the case of a partial release issued by a mortgage servicer or noteholder pursuant to this section or section fifty-four C, a partial release evidencing that a payment has been made pursuant to the debt or obligation secured by such mortgage or the conditions therein contained.
“Federally related mortgage loan”, a federally related mortgage loan as defined in the Real Estate Settlement Procedures Act of 1974, 12 USC section 2602.
“Mortgagee” or “mortgage holder”, the holder of record of a mortgage deed; provided, however, that if the mortgage deed has been assigned of record, mortgagee or mortgage holder shall mean the last person to whom such mortgage deed has been assigned of record.
“Mortgage servicer”, the last person servicing a federally related mortgage loan who has provided a payoff statement with respect to said federally related mortgage loan, whether or not appearing of record as the mortgagee or the mortgage holder.
“Note holder”, the holder of a note evidencing a debt or any other obligation secured by a mortgage; provided, however, that if the note holder is not the holder of record of the mortgage deed, said note shall contain the appropriate endorsements evidencing the transfer of ownership thereof to said holder.
“Payoff statement”, a statement, oral or in writing, issued at the request of the mortgagor or an authorized person on his behalf by a mortgagee, mortgage holder, mortgage servicer or note holder indicating the amount of the unpaid balance of the mortgage loan, including principal, interest and other charges assessed pursuant to such mortgage loan which may include the interest on a per diem basis with respect to the unpaid principal balance of the mortgage.
“Person”, an individual, corporation, business trust, testamentary trust, partnership, association, joint venture, government, governmental subdivision or agency or other legal or commercial entity.
“Recordation” or “recorded”, a recording with the registry of deeds in accordance with chapter one hundred and eighty-three, or registration with the registry district of the land court in accordance with chapter one hundred and eighty-five.
“Servicing”, the receipt by a mortgage servicer of scheduled periodic payments and payoff monies from a mortgagor on a federally related mortgage loan, and the allocation of such payments to principal, interest, municipal real estate taxes and other appropriate assessments and charges, all pursuant to the terms of the loan.
One of two or more joint holders of a mortgage may discharge it by a deed of release duly acknowledged and recorded. A mortgage may also be discharged by a written acknowledgement of payment or satisfaction of the debt thereby secured, or of the conditions therein contained, signed and sealed by the mortgagee, mortgage holder, mortgage servicer or note holder, his executor, administrator, successor or assignee. Such instrument shall have the same effect as a deed of release, shall be valid if executed by one of two or more joint holders of a mortgage, and may be recorded when duly acknowledged or on proof of its execution in accordance with sections thirty-four to forty-one, inclusive. The recordation of a duly executed and acknowledged deed of release or written acknowledgement of payment or satisfaction as provided herein shall be conclusive evidence that the mortgage has been discharged notwithstanding the fact that the party signing such instrument may have assigned the note or other evidence of debt to another party, unless such assignment had been duly recorded prior to the instrument discharging the mortgage. Such deed of release or written acknowledgement of payment or satisfaction shall contain the street address of the mortgaged property, the volume and page number or document number of the mortgage and the name of the mortgagor; provided, however, that the failure to include such information shall not affect the validity of the instrument. The provisions of this section apply notwithstanding the provisions of section three-one hundred and sixteen of chapter one hundred and six.
Chapter 183: Section 54A. Defective discharges of mortgages held by entirety; effect Section 54A. After the expiration of a period of ten years from the recording of a discharge or release of a mortgage held by husband and wife as tenants by the entirety and signed by only the husband or the wife, no steps shall be taken by action, entry or otherwise to foreclose or enforce such mortgage or the note or notes secured thereby, unless within such period the spouse who did not sign such discharge or release has recorded in the registry of deeds for the county or district where the mortgage is recorded a notice identifying the mortgage and the book and page of its recording and stating that rights of a tenant by the entirety may be claimed in the mortgage or the note or notes secured thereby. A reference to such notice shall be noted on the margin of the record of the mortgage.
Chapter 183: Section 54B. Mortgage release, assignment, etc.
; execution before officer entitled to acknowledge instruments; effect Section 54B. A deed of release or written acknowledgment of payment or satisfaction of the debt thereby secured or a release, partial release or assignment of mortgage executed before a notary public, justice of the peace or other officer entitled by law to acknowledge instruments, whether executed within or without the commonwealth, by a person purporting to hold the position of president, vice president, treasurer, clerk, secretary, cashier, loan representative, principal, investment, mortgage or other officer, agent, asset manager, or other similar office or position, including assistant to any such office or position, of the entity holding record title thereto on behalf of such entity acting in its own capacity or as a general partner or co-venturer of the entity holding record title, shall be binding upon such entity and shall be entitled to be recorded or filed, and no vote of the entity affirming such authority shall be required to permit recording or filing.
Chapter 183: Section 54C. Recordation of discharge; effect; discharge by mortgage servicer or note holder who is not holder of record Section 54C. The recordation of a discharge duly executed and acknowledged by a mortgagee, mortgage holder, mortgage servicer or note holder shall constitute a discharge of the mortgage and a release of the lien created by such mortgage on the mortgaged premises; provided, however, that a discharge executed by a mortgage servicer or note holder who is not the holder of record of such mortgage deed will operate as a discharge and release of lien as aforesaid only as to a federally related mortgage securing a one-to-four family residence and only where such a discharge is accompanied by the following:(A) In the case of a mortgage servicer:(1) an original or photostatic copy of the servicing agreement, power of attorney or other document evidencing the authority of the mortgage servicer to service the mortgage, which shall be duly recorded and referenced on said discharge. Such copy shall contain a certification by the mortgagee, mortgage holder or mortgage servicer that it is a true copy of the original document.
(2) In the absence of such documents, said discharge may be effected by the recording of:—(i)(a) an affidavit executed under the pains and penalties of perjury by the mortgagor affirming the inability to obtain any of said documents, the payments made and the reasons why such payments were made to such mortgage servicer, and attaching thereto evidence of such payments in the form of cancelled checks or otherwise, or,(b) in the event the mortgagor is no longer the record owner of the premises and cannot be located, an affidavit executed under the pains and penalties of perjury by an owner of record for more than three years other than the mortgagor, who purchased the premises subsequent to the recording of the mortgage, and whose recorded deed made no reference to the mortgage remaining outstanding, stating as follows: that said owner purchased the premises in good faith and for value in the belief that the premises were not encumbered by the mortgage; that said owner has not made any payments on account of the mortgage; and that no claims have been made under the mortgage subsequent to said purchase against said owner, and(ii) an affidavit executed by the attorney who, pursuant to a payoff statement from said mortgage servicer, transmitted funds to said mortgage servicer sufficient to satisfy in full the outstanding balance of the loan secured by such mortgage, affirming the inability to obtain any of said documents despite sending a demand by registered or certified mail to the servicer and the holder of record at their last known addresses at least thirty days prior, the payment in full of said outstanding balance of the mortgage loan, and the acceptance thereof by said mortgage servicer. Evidence of such acceptance in the form of a cancelled check or otherwise shall be attached to said affidavit.
(B) In the case of a note holder who is not the holder of record of the mortgage deed: an original or photostatic copy of the note, with the endorsements thereon evidencing the transfer of ownership of such note to said holder, shall be duly recorded with or referenced in such discharge. Such copy shall contain a certificate by the note holder that it is a true copy of the original document.
The provisions of this section shall apply to discharges executed on and after the effective date of this act relative to mortgages recorded prior to, on and after said effective date.
Chapter 183: Section 55. Liability for neglect or refusal to discharge; affidavits Section 55. A mortgagee, mortgage holder, mortgage servicer, or note holder, who has accepted full payment and satisfaction of the conditions of a mortgage in accordance with a payoff statement issued by such mortgagee, mortgage holder, mortgage servicer or note holder, as the case may be, and who refuses or neglects to provide a duly executed deed of release or written acknowledgement of payment or satisfaction of the debt thereby secured, or of the conditions therein contained, or to provide such supporting documents as may be required by section fifty-four C, relative to such mortgage within forty-five days after such acceptance shall be liable in damages to the owner of the equity of redemption or his successors in an amount equal to the actual damages sustained by said owner or his successors as the result of such refusal or neglect in addition to all other remedies available at law.
Notwithstanding the foregoing, if such mortgagee, mortgage holder, mortgage servicer, or note holder fails to provide a duly executed deed of release or written acknowledgement of payment or satisfaction of the debt secured by the mortgage, or of the conditions therein contained, within thirty days from receipt and acceptance of payment in accordance with a written payoff statement furnished to the mortgagor by such mortgagee, mortgage holder, mortgage servicer or note holder, as the case may be, an attorney-at-law licensed to practice in the commonwealth may, on behalf of the mortgagor, his executor, administrator, successor, assignee, transferee, or his transferee’s mortgagee, execute and cause to be recorded in the registry of deeds in which the mortgage is recorded, an affidavit which states that:—(1) the affiant is an attorney-at-law in good standing and licensed to practice in the commonwealth;(2) the affidavit is made on behalf of and at the request of the mortgagor, his executor, administrator, successor, assignee or transferee, or his transferee’s mortgagee;(3) the mortgagee, mortgage holder, mortgage servicer, or note holder, has provided a written payoff statement with respect to the loan secured by the mortgage;(4) the affiant has ascertained that the mortgagee, mortgage holder, mortgage servicer, or note holder, has received payment of the loan secured by the mortgage in accordance with the payoff statement, as evidenced by a bank check, certified check or attorney’s clients’ funds account check which has been negotiated by the mortgagee, mortgage holder, mortgage servicer, or note holder, or by other documentary evidence of such receipt of payment;(5) more than thirty days have lapsed since such payment was received by the mortgagee, mortgage holder, mortgage servicer, or note holder;(6) the affiant has given the mortgagee, mortgage holder, mortgage servicer, or note holder at least fifteen days notice in writing by certified mail of his intention to execute and cause to be recorded an affidavit in accordance with this section, together with a copy of the proposed affidavit; and that the mortgagee, mortgage holder, mortgage servicer, or note holder has not delivered a discharge or deed of release in response to such notification and that the mortgagor has complied with any request made by the mortgagee, mortgage holder, mortgage servicer, or note holder for additional payment at least fifteen days prior to the date of the affidavit.
If the payoff was made to a note holder who was not a mortgagee or mortgage holder, an original or photostatic copy of the note, with the endorsements thereon evidencing the transfer of ownership of such note to said holder, shall be duly recorded and referenced in such affidavit, and such affidavit will operate as a discharge and release of lien as aforesaid only as to a federally related mortgage. Such copy shall contain a certificate by the note holder that it is a true copy of the original document.
If the payoff was made to a mortgage servicer who was not a mortgagee or mortgage holder, such affidavit shall operate as a discharge and release of lien as aforesaid only as to a federally related mortgage and only so long as, in addition to such affidavit, one or more of the following are also duly recorded and referenced in such affidavit: an original or photostatic copy of the servicing agreement, power of attorney or other document evidencing the authority of the mortgage servicer to service the mortgage, with said copy containing a certification by the mortgage servicer or the party giving servicing authority that it is a true copy of the original instrument; or an affidavit of the mortgagor or an owner of record pursuant to clause (i) of subparagraph (2) of paragraph (A) of section fifty-four C.
The affidavit shall also include the names and addresses of both the mortgagor and the mortgagee, mortgage holder, mortgage servicer or note holder, as the case may be, the date of the mortgage and the title reference. Similar information shall be included with respect to any recorded assignment of the mortgage.
The affiant shall attach to the affidavit (a) photostatic copies of the documentary evidence that payment has been received by the mortgagee, mortgage holder, mortgage servicer, or note holder, including endorsement of any bank check, certified check or attorney’s client funds account check, and (b) a photostatic copy of the payoff statement, and shall certify on each that it is a true copy of the original document.
The affidavit, when so recorded, shall constitute a discharge of the mortgage and a release of the lien created by such mortgage on the mortgaged premises.
Any person who causes any such affidavit to be recorded in accordance with this section, knowing information and statements contained therein to be false, shall be punished by a fine of not more than five thousand dollars in addition to all other remedies at law.
Chapter 183: Section 56. Mortgage notes; provisions for prepayment Section 56. Any mortgage note secured by a first lien or second or subsequent lien on a dwelling house of 4 or less separate households or on a residential condominium unit occupied or to be occupied in whole or in part by the mortgagor shall be subject to the condition that if said note is paid before the date fixed for payment, any additional amount required to be paid in that event shall be an amount which shall be the balance of the first year’s interest or 3 months’ interest whichever is less; except, that if anticipatory payment is made within 36 months from the date of the note for the purpose of refinancing such loan in another financial institution, an additional payment not in excess of 3 months’ interest may be required; provided, however, that, with respect to the mortgage loan insured by the Federal Housing Commissioner, the mortgagor may be required to reimburse the mortgagee to the full amount of any charges, premiums, or fees required by any statute or by any regulation of the Federal Housing Administration to be paid by the mortgagee upon payment of the note before the date fixed for payment.
No prepayment fee or additional penalty shall be payable by a mortgagor if the mortgage note is paid in full after 36 months from the date of the note. A mortgagor shall not be required to pay a prepayment fee or penalty for making additional payments toward the principal balance for the term of the loan.
Chapter 183: Section 57. Home mortgage notes; prepayment penalty; effect of taking by eminent domain Section 57. It shall be unlawful for a mortgagee to enforce, in any mortgage note secured by a first lien on a dwelling house of three or less separate households occupied or to be occupied in whole or in part by the mortgagor, a penalty, charge, premium, or fee on account of payment of the amount due before the date fixed for payment, when such payment is made on the occasion of a taking of the property for any public purpose.
Chapter 183: Section 58. Real estate abutting a way, watercourse, wall, fence, or other monument Section 58. Every instrument passing title to real estate abutting a way, whether public or private, watercourse, wall, fence or other similar linear monument, shall be construed to include any fee interest of the grantor in such way, watercourse or monument, unless (a) the grantor retains other real estate abutting such way, watercourse or monument, in which case, (i) if the retained real estate is on the same side, the division line between the land granted and the land retained shall be continued into such way, watercourse or monument as far as the grantor owns, or (ii) if the retained real estate is on the other side of such way, watercourse or monument between the division lines extended, the title conveyed shall be to the center line of such way, watercourse or monument as far as the grantor owns, or (b) the instrument evidences a different intent by an express exception or reservation and not alone by bounding by a side line.
Chapter 183: Section 59. Late charges or penalties Section 59. A mortgagee, assignee or holder of a mortgage note secured by a first or subordinate lien on a dwelling house of 4 or less separate households or on a residential condominium unit occupied or to be occupied in whole or in part by the mortgagor shall not require the mortgagor to pay a late charge or late payment penalty unless the penalty is specifically authorized in the loan documents.
A mortgagee, assignee or holder of a mortgage note secured by a first or subordinate lien on a dwelling house of 4 or less separate households or on a residential condominium unit occupied or to be occupied in whole or in part by the mortgagor shall not require the mortgagor to pay a penalty or late charge for any payment paid within 15 days or in the case of a bi-weekly mortgage payment, paid within 10 days, from the date the payment is due.
In no event, in assessing a penalty because of the delinquency in making all or any part of a periodic payment under a mortgage note, shall the penalty or late charge exceed 3 per cent of the amount of principal and interest overdue, and in calculating the penalty or late charge, any amount of the periodic payment representing estimated tax payments required by the terms of the mortgage note or deed shall not be included.
A late payment penalty or late charge may not be charged more than once with respect to a single late payment. If a late payment fee is deducted from a payment made on the loan, and the deduction causes a subsequent default on a subsequent payment, no late payment fee may be imposed for the default. If a late payment fee has been once imposed with respect to a particular late payment, a fee shall not be imposed with respect to any future payment which would have been timely and sufficient, but for the previous default.
Chapter 183: Section 5A. Recording of statements relating to title; use as evidence Section 5A. A statement of a person’s married or unmarried status, kinship or lack of kinship, or of the date of his birth or death, which relates or purports to relate to the title to land and is sworn to before any officer authorized by law to administer oaths may be filed for record and shall be recorded in the registry of deeds for the county where the land or any part thereof lies. Any such statement, if so recorded, or a certified copy of the record thereof, in so far as the facts stated therein bear on the title to land, shall be admissible in evidence in support of such title in any court in the commonwealth in proceedings relating to such title.
Chapter 183: Section 5B. Affidavits relating to title; recording Section 5B. Subject to section 15 of chapter 184, an affidavit made by a person claiming to have personal knowledge of the facts therein stated and containing a certificate by an attorney at law that the facts stated in the affidavit are relevant to the title to certain land and will be of benefit and assistance in clarifying the chain of title may be filed for record and shall be recorded in the registry of deeds where the land or any part thereof lies.
Chapter 183: Section 6. Name and address of grantee; recital of consideration; failure to comply Section 6. Every deed presented for record shall contain or have endorsed upon it the full name, residence and post office address of the grantee and a recital of the amount of the full consideration thereof in dollars or the nature of the other consideration therefor, if not delivered for a specific monetary sum. The full consideration shall mean the total price for the conveyance without deduction for any liens or encumbrances assumed by the grantee or remaining thereon. All such endorsements and recitals shall be recorded as part of the deed. Failure to comply with this section shall not affect the validity of any deed. No register of deeds shall accept a deed for recording unless it is in compliance with the requirements of this section.
Chapter 183: Section 60. Notes secured by liens, amortization of principal by maturity; conditions; variable rate of amortization; exemptions Section 60. Whenever any note made to finance or refinance the purchase of and secured by a first lien on a dwelling house in the commonwealth of four or fewer separate households occupied or to be occupied in whole or in part by the mortgagor provides for installment payments of principal or interest or both that will not amortize the outstanding principal amount in full by the maturity of such note and the term of the mortgage securing the note is for a period longer than such note, such note and its disposition at maturity shall be subject to automatic renewal or extension of the note at the option of the mortgagor and such conditions and restrictions imposed by the commissioner. Such conditions and restrictions shall include, but not be limited to, the following: the minimum term of the note; the method by which the rate of interest on a renewed or extended note may be assigned; the maximum increase in the rate of interest at renewal or extension of note; provisions for decreases in the rate of interest at renewal or extension of the note as may be warranted by market conditions; requirements for advance notification and explanation of adjustment of the rate of interest in connection with renewing or extending the note, provided that such notification and explanation shall occur no less than thirty days prior to the rate adjustment.
Notwithstanding any provision of law to the contrary, the commissioner may, by further conditions and restrictions, provide that the rate of amortization may be varied, including utilizing a period of negative amortization, in order to adjust the rate of interest.
The provisions of this section shall apply to a note evidencing a loan given for personal, family or household purposes.
The provisions of this section shall not apply to such transaction entered into by a person, partnership, association, trust or corporation making five or less mortgage loans in a calendar year; provided, however, that in computing the number of mortgage loans there shall be counted in the loans of more than one partnership, association, trust or corporation, the majority interest of which are owned or controlled directly or indirectly by the same person or persons, partnerships, associations, trusts or corporations and including in the loans of a partnership, trust or company not incorporated the loans of the several members thereof; provided, further, that a note exempted by the provisions of this paragraph shall contain the following statement appearing conspicuously therein: THIS NOTE IS A CONTRACT FOR A SHORT-TERM LOAN. THIS LOAN IS PAYABLE IN FULL AT MATURITY. YOU MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST WHEN DUE. THE LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. YOU WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS YOU MAY OWN, OR WILL HAVE TO FIND A LENDER WILLING TO LEND YOU THE MONEY AT PREVAILING MARKET RATES, WHICH MAY BE CONSIDERABLY HIGHER THAN THE INTEREST RATE ON THIS LOAN. The provisions of this paragraph shall not be construed as imposing any requirements for finance charge disclosure as may otherwise be required by chapter one hundred and forty D.
Chapter 183: Section 61. Payment of interest by mortgagee; request for exemption Section 61. A mortgagee holding a first mortgage or lien on a dwelling house located in the commonwealth of 4 or fewer separate households occupied or to be occupied in whole or in part by the mortgagor who requires advance payments, deposits or other security by the mortgagor for the payment of real estate taxes on mortgaged property, shall pay interest to the mortgagor on any amount so paid or deposited in advance. Interest shall be paid at least once a year at a rate and in a manner to be determined by the mortgagee. Mortgagees showing a net loss from the investment of the amounts so paid or deposited may file with the commissioner of banks a request for an exemption from the requirement that the interest be paid to mortgagors.
Chapter 183: Section 62. Payment of taxes to city or town by mortgagee; due date Section 62. Any mortgagee who requires the prepayment of taxes for real estate located in the commonwealth shall pay to the city or town wherein the property is located the full amount of taxes due on or before the date upon which said taxes become due provided that the mortgagor has paid said amount to the mortgagee. If the mortgagor has not paid the full amount of taxes due before said date, the mortgagee shall pay to the city or town wherein the property is located all amounts which have been paid to him by the mortgagor.
Chapter 183: Section 63. Loan fees; residential property mortgages; disclosure Section 63. A mortgagee, or a mortgage lender or mortgage broker as defined in section one of chapter two hundred and fifty-five E, shall not charge a loan fee, finder’s fee, points, so-called, or similar fees in a mortgage transaction involving residential property located in the commonwealth of four or less units and occupied in whole or in part by the mortgagor, except to the extent that such fees or points have been previously disclosed to the mortgagor in writing, which disclosure may be in the form required by section seventeen D of chapter one hundred and eighty-four, or such other form which discloses said fees or points. A mortgagor shall not be obligated to pay fees or points which have not been previously disclosed as required herein. Nothing contained in this section shall limit a mortgagor’s ability to obtain from such mortgagee, mortgage lender or mortgage broker a temporary or permanent interest rate buydown.
Chapter 183: Section 63A. Revisions in mortgage terms; restrictions; fees Section 63A. A mortgagee may, at the request of the owner of the equity of redemption, revise the rate of interest, extend the term of the mortgage or change the amount of the periodic payments of principal or interest, or both, of an existing note and mortgage from said owner which it holds on a one to four family, owner occupied residence located in the commonwealth; provided, however, that (i) no additional money shall be loaned or advanced thereon, except (a) in accordance with section twenty-eight A, or (b) for the payment of delinquent principal and interest on the original indebtedness to the extent that the aggregate amount outstanding at any one time when added to the balance due on the original indebtedness shall not exceed the amount originally secured by the mortgage or the sum of the outstanding balance due and three delinquent periodic payments of principal and interest, whichever is greater; and (ii) the interest rate on any such note and mortgage, after any such revision, shall not be in excess of the interest rate on the existing note and mortgage so revised. The provisions of paragraph 4 of section six of chapter one hundred and sixty-seven E relative to loan to value requirements shall not apply to a bank, as defined in said chapter one hundred and sixty-seven E, in any revision made pursuant to this section. Any revision in the terms of a mortgage pursuant to this section may be made without the consent of the holders of junior encumbrances and without loss of priority and shall not be construed so as to grant to any such holder of a junior encumbrance rights which, except for said revision, he would not otherwise have. No such mortgage amended or revised pursuant to this section shall be construed to be a rewritten or refinanced mortgage loan.
In any such revision made, subsequent to a notice to the mortgagor of a default in the terms of a mortgage or the commencement of a foreclosure procedure against the mortgagor pursuant to the terms of said mortgage, the amount permitted in clause (i) of the preceding paragraph may be exceeded, for the purpose of curing such default or preventing such foreclosure, without loss of the validity of said mortgage and without loss of the priority thereof for the amount loaned or advanced pursuant to said clause (i). Any amount loaned or advanced in excess of the maximum amount permitted pursuant to said clause (i) shall be recorded as an encumbrance on the real estate securing the mortgage hereby revised which shall be subordinate to all junior encumbrances of record on said real estate at the time any such excess amount has been loaned or advanced, except as to the holder of any such junior encumbrance which has consented, in writing, to be subordinated to said encumbrance and such written consent has been recorded.
Notwithstanding the provisions of section sixty-three, a holder of any such mortgage may charge a fee in connection with any such revision not to exceed one-half of one percent of the outstanding balance of the existing note and mortgage as of the date of any such revision or of the revised balance pursuant to such revision, whichever is greater, and, in addition, an amount not to exceed one-quarter of one percent of said outstanding or revised balance for the acquisition of a current credit report on said owner of the equity of redemption and for administrative expenses incidental to the preparation and execution of documents related to such revision. Such holder shall not assess any additional fees, points, so-called, or similar charges on the said owner of the equity of redemption for any such revision.
For the purposes of this section, the term “rewritten or refinanced mortgage loan” shall mean a loan that requires originating or underwriting services similar to an original mortgage application.
Chapter 183: Section 63B. Recordation of real estate mortgage prohibited until proceeds of loan paid to mortgagor Section 63B. No mortgagee who makes a loan to be secured by a mortgage or lien on real estate located in the commonwealth in conjunction with which, a mortgage deed evidencing the same is to be recorded in a registry of deeds or registry district in the commonwealth, shall deliver said deed or cause the same to be delivered into the possession of such registry of deeds or registry district for the purpose of the recording thereof unless prior to the time said deed is so delivered for recording, said mortgagee has caused the full amount of the proceeds of such loan due to the mortgagor pursuant to the settlement statement relevant thereto given to said mortgagor or in the instance of any such loan in which the full amount of the proceeds due to the mortgagor pursuant to the terms thereof are not to be advanced prior to said recording, so much thereof as is designated in the loan agreement, to be transferred to the mortgagor, the mortgagor’s attorney or the mortgagee’s attorney in the form of a certified check, bank treasurer’s check, cashier’s check or by a transfer of funds between accounts within the same state or federally chartered bank or credit union, or by the funds-transfer system owned and operated by the Federal Reserve Banks, or by a transfer of funds processed by an automated clearinghouse; provided, however, that neither the mortgagor’s attorney or the mortgagee’s attorney shall be required to make disbursements or deliver said proceeds to the mortgagor in such form; provided, however, that the provisions of this section shall not apply to the commonwealth, its agencies or political subdivisions.
Chapter 183: Section 64. Discrimination in residential mortgage loans on basis of location of property Section 64. No mortgagee shall discriminate, on a basis that is arbitrary or unsupported by a reasonable analysis of the lending risks associated with a residential mortgage transaction, in the granting, withholding, extending, modifying or renewing, or in the fixing of the rates, terms, conditions or provisions of any residential mortgage loan or in any written application therefor on residential real property located in the commonwealth of four or fewer separate households occupied or to be occupied in whole or in part by the applicant, that is within the reasonable service area of such mortgagee, on the basis such property is located in a specific neighborhood or geographical area; provided, however, that it shall not be a violation of this section if the residential mortgage loan is made pursuant to a specific public or private program, the purpose of which is to increase the availability of mortgage loans within a specific neighborhood or geographical area. Nor shall any mortgagee use lending or underwriting standards, policies, systems or practices, that discriminate in practice or that discriminate in effect, on a basis that is arbitrary or unsupported by a reasonable analysis of the lending risks associated with a residential mortgage transaction. The preceding sentence shall not preclude a mortgagee from:(a) requiring reasonable and uniformly applied application fees,(b) utilizing income standards which are reasonable in relation to the amount of the loan requested and which shall be disclosed to each prospective applicant, or(c) uniformly refusing to accept applications because of a lack of lendable funds.
Nor shall any mortgagee make any oral or written statement, in advertising or otherwise, to applicants or prospective applicants that would discourage in an arbitrary manner or in a manner that is unsupported by a reasonable analysis of the lending risks associated with a residential mortgage transaction, a reasonable person from making or pursuing an application.
The mortgagee shall inform each applicant in writing of the specific reasons for any adverse action on the application for such mortgage loan or for an extension, modification, or renewal of such loan. If the reason for any adverse action taken by a mortgagee is based in whole or in part on the location or condition of the collateral property, the mortgagee shall inform the applicant in writing of the estimated market value of the subject property on which it relied and the lending standards which it used in taking such adverse action. A mortgagee shall not be liable to any seller or agent of the seller of such property on account of the disclosure of the market value of such property estimated according to a reasonable appraisal rendered to the lender as part of the application process.
For the purposes of this section, adverse action shall mean refusal either to grant financing at the terms and for the amount requested or to make a counter offer acceptable to the applicant.
Nothing contained in this section shall preclude a mortgagee from considering sound underwriting practices and the credit-worthiness of the applicant in the contemplation of any such loan. Such practices shall include the following:(a) the willingness and the financial ability of the borrower to repay the loan;(b) the market value of any real estate proposed as security for any loan;(c) diversification of the mortgagee’s investment portfolio; and(d) the exercise of judgement and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their affairs.
Any person claiming to have been aggrieved as a result of a violation of this section may bring a civil action in the district court, or housing court where applicable, of the county in which the particular mortgagee involved is located; provided, however, that a person must first exhaust his administrative remedies through the appropriate mortgage review board established pursuant to section fourteen A of chapter one hundred and sixty-seven.
Upon a finding that a mortgagee has committed a violation of this section, the court may award actual damages or punitive damages in the amount of five thousand dollars, whichever is greater, but in no event less than two thousand five hundred dollars, and may, in its discretion, award court costs and attorney’s fees.
If the court finds as a fact that any person claiming to have been aggrieved by this section has intentionally misrepresented a material fact in the mortgage application or if the court finds as a fact that the suit is frivolous, the court may award actual damages or punitive damages in the amount of five hundred dollars, whichever is greater, to the mortgagee, and may in its discretion award court costs and attorney’s fees.
Chapter 183: Section 65. Acceptance of written memorandum as evidence of insurance Section 65. Any mortgagee doing business in the commonwealth who makes in excess of five mortgage loans per year shall accept a written memorandum of a preliminary contract of insurance pursuant to section ninety-eight of chapter one hundred and seventy-five as evidence of insurance from any duly licensed agent, broker or insurance company; provided, however, that a contract for insurance for a term of not less than one year is issued within thirty days of said memorandum, or in the event of the cancellation of said memorandum, the mortgagee shall be provided with prior written notification thereof.
Chapter 183: Section 66. Required insurance; limitation Section 66. A bank, lending institution, mortgage company or any mortgagee doing business in the commonwealth, when making a mortgage loan, shall not require, as a condition of a mortgage or as a term of a mortgage deed, that the mortgagor purchase casualty insurance on property which is the subject of the mortgage in an amount in excess of the replacement cost of the buildings or appurtenances on the mortgaged premises.
For purposes of this section, a bank, lending institution, mortgage company or mortgagee shall include, but not be limited to, any bank as defined in section one of chapter one hundred and sixty-seven, any national bank, national banking association, federal savings bank, federal savings and loan association and federal credit union. The terms “replacement cost”, “buildings” or “appurtenances” as used in this section shall be consistent in meaning with such terms as used in policy forms approved by the commissioner of insurance.
A lender shall not finance, directly or indirectly, any credit life, credit disability, credit unemployment insurance, credit property insurance, including debt cancellation or suspension agreements, or any other life or health insurance premium through a home mortgage loan. Premiums on insurance calculated and payable on a monthly basis by the borrower shall not be considered financed by the lender.
Chapter 183: Section 67. Reverse mortgage loan prohibition Section 67. No mortgagee shall make a reverse mortgage loan on residential property except in accordance with the provisions of paragraph 14A of subsection B of section two of chapter one hundred and sixty-seven E. For the purposes of this section, the term “residential property” shall mean a one-to-four family dwelling owned and occupied in whole or in part by the mortgagor and located in the commonwealth.
Chapter 183: Section 68. Mortgagees licensed as insurance producers; mortgage loans secured by residential real estate; conditions and limitations Section 68. Any mortgagee doing business in the commonwealth and licensed as an insurance producer pursuant to section 162M or 162N of chapter 175, when making a mortgage loan secured by residential real estate located in the commonwealth, shall be subject, in addition to all applicable provisions of said chapter 175, to conditions and limitations established by the commissioner of banks pursuant to section 2A of chapter 167F; provided, however, that the provisions of clause (a) of subparagraph (6) of said section 2A shall not be applicable to any such mortgagee which does not accept deposits.
Chapter 183: Section 6A. Instruments conveying unregistered land; sufficient description or identification; recording; failure to comply Section 6A. No instrument conveying unregistered land shall be accepted for recording unless (a) the instrument indicates that the land conveyed is the same as described in or conveyed by prior recorded instruments identified sufficiently to locate the place of recording within the registry, or states that the instrument does not create any new boundaries, or (b) the instrument identifies the land conveyed either by reference to a plan or plans previously recorded in the same registry of deeds and identified sufficiently to locate the place of recording therein, or by reference to a plan or plans recorded with the conveyance. Failure to comply with this section shall not affect the validity of any instrument.
Chapter 183: Section 6B. Address of property affected Section 6B. All documents to be recorded in the land court or registry of deeds shall, where applicable, set forth in the margin the street address of the property which is affected by such document; provided, however, that failure to include such address shall not affect the validity of the document or the recording thereof.
Chapter 183: Section 6C. Residence and address of mortgagee or assignee Section 6C. Every mortgage and assignment of a mortgage presented for record shall contain or have endorsed upon it the residence and post office address of the mortgagee or assignee if said mortgagee or assignee is a natural person, or a business address, mail address or post office address of the mortgagee or assignee if the mortgagee or assignee is not a natural person. Such endorsement shall be recorded as part of the mortgage or assignment of a mortgage. Failure to comply with this section shall not affect the validity of any mortgage or assignment of a mortgage or the recording thereof. No register of deeds shall accept a mortgage or assignment of a mortgage for recording unless it is in compliance with the requirements of this section.
Chapter 183: Section 7. Conveyance by grantor notwithstanding disseisin or adverse possession; title; grantee’s rights Section 7. A conveyance of land, if otherwise valid, shall, notwithstanding disseisin or adverse possession, be as effectual to transfer the title of the grantor as if he were actually seized and possessed of such land, and shall vest in the grantee the rights of entry and of action for recovery of the estate incident to such title.
Chapter 183: Section 8. Statutory forms; alteration or substitution; “incorporation by reference” defined Section 8. The forms set forth in the appendix to this chapter may be used and shall be sufficient for their respective purposes. They shall be known as “Statutory Forms” and may be referred to as such. They may be altered as circumstances require, and the authorization of such forms shall not prevent the use of other forms. Wherever the phrase “incorporation by reference” is used in the following sections, the method of incorporation as indicated in said forms shall be sufficient, but shall not preclude other methods.
Chapter 183: Section 9. Rules and definitions relating to deeds or other instruments Section 9. For the purpose of avoiding the unnecessary use of words in deeds or other instruments relating to real estate, whether said statutory form or other forms are used, the rules and definitions contained in sections ten to twenty-eight, inclusive, shall apply to all such instruments executed or delivered on or after January first, nineteen hundred and thirteen.
Section 1. As used in this chapter, the following words shall, unless the context otherwise requires, have the following meanings:—“Building”, any building containing one or more units comprising a part of the condominium.
“By-laws”, the by-laws of the organization of unit owners.
“Common areas and facilities” shall, except as otherwise provided or stipulated in the master deed, mean and include:—(1) The foundations, columns, girders, beams, supports, party walls, common walls, main walls, roofs, halls, corridors, lobbies, public stairs and stairways, fire escapes and entrances and exits of the building;(2) Installations of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating;(3) The elevators, tanks, pumps, motors, fans, compressors, ducts, and in general all apparatus and installations existing for common use;(4) The land on which the building is located, or the lessee’s interest in any lease of such land which is submitted to the provisions of this chapter;(5) The basements, yards, lawns, gardens, recreational facilities, parking areas and storage spaces;(6) The premises for the lodging of custodian or persons in charge of the condominium;(7) Such community and commercial facilities as may be provided for in the master deed as being owned in common.
(8) All other parts of the condominium necessary or convenient to its existence, maintenance and safety, or normally in common use.
“Common expenses”, the expenses of administration, maintenance, repair or replacement of the common areas and facilities, and expenses declared common expenses by this chapter.
“Common funds”, all funds held by the organization of unit owners.
“Common profits”, the balance of all income, rents, profits and revenues from the common areas and facilities remaining after the deduction of the common expenses.
“Condominium”, the land or the lessee’s interest in any lease of such land which is submitted to the provisions of this chapter, the building or buildings, all other improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, which have been submitted to the provisions of this chapter.
“Declarant”, the person or any other entity and its successors or assigns who submits land or the lessee’s interest in any lease in land to this chapter pursuant to section two hereof.
“Leasehold condominium”, a condominium created by the submission of a lessee’s interest in a lease pursuant to this chapter.
“Limited common areas and facilities”, a portion of the common areas and facilities either (i) described in the master deed or (ii) granted or assigned in accordance with the provisions of this chapter by the governing body of the organization of unit owners, for the exclusive use of one or more but fewer than all of the units.
“Manager”, the managing agent, the trustees in a self-managed condominium, or any other person or entity who performs or renders management or administrative services to the organization of unit owners, including but not limited to preparation of budgets and other financial documents; the collecting, controlling, disbursing, accounting or custody of common funds; obtaining insurance; conducting meetings of the organization of unit owners; arranging for and coordinating maintenance and repair; or otherwise overseeing the day to day operations of the condominium for the organization of unit owners.
“Master deed”, the instrument by which the condominium is submitted to the provisions of this chapter, as hereinafter provided, and any amendment to said instrument.
“Organization of unit owners”, the corporation, trust or association owned by the unit owners and used by them to manage and regulate the condominium.
“Replacement reserve fund”, a separate and segregated portion of the common funds of the organization of unit owners which shall be used to replace, restore, or rebuild common areas and facilities.
Any given “percentage of unit owners” means the owners of that percentage in the aggregate in interest of the undivided ownership of the common areas and facilities.
“Unit”, a part of the condominium including one or more rooms, with appurtenant areas such as balconies, terraces and storage lockers if any are stipulated in the master deed as being owned by the unit owner, occupying one or more floors or a part or parts thereof, including the enclosed space therein, intended for any type of use, and with a direct exit to a street or way or to a common area leading to a street or way.
“Unit designation”, the number, letter or combination thereof designating the unit in the master deed.
“Unit owner”, the person or other entity owning a unit, including the declarant.
association; owner’s interest; powers and duties; management Section 10. (a) Each unit owner shall have the same percentage interest in the corporation, trust or unincorporated association provided for in the master deed for the management and regulation of the condominium as his proportionate interest in the common areas and facilities. Such interest shall not be separated from ownership in the unit to which it appertains and shall be deemed conveyed or encumbered with the unit even though such interest is not expressly mentioned or described in the conveyance or other instrument.
(b) Such corporation, trust or association shall have, among its other powers, the following rights and powers:—(1) To lease, manage, and otherwise deal with such community and commercial facilities as may be provided for in the master deed as being common areas and facilities.
(2) To own, convey, encumber, lease and otherwise deal with units conveyed to it or purchased by it as the result of enforcement of the lien for common expenses, any right of first refusal, or otherwise.
(3) To obtain insurance on the common areas and facilities. Such insurance coverage shall be written in its name, and the provisions thereof shall be without prejudice to the right of each unit owner to insure his own unit for his own benefit.
(4) To conduct litigation and to be subject to suit as to any course of action involving the common areas and facilities or arising out of the enforcement of the by-laws, administrative rules or restrictions in the master deed.
(5) To impose charges or to charge interest for the late payment of common expense assessments or other charges, and to levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners.
(6) To require or cause the installation of energy saving devices in all units, not already separately metered for water and utilities, and common areas in the condominium. Such devices shall include, but not be limited to, separate meters for each unit that will monitor the use of water and other utilities for the unit to which it is attached, low-flow toilets and showerheads, faucet aerators, windows and storm windows; provided, however, that such devices shall not be considered to be an improvement for purposes of section eighteen; and provided further, that the board of trustees of the organization of unit owners or if there is no board of trustees, the entity performing its duties receives the approval of the majority of unit owners in attendance at a meeting, for which notice was duly given and which was held for the purposes of voting on the installation of such energy conservation devices. The cost of installation of such energy conservation devices shall be an expense of the organization of unit owners, which may be assessed to the individual unit owners as a special assessment, the amount of which, in an instance where such energy conservation device has been installed in each individual unit, or in substantially all of the units in the condominium, may be attributable to each unit owner in the amount of the cost of the item installed. The organization of unit owners may assess to each unit owner his proportionate share of the costs for water and other utilities, as measured by the meter attached to the unit. In the event of a conflict between this clause and the master deed, trust, or bylaws, and any amendment thereto, of any condominium submitted to the provisions of this chapter, the provisions of this clause shall control. Notwithstanding the aforesaid, nothing contained herein shall be construed to conflict with the provisions of the state sanitary code.
The expenses incurred in and proceeds accruing from the exercise of the aforesaid rights and powers shall be common expenses and common profits.
(c) The organization of unit owners may appoint a manager or managing agent or be self-managed by their elected trustees or managing board. The organization of unit owners shall keep a complete copy of the following items, except when the organization shall appoint a manager or managing agent who has responsibility for the collection of assessments, payment of common expenses, or the accounting or custody of common funds, in which case the manager or managing agent shall be responsible, without limitation, for keeping the records in item (4) below:(1) a true and accurate copy of the master deed as recorded and amended;(2) the by-laws, including amendments thereto, as recorded;(3) the minute book, as maintained by the organization of unit owners, to the extent such minutes are kept; and(4) financial records, including the following:(i) records of all receipts and expenditures, invoices and vouchers authorizing payments, receivables, and bank statements relating thereto;(ii) records regarding the replacement reserve fund or any other funds of the organization of unit owners and bank statements relating thereto;(iii) audits, reviews, accounting statements, and financial reports relating to the finances of the organization of unit owners;(iv) contracts for work to be performed for or services to be provided to the organization of unit owners; and(v) all current insurance policies of the organization of unit owners, or policies which name the organization as insured or obligee.
Such records shall be kept in an up-to-date manner within the commonwealth and shall be available for reasonable inspection by any unit owner or by any mortgagee holding a recorded first mortgage on a unit during regular business hours and at such other times as may be provided in the agreement between the manager or managing agent and the organization of unit owners. Access to said records shall include the right to photocopy said records at the expense of the person or entity making the request.
Such records, and all other records to be maintained by the manager or managing agent in accordance with any agreement between the organization of unit owners and said manager or managing agent, shall be the property of the organization of unit owners. The organization shall be entitled, during regular business hours, to receive and review such records, upon request, at any time during the term of the agreement. The manager or managing agent shall give to the organization of unit owners all books, records, funds, and accounts in the possession of the manager or managing agent upon termination of the agreement. All records shall be retained for a period of at least seven years.
(d) The party responsible for keeping the records in clause (4) of subsection (c) shall be responsible for preparing a financial report to be completed within one hundred and twenty days of the end of the fiscal year, including without limitation a balance sheet, income and expense statement, and a statement of funds available in the various funds of the organization. A copy of such financial report shall be made available to all unit owners within thirty days of its completion, and shall be made available upon request to any mortgagee holding a recorded mortgage on a unit in the condominium.
An independent certified public accountant shall conduct according to the standards of the American Institute of Certified Public Accountants, a review of the financial report for any condominium comprising 50 or more units. Such review shall be conducted annually, or less frequently in accordance with subsection (m), but in no case less frequently than every two years. In any action brought to enforce the provisions of this paragraph, the prevailing party shall be entitled to reasonable attorneys’ fees incurred in such action.
In the case of condominiums comprising fewer than fifty units, an independent certified public accountant shall conduct, according to the standards of the American Institute of Certified Public Accountants, a review of the financial report, if so voted by a majority in beneficial interest of the unit owners at a meeting duly convened in accordance with the by-laws of the condominium, and the cost of said review shall be paid as a common expense of the organization.
A unit owner or mortgagee holding a recorded mortgage on a unit in the condominium shall be allowed to have a review or audit prepared at its own expense, such expense to include, but not be limited to, reasonable expenses incurred by the manager directly related to the preparation of the review or audit. The organization of unit owners and the manager or managing agent shall fully cooperate in providing the information needed to perform the review or audit.
A not-for-profit community development corporation, housing partnership, or other not-for-profit entity established for the purpose of creating or establishing affordable housing may request a copy of the financial report described earlier in this subsection by making such request in writing to the owner of a unit with whom said community development corporation, housing partnership, or other entity entered into a legally enforceable, good faith and bona fide offer to purchase said unit, which offer grants said community development corporation, housing partnership, or other entity the right to inspect said documentation as a condition to the purchase of said unit. In such case, said unit owner may obtain said documentation from the organization of unit owners, the manager, or managing agent of the condominium, and may transmit the documents to said community development corporation, housing partnership, or other entity.
(e) In any contract between a manager or managing agent and an organization of unit owners, the organization shall have a right to terminate the contract for cause with ten days’ notice, during which time the manager or managing agent shall have an opportunity to cure. The organization shall in no case be required to provide more than ninety days’ notice if the contract is terminated without cause.
(f) If the organization of unit owners appoints a manager or managing agent who has responsibility for the collection of assessments, payment of common expenses, or the accounting or custody of common funds, then the manager or managing agent shall be responsible for keeping the records listed in clause (4) of subsection (c), and shall:(1) render at least monthly, or less frequently in accordance with subsection (m), but in no case less frequently than quarterly, a written report to the trustees or the managing board of the organization of unit owners detailing all receipts and expenditures on behalf of the organization, including beginning and ending balances and copies of all relevant bank statements and reconciliations for the replacement reserve fund and any other funds of the organization for which the manager or managing agent has responsibility; and(2) maintain a separate and distinct account or accounts for each of the following: the replacement reserve fund and any other fund of the organization for which the manager or managing agent has responsibility. These funds shall not be commingled with the assets of the manager or managing agent or with the assets of any other person or any other entity. These funds shall not be subject to the claims of any creditor of the manager or managing agent or its successor in interest including a secured creditor or trustee in bankruptcy, and shall not be subject to the claims of any creditor of any other person or any other entity.
(g) Any reserve account of the organization of unit owners shall require all checks to be signed by one member of the governing board or the organization in addition to the managing agent, if one exists, unless there is a written agreement to the contrary between the organization of unit owners and the managing agent. The governing board shall designate a member or members to be the approved signatories on such checks. The requirements of this subsection may be modified pursuant to subsection (m).
(h) The organization of unit owners in condominiums of more than ten units must secure and maintain, at its own cost and expense, blanket fidelity insurance coverage insuring against the dishonest acts of any person, trustee, manager, managing agent or employee, or the organization of unit owners who is responsible for handling organizational funds, in an amount equal to at least one-fourth of the annual assessments, excluding special assessments. Such fidelity insurance policy per its definition of employee must specifically include the manager or managing agent or provide for same by an endorsement to the fidelity policy. Such fidelity insurance must name the organization of unit owners as the insured and include a provision requiring ten days’ written notice to the organization or manager, in the event of cancellation or substantial modification.
The manager or managing agent shall be the designated agent on the fidelity insurance policy, and the fidelity insurance policy shall be the property and for the sole benefit of the organization of unit owners.
The manager or managing agent must maintain, at its sole cost and expense, its own fidelity insurance with substantially the same form of coverage.
The requirements of this subsection may be modified pursuant to subsection (m) of this section.
(i) All condominiums shall be required to maintain an adequate replacement reserve fund, collected as part of the common expenses and deposited in an account or accounts separate and segregated from operating funds. The requirements of this subsection may be modified pursuant to subsection (m) of this section.
(j) The declarant shall not use any funds of the organization to fund expenses relating to the initial construction, development, and marketing of the project, to pay the declarant’s share of common expenses, or to pay for any costs that are not directly related to the operation of the condominium.
(k) The organization of unit owners shall designate a person or entity who shall oversee the maintenance and repair of the common areas of the condominium. The organization of unit owners shall notify all unit owners in writing of the name and phone number of the person or entity designated to oversee maintenance and repair of the common areas, and shall notify all unit owners whenever there is a change in said person or entity.
In cases where a unit owner rents a unit to a tenant, the owner of said unit shall designate a person or entity who shall oversee the maintenance and repair of said unit. At the commencement of any tenancy, the unit owner shall notify the tenant and the organization of unit owners in writing of the name and phone number of said person or entity, and shall notify the tenant in writing of the name and phone number of the person or entity designated to oversee maintenance and repair of the common areas. The unit owner shall notify the tenant and the organization of unit owners in writing whenever there is a change in the person or entity designated to oversee maintenance and repair of the unit, and shall notify the tenant in writing whenever the unit owner is notified of a change in the person or entity designated to oversee maintenance and repair of the common areas.
(l) The manager or managing agent, the president, the chairperson, or a majority of the governing board of the condominium may, when so empowered, act for the organization of unit owners and references herein to the organization of unit owners shall include such person or persons when so empowered.
(m) After control of the condominium has been transferred from the declarant to the organization of unit owners, the organization may by an annual vote of sixty-seven percent in beneficial interest or more of the unit owners modify any or all of the following provisions: the requirement regarding the review of financial records for condominiums comprising fifty or more units in the second paragraph of subsection (d), but such review shall be performed not less frequently than every two years as provided in said subsection (d); the frequency with which written reports must be prepared by the manager or management agent pursuant to clause (1) of subsection (f); the signature requirements in subsection (g); the requirement for fidelity insurance coverage in subsection (h); and the reserve fund requirement of subsection (i); provided, however, that any such modification may be rescinded at any time by the vote of a majority in beneficial interest of the unit owners.
(n) If the organization of unit owners is a trust or unincorporated association, an instrument signed by a majority of the trustees or of the managing board named in the master deed and duly attested as the act of such trust or association may be relied on as conclusively establishing that such instrument was the free act of the trust or association, and shall be binding upon such trust or association when recorded. No purchaser, mortgagee, lender, or other person dealing with the trustees or managing board of the association, as they appear of record, shall be bound to ascertain or inquire further as to the persons who are then trustees or members of the managing board nor be affected by any notice, implied or actual, relative thereto, other than a recorded certificate thereof, and such recorded certificate shall be conclusive evidence of the personnel of said trustees or members of the managing board and of any changes therein.
Section 11. In addition to other provisions required or permitted by law, the by-laws of the organization of unit owners shall provide at all times for at least the following:—(a) The method of providing for the necessary work of maintenance, repair and replacement of the common areas and facilities and payments therefor, including the method of approving payment vouchers.
(b) The manner of collecting from the unit owners their share of the common expenses.
(c) The procedure for hiring all personnel, including whether or not a manager or managing agent may be engaged.
(d) The method of adopting and of amending administrative rules and regulations governing the details of the operation and use of the common areas and facilities.
(e) Such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities, not set forth in the master deed, as are designed to prevent unreasonable interference with the use of their respective units and of the common areas and facilities by the several unit owners.
Section 12. The by-laws may also provide:—(a) A method for determining the fair market value of the unit and of the condominium in cases arising under sections seventeen and eighteen by submitting the matter to arbitration by a board consisting of one member chosen by the dissenting unit owner, one member chosen by the organization of unit owners, and one member chosen by the two members so selected.
(b) A procedure for submitting the disputes arising from the administration of the condominium to arbitration.
(c) A right of first refusal by the organization of unit owners in case of the sale of a unit, such right to be exercised within thirty days after written notice of intent to sell is given to such organization, provided, however, that this right shall not be exercised so as to restrict alienation, conveyance, sale, leasing, purchase, ownership and occupancy of units because of race, creed, color, national origin or sex.
(d) Such other provisions as may be deemed necessary for the management and regulation of the organization of unit owners or the condominium not inconsistent with this chapter and the master deed.
liability Section 13. All claims involving the common areas and facilities shall be brought against the organization of unit owners, and all attachments and executions related to such claims shall be made only against common funds or property held by the organization of unit owners and not against the common areas and facilities themselves other than the leasehold of any lease included therein. After such common funds and property have been exhausted, individual unit owners shall be liable for the balance due, if any, provided, however, that the amount for which a unit owner is liable shall be limited to a sum equal to the amount of his percentage interest in the common areas and facilities times the balance due.
Section 14. Each unit and its interest in the common areas and facilities shall be considered an individual parcel of real estate for the assessment and collection of real estate taxes but the common areas and facilities, the building and the condominium shall not be deemed to be a taxable parcel. Except as provided in section 127B1/2 of chapter 111, betterment assessments or portions thereof, annual sewer use charges, water rates and charges and all other assessments, or portions thereof, rates and charges of every nature due to a city, town or district with respect to the condominium or any part thereof, other than real estate taxes, may be charged or assessed to the organization of unit owners; provided, however, that any lien of the city, town or district provided by law therefor shall attach to the units in proportion to the percentages, set forth in the master deed on record, of the undivided interests of the respective units in the common areas and facilities.
Section 15. The subdivision control law shall not apply to the division of a building into units.
Section 16. The owners of any land may submit the same to the provisions of this chapter by the recording in the registry of deeds of a master deed, or, if all of the land is registered under the provisions of chapter one hundred and eighty-five, by filing the master deed under the provisions of said chapter. If a portion of the land desired to be submitted to the provisions of this chapter is registered land under said chapter one hundred and eighty-five, such recording of a master deed of the whole shall be a sufficient ground for withdrawal of the registered land from the provisions of said chapter one hundred and eighty-five.
upon disapproval; repair or restoration upon approval; purchase from dissenting owner Section 17. (a) Rebuilding of the common areas and facilities made necessary by fire or other casualty loss shall be carried out in the manner set forth in the by-law provision dealing with the necessary work of maintenance, repair and replacement, using common funds, including the proceeds of any insurance, for that purpose, provided such casualty loss does not exceed ten per cent of the value of the condominium prior to the casualty.
(b) If said casualty loss exceeds ten per cent of the value of the condominium prior to the casualty, and(1) If seventy-five per cent of the unit owners do not agree within one hundred and twenty days after the date of the casualty to proceed with repair or restoration, the condominium, including all units, shall be subject to partition at the suit of any unit owner. Such suit shall be subject to dismissal at any time prior to entry of an order to sell if an appropriate agreement to rebuild is filed. The net proceeds of a partition sale together with any common funds shall be divided in proportion to the unit owners’ respective undivided ownership in the common areas and facilities. Upon such sale, the condominium shall be deemed removed from the provisions of this chapter.
(2) If seventy-five per cent of the unit owners agree to proceed with the necessary repair or restoration, the cost of the rebuilding of the condominium, in excess of any available common funds, including the proceeds of any insurance, shall be a common expense, provided, however, that if such excess cost exceeds ten per cent of the value of the condominium prior to the casualty, any unit owner who did not so agree may apply to the superior court of the county in which the condominium is located on such notice to the organization of unit owners as the court shall direct, for an order directing the purchase of his unit by the organization of unit owners at the fair market value thereof as approved by the court. The cost of any such purchase shall be a common expense.
Section 18. (a) If fifty per cent or more but less than seventy-five per cent of the unit owners agree to make an improvement to the common areas and facilities, the cost of such improvement shall be borne solely by the owners so agreeing.
(b) Seventy-five per cent or more of the unit owners may agree to make an improvement to the common areas and facilities and assess the cost thereof to all unit owners as a common expense, but if such improvement shall cost in excess of ten per cent of the then value of the condominium, any unit owner not so agreeing may apply to the superior court of the county in which the property is located, on such notice to the organization of unit owners as the court shall direct, for an order directing the purchase of his unit by the organization of unit owners at fair market value thereof as approved by the court. The cost of any such purchase shall be a common expense.
Section 19. (a) Seventy-five per cent of the unit owners, or such greater percentage as is stipulated in the by-laws, may remove all of a condominium or portion thereof from the provisions of this chapter by an instrument to that effect, duly recorded, provided that the holders of all liens upon any of the units affected consent thereto by instruments duly recorded. Upon such removal, the condominium, including all the units, or the portion thereof thus removed shall be owned in common by the unit owners and the organization of unit owners shall be dissolved, unless it is otherwise provided in the removal instrument. The undivided interest in the property owned in common held by each unit owner shall be equal to the percentage of the undivided interest of such owner in the common areas and facilities.
(b) Such removal shall not bar the subsequent resubmission of the land and buildings involved to the provisions of this chapter.
interests in realty Section 2. This chapter shall apply only when the owner of the land or the lessee of the land submits such owner’s or lessee’s interest in the land hereof by duly executing and recording a master deed with an assent by the lessor in the case of a leasehold condominium, containing a statement to the effect that the owner or lessee proposes to create a condominium to be governed by the provisions of this chapter, provided that, in the case of a leasehold condominium, the term of such lease shall not be less than sixty years, from the date on which the condominium was submitted to the provisions of this chapter. The provisions of this chapter shall not be deemed to preclude or regulate the creation or maintenance of other interests in real property not expressly declared by the owner or lessee to be subject thereto. For purposes of this section, the holder of a license granted by the department of environmental protection under the provisions of chapter ninety-one for development of commonwealth tidelands shall be deemed the owner of the land, and the licensee shall be deemed the holder of a sufficient interest in real estate to be submitted to and governed by the provisions of this chapter. The provisions of this chapter relating to the creation of leasehold condominiums shall apply only to leasehold condominiums created after April sixth, nineteen hundred and ninety-three.
organization and ownership Section 20. Notwithstanding any other provision of general or special law, a city or town may own a unit of a condominium under this chapter, participate in the organization of unit owners and be liable for its share of the common expenses of the condominium. Said city or town may either purchase a unit of a condominium or, if the city or town intends to become the owner of such a unit and use the same for municipal purposes, it may contract for the creation of a condominium and for the advancement to the city or town of the acquisition costs allocable to all other units therein. It may acquire land therefor or devote thereto land already owned by it, construct, reconstruct or remodel a building thereon subject however to the provisions of chapter one hundred and forty-nine notwithstanding that said building is not intended solely for municipal uses, and execute and record a master deed submitting such land and building to the provisions of this chapter. Upon the completion of the said construction, reconstruction or remodelling it may convey to such other parties to said contract such units as have been paid for in the proportion of the aggregate cost allocable to their stipulated units. The authority contained in this section shall be exercised, in the case of the city of Boston, by its public facilities commission, in the case of a city having a Plan E charter, by the affirmative vote of a majority of its city council, in the case of any other city, by its city council subject to the provisions of its city charter, and in the case of a town, by its town meeting.
master deed Section 21. If a condominium does not contain any unit which is designed for occupancy by only one family or household, or if the floor area of all those units which are designed for occupancy by only one family or household does not in the aggregate exceed ten percent of the floor area of all units in the condominium, then the following provisions shall be applicable notwithstanding any other provisions of this chapter, and such condominium shall be considered a commercial condominium:(a) The by-laws may provide:—(1) That to any extent specified in the by-laws the common profits shall be distributed among, and the common expenses shall be charged to, the unit owners in proportions other than according to their respective percentages of the undivided interest in the common areas and facilities.
(2) That to any extent specified in the by-laws the unit owners shall not be personally liable for sums assessed for their share of common expenses, but such provisions shall not adversely affect any lien for said share.
(3) For limitations upon the first mortgages of record or the types or categories thereof which shall have priority over the liens provided for in clause (c) of section six, which may be dependent on the person or entity to whom such mortgages are given or upon such other criteria as may be specified in the by-laws.
(4) A procedure for submitting the disputes arising from the administration of the condominium to arbitration or other impartial determination.
(5) Provisions giving a particular unit owner or owners voting rights with respect to election of directors, trustees or members of the managing board less than, or in excess of, the voting rights which such owner or owners would otherwise have had, and provisions requiring or permitting approval of any matter, or any specified category or categories of matters, by a proportion greater than a majority, which proportion may be as great as one hundred percent.
(6) Terms and conditions differing from or exempting the condominium from subsection (c) of section six, subsections (c) to (k), inclusive, and (m) of section ten, and sections seventeen, eighteen, and nineteen, or any of them, regarding limited lien priority for outstanding common expenses, payment of outstanding common expenses by tenants, rebuilding made necessary by fire or other casualty loss, the making of improvements and the allocations of the costs of such rebuilding or improvements, and the removal of the condominium or portion thereof from the provisions of this chapter; and in such case such terms and conditions so provided in the by-laws shall take precedence over such provisions of said subsection (c) of section six, subsections (c) to (k), inclusive, and (m) of section ten, and sections seventeen, eighteen, or nineteen to the extent inconsistent therewith.
(b) The master deed:—(1) Need not contain a statement of the number of rooms in any unit designed for purposes other than dwelling.
(2) May contain a requirement that in order for instruments to be binding on an organization of unit owners which is a trust or unincorporated association, such instruments shall be signed by a greater proportion of the trustees or of the managing board than a majority, which proportion may be as great as one hundred percent; and in such case the provisions of clause (e) of section ten shall apply only to instruments signed by the proportion of trustees or of the managing board set forth in such requirement in the master deed.
liability of lender and developer Section 22. In the event of a foreclosure upon a condominium development, the lender taking over the project shall succeed to any obligations the developer has with the unit owners and to the tenants, except that the developers shall remain liable for any misrepresentation already made and for warranties on work done prior to the transfer.
Section 3. Each unit together with its undivided interest in the common areas and facilities, whether or not such unit is built on owned or leased land shall constitute real estate, and may be the subject of demise, devise, gift, mortgage, ownership, possession, sale, trust, the laws of descent and distribution and all other rights incidental to the holding of real estate as if it were sole and entirely independent of the other units in the condominium of which it forms a part.
Section 4. Each unit owner shall be entitled to the exclusive ownership and possession of his unit, subject to the provisions of this section and of sections seventeen, eighteen and nineteen; provided, however, that:—(1) No unit shall be devoted to a use prohibited in the master deed or any lease which is submitted to the provisions of this chapter;(2) The organization of unit owners, its agent or agents shall have access to each unit from time to time during reasonable hours for the maintenance, repair or replacement of any of the common areas and facilities therein or accessible therefrom or for making emergency repairs therein necessary to prevent damage to the common areas and facilities or to another unit or units; and(3) Each unit owner shall comply with the by-laws and with any administrative rules and regulations adopted pursuant thereto, as either of the same may be amended from time to time, and with the lawful covenants, conditions and restrictions set forth in the master deed or in the deed to his unit and with each lease which is submitted to the provisions of this chapter.
(4) Each unit owner shall provide to the organization of unit owners and to each mortgagee holding a recorded mortgage upon the unit, within sixty days of the effective date of this subsection or at the time of acquisition of title to the unit, whichever comes later, written notice of the unit owner’s name and mailing address. Thereafter, the unit owner shall provide written notice to the organization and said mortgagees of any changes in the name or mailing address previously provided by the unit owner. The organization and mortgagees may rely in good faith upon the most recent notice of name and address for the purpose of providing notices to the unit owner under this chapter or under provisions of the loan documents or condominium documents, and such notices sent in writing to the address listed in the most recent notice of name and address, if relied upon in good faith, shall be deemed sufficiently given, provided that the organization or mortgagee, as the case may be, has complied with other requirements, if any, of this chapter and the loan or condominium documents.
(5) The organization of unit owners shall provide to each mortgagee holding a recorded mortgage upon a unit, written notice of the organization’s name and mailing address. The organization shall provide written notice to each such mortgagee of any changes in the name or mailing address previously provided by the organization. Each mortgagee holding a recorded mortgage upon a unit shall give written notice of the mortgagee’s name and mailing address to the organization of unit owners. Thereafter, each mortgagee shall provide written notice to the organization of any changes in said name and address for the purpose of providing notices to the mortgagee under this chapter or under the provisions of the loan documents or condominium documents. The organization and mortgagees may rely in good faith upon the most recent notice of name and address for the purpose of providing notices to the organization and mortgagees, as the case may be, under this chapter or under the provisions of the loan documents or condominium documents. In addition, any first mortgagee may at any time give notice to both the unit owner and the organization of unit owners of its desire to receive notice regarding the granting of an easement or other interest or the granting or designation of a limited common area, or the taking of other action by the organization of unit owners all as provided for in paragraph (2) of subsection (b) of section 5. Notice to the governing body of the organization of unit owners shall be deemed notice to the organization of unit owners. Any notices sent in writing to a mortgagee or to the governing body of the organization of unit owners, as listed in the most recent notice of name and address, if relied upon in good faith, shall be deemed sufficiently given, provided that the organization or mortgagee, as the case may be, has given notice as required by this chapter.
(6) Each unit owner shall provide in writing to the organization of unit owners the name or names of any tenants or occupants of the unit, other than visitors for less than thirty days.
percentage; division Section 5. (a) Each unit owner shall be entitled to an undivided interest in the common areas and facilities in the percentage set forth in the master deed. Such percentage shall be in the approximate relation that the fair value of the unit on the date of the master deed bears to the then aggregate fair value of all the units.
(b)(1) The percentage of the undivided interest of each unit owner in the common areas and facilities as expressed in the master deed shall not be altered without the consent of all unit owners whose percentage of the undivided interest is materially affected, expressed in an amendment to the master deed duly recorded; provided, however, that the acceptance and recording of the unit deed shall constitute consent by the grantee to the addition of subsequent units or land or both to the condominium and consent to the reduction of the undivided interest of the unit owner if the master deed at the time of the recording of the unit deed provided for the addition of units or land and made possible an accurate determination of the alteration of each unit’s undivided interest that would result therefrom. The percentage of the undivided interest in the common areas and facilities shall not be separated from the unit to which it appertains, and shall be deemed to be conveyed or encumbered with the unit even though such interest is not expressly mentioned or described in the conveyance or other instrument. The granting of an easement by the organization of unit owners, or the designation or allocation by the organization of unit owners of limited common areas and facilities, or the withdrawal of a portion of the common areas and facilities, all as provided for in this subsection, shall not be deemed to affect or alter the undivided interest of any unit owner.
(2) The organization of unit owners, acting by and through its governing body, shall have the power and authority, as attorney in fact on behalf of all unit owners from time to time owning units in the condominium, except as provided in this subsection, to:(i) Grant, modify and amend easements through, over and under the common areas and facilities, and to accept easements benefiting the condominium, and portions thereof, and its unit owners, including, without limitation, easements for public or private utility purposes, as the governing body of the organization shall deem appropriate; provided, however, that the consent of at least 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have requested to be notified thereof, as provided in subsection (5) of section 4 is first obtained; and provided, further, that at the time of creation of such easement and at the time of modification or amendment of any such easement, such easement and any such modification or amendment shall not be inconsistent with the peaceful and lawful use and enjoyment of the common condominium property by the owners thereof. Such grant, modification, amendment, or acceptance shall be effective on the thirtieth day following the recording, within the chain of title of the master deed, of an instrument duly executed by the governing body of the organization of unit owners setting forth the grant, modification, amendment or acceptance with specificity, and reciting compliance with the requirements of this subsection.
(ii) Grant to or designate for any unit owner the right to use, whether exclusively or in common with other unit owners, any limited common area and facility, whether or not provided for in the master deed, upon such terms as deemed appropriate by the governing body of the organization of unit owners; provided, however, that consent has been obtained from (a) all owners and first mortgagees of units shown on the recorded condominium plans as immediately adjoining the limited common area or facility so designated and (b) 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have given notice of their desire to be notified thereof as provided in subsection (5) of section 4. In such case as the limited common area or facility shall directly and substantially impede access to any unit, the consent of the unit owner of such unit and its first mortgagee, if such mortgagee has requested notice as aforesaid, shall also be required. Such grant or designation, and the acceptance thereof, shall be effective 30 days following the recording, within the chain of title of the master deed or of the declaration of trust or by-laws, of an instrument duly executed by the governing body of the organization of unit owners and the grantee or designee and his mortgagees, which instrument shall accurately designate, depict and describe the area affected and the rights granted and designated, and shall recite compliance with the requirements of this subsection. Such grant or designation shall be considered an appurtenance to the subject unit and shall be deemed to be conveyed or encumbered with the unit even though such interest is not expressly mentioned or described in the conveyance or other instrument.
(iii) Extend, revive or grant rights to develop the condominium, including the right to add additional units or land to the condominium; provided, however, that the rights to add additional units are set forth in or specifically authorized by the master deed, and, notwithstanding any provision in section 19 to the contrary, withdraw any portion of the common area of the condominium upon which, at the time of said withdrawal, no unit has been added to the condominium in accordance with the master deed; and provided further, that said withdrawal is not specifically prohibited by the master deed. Any action taken pursuant to this subparagraph shall be taken upon such terms and conditions as the organization of unit owners may deem appropriate, including the method or formula by which the percentage interest of each unit is to be set in accordance with subsection (a) of section 5, or in accordance with another method which the organization of unit owners reasonably determines is fair and equitable under the circumstances, following such extension, revival, grant, addition or withdrawal if not specified in the master deed; provided further, that the consent thereto, including the terms and conditions thereof, of not less than 75 per cent of owners of units within the condominium, or such lower percentage, if any, as the master deed may provide, and 51 per cent of the number of all mortgagees holding first mortgages on units within the condominium who have given notice of their desire to be notified thereof as provided in subsection (5) of section 4 is obtained for such extension, revival, grant, addition or withdrawal. Any action taken pursuant to this subparagraph may be taken even if the time period for adding land, units or common facilities, or for withdrawal has expired. The withdrawal of common areas pursuant to this subparagraph shall not be deemed to affect the percentage interest of each unit. Such extension, revival, grant, addition or withdrawal shall be effective 30 days after the recording, within the chain of title of the master deed or of the declaration of trust or by-laws, of an instrument duly executed by the organization of unit owners setting forth accurately the extension, revival, grant, addition or withdrawal, and reciting compliance with the requirements of this subsection; and(iv) Sell, convey, lease or mortgage any rights or interest created as a result of exercise of rights established under subparagraph (iii); provided, however, that any proceeds obtained by the organization of unit owners as a result of such sale, conveyance, lease, or mortgage may be paid by the organization of unit owners for common expenses of the condominium, and otherwise shall be distributed in accordance with subparagraph (iii) of subsection (a) of section (6), or in accordance with another method which the organization of unit owners reasonably determines is fair and equitable under the circumstances. The provisions of paragraph (2) shall not affect the rights reserved by the declarant in the master deed except to the extent such rights have expired.
Any consent required by this subsection shall be deemed to be given if, upon written notice by certified and first class mail, provided by the governing body of the organization of unit owners of a proposed action hereunder, to the unit owner or mortgagee whose consent is required, such unit owner or mortgagee fails to object within 60 days of the date of mailing of such notice. The consent of each mortgagee, to the extent required hereunder, shall be counted separately as to each unit upon which such mortgagee holds a mortgage, based upon one vote for each unit. In no event may a consent required of a mortgagee under this subsection be withheld unless the interests of the mortgagee would be materially impaired by the action proposed. In the event of any conflict between the provisions of this subsection and of the master deed, trust or by-laws or other governing documents of the condominium, this subsection shall control. Any third party interested in title to said condominium or condominium unit or units may conclusively rely upon the recitation of compliance contained within any instrument recorded pursuant to this subsection.
(c) The common areas and facilities shall remain undivided and no unit owner or any other person shall bring any action for partition or division of any part thereof, except as provided in sections seventeen, eighteen and nineteen. The use of limited common areas and facilities may be designated by the organization of unit owners in the same manner as set forth herein relative to the granting of easements; provided, however, that such designation shall take the form of an amendment to the master deed, executed by said organization and the unit owner or owners to whom the designation is made, upon the written consent of the owner or owners of the unit or units directly abutting the limited common area and facility or whose unit or units are directly affected thereby and upon the payment by the unit owner to whom the designation is being granted of the reasonable costs of the preparation, execution and the recordation thereof. Said amendment shall be recorded in the appropriate registry of deeds or land registration office in the names of the parties and the condominium. Nothing contained herein shall be construed to require the consent of one hundred percent of the beneficial interest and the mortgagees to the granting of an easement by the organization of unit owners, or the designation or allocation of limited common areas and facilities. Except as expressly provided herein, the provisions hereof may not be varied by agreement and rights conferred hereby may not be waived. In the event of a conflict between this section and the master deed, or declaration of trust, or bylaws of any condominium submitted to the provisions of this chapter, the language hereof shall control. Any covenant or provision to the contrary shall be null and void.
(d) Each unit owner may use the common areas and facilities in accordance with their intended purposes without being deemed thereby to be hindering or encroaching upon the lawful rights of the other unit owners.
(e) The necessary work of maintenance, repair and replacement of the common areas and facilities shall be carried out as provided in the by-laws.
(f) Unless the by-laws otherwise provide, whenever the common areas and facilities shall require emergency works of repair, replacement or maintenance, any unit owner may undertake the same at his expense and recover his reasonable costs as a common expense.
(g) No work which would jeopardize the soundness or safety of the building shall be done in a unit or in the common areas and facilities unless in every such case the unanimous consent of all unit owners is first obtained.
Section 6. (a) (i) Except as provided in clause (ii) herein, all common expenses must be assessed against all units in accordance with their respective percentages of undivided interest in the common areas and facilities. The organization of unit owners shall have a lien on a unit for any common expense assessment levied against that unit from the time the assessment becomes due. Common expense assessments must be made at least annually, based on a budget adopted at least annually in accordance with the master deed, trust, or by-laws.
(ii) If any expense is incurred by the organization of unit owners as a result of the unit owner’s failure to abide by the requirements of this chapter or the requirements of the master deed, trust, by-laws, restrictions, rules or regulations, or by the misconduct of any unit owner, or his family members, tenants, or invitees, the organization of unit owners may assess that expense exclusively against the unit owner and such assessment shall constitute a lien against that unit from the time the assessment is due, and such assessment shall be enforceable as a common expense assessment under this chapter. Notwithstanding the provisions of clause (1), the organization of unit owners may assess the cost of maintaining, repairing or replacing a limited common area and facility, solely to the owner of the unit to which a limited common area and facility is appurtenant, allocated, or designated, and such assessment shall be enforceable as a common expense assessment under this chapter; in the alternative, the organization of unit owners may require the owner of the unit to which a limited common area and facility is appurtenant, allocated, or designated to maintain, repair, or replace such limited common area and facility without the intervention of the organization of unit owners. Notwithstanding the provisions of clause (i), the organization of unit owners may assess to each unit owner the direct cost of any energy conservation device installed in a unit, not already separately metered for water and utilities, including but not limited to the installation of separate water meters, low-flow toilets and showerheads, faucet aerators, windows and storm windows; provided, however, that a unit owner required to install such energy conservation device hereunder may appeal to the board of trustees of the organization of unit owners or if there is no board of trustees, the entity performing its duties. Said board or entity of said organization, in its sole and reasonable discretion, may grant to such unit owner a waiver of such required installation upon such terms and conditions as the organization of unit owners shall deem fit. The cost thereof shall be collected in the same manner as common expense assessments under this chapter. The organization of unit owners may assess to each unit owner his proportionate share of the costs for water and other utilities, as measured by the meter attached to the unit; provided however, that the board of trustees of the organization of unit owners receives the approval of the majority of unit owners in attendance at a meeting, for which notice was duly given and which was held for the purposes of issuing such an assessment. A unit owner assessed costs hereunder may appeal the assessment to said board or entity of said organization of unit owners. Such appeal shall be in writing and shall set forth a clear and concise statement of reasons for an exemption from the assessment for the unit owners. Said board or entity of said organization, in its sole and reasonable discretion, may grant to said unit owner a waiver of the assessment provided herein upon such terms and conditions as the organization of unit owners shall deem fit. In the event of a conflict between this subsection and the master deed, trust, or bylaws, and any amendment thereto, of any condominium submitted to the provisions of this chapter, the provisions of this subsection shall control. Notwithstanding the aforesaid, nothing contained herein shall be construed to be in conflict with the provisions of the state sanitary code. The organization of unit owners may also assess any fees, attorneys’ fees, charges, late charges, fines, costs of collection and enforcement, court costs, and interest charged pursuant to this chapter against the unit owner and such assessment shall constitute a lien against the unit from the time the assessment is due, and shall be enforceable as common expense assessments under this chapter.
(iii) Common profits shall be distributed among unit owners in the same manner as common expenses are charged to the unit owners.
(b) The unit owner shall be personally liable for all sums assessed for his share of the common expenses including late charges, fines, penalties, and interest assessed by the organization of unit owners and all costs of collection including attorneys’ fees, costs, and charges.
(c) When any portion of the unit owner’s share of the common expenses has been delinquent for at least sixty days subsequent to April 1, 1993, the organization of unit owners shall send a notice stating the amount of the delinquency to the unit owner by certified and first class mail. The organization of unit owners shall also send a notice stating the amount of the delinquency to the first mortgagee by certified and first class mail, provided, that the first mortgagee has informed the organization of unit owners of its name and mailing address. Furthermore, thirty days prior to the filing of an action by the organization of unit owners to enforce its lien for delinquent common expenses, the organization of unit owners shall send a notice stating its intention to file said action to the first mortgagee by certified and first class mail, provided that the first mortgagee has informed the organization of unit owners of its name and mailing address. In the event of the appointment of a receiver for the condominium pursuant to the provisions of chapter one hundred and eleven, the lien for charges imposed for the payment of expenses incurred by the receiver shall have priority over all other liens and mortgages, except municipal liens.
A lien under this section shall be enforced in the manner provided in sections five and five A of chapter two hundred and fifty-four. Such lien is prior to all other liens and encumbrances on a unit except (i) liens and encumbrances recorded before the recordation of the master deed, (ii) a first mortgage on the unit recorded before the date on which the assessment sought to be enforced became delinquent, and (iii) liens for real estate taxes and other municipal assessments or charges against the unit. This lien is also prior to the mortgages described in clause (ii) above to the extent of the common expense assessments based on the budget adopted pursuant to subsection (a) above which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien and to the extent of any costs and reasonable attorneys’ fees incurred in the action to enforce the lien, provided however, that the amount of attorneys’ fees incurred prior to January 1, 1993 which shall be prior to the mortgage described in clause (ii) above shall be limited to no more than two thousand and five hundred dollars, and provided further, that payment of the assessments with respect to such six month period, and to the extent of any costs or reasonable attorneys’ fees incurred in said action, shall serve to discharge such lien to the extent that such lien is prior to such mortgages described in clause (ii) above. The priority amount shall not include any amounts attributable to special assessments, late charges, fines, penalties, and interest assessed by the organization of unit owners. The failure of the organization of unit owners to send the first mortgagee either the notice of sixty day delinquency of common expenses, as described above, or the thirty day notice of intent to file an action to enforce the lien for delinquent common expenses, as described above, shall not affect the priority lien of the organization of unit owners for up to six months’ common expenses, but the priority amount shall not include any costs or attorneys’ fees incurred in the action to enforce the lien. This subsection does not affect the priority of mechanics’ or materialmen’s liens, or the priority of liens or other assessments made by the organization of unit owners. Recording of the master deed constitutes record notice and perfection of this lien; no further recordation of any claim of lien for assessment under this section is required.
Neither this section nor anything contained in sections five or five A of chapter two hundred and fifty-four shall be deemed to prohibit actions to recover sums for which this subsection creates a lien or to prohibit an organization of unit owners from taking a deed in lieu of enforcement of the lien created by this section.
The organization of unit owners shall take no further action to enforce its priority liens against a particular unit for common expenses if the first mortgagee agrees in writing that a priority lien exists without the requirement of instituting an action, as to such enforcement and pays, within 60 days of said writing, the following prescribed amounts: (1) so much of any delinquent assessments on that unit for regularly recurring budgeted common expenses over a period for six months immediately preceding the notice of delinquency that would constitute a priority amount if an action had been commenced on the date the organization gives its delinquency notice to the mortgagee; (2) costs and reasonable attorney’s fees incurred by the organization at the time of said writing by the first mortgagee to collect outstanding common expenses, including, but not limited to, costs and fees to ascertain the first mortgagee’s identity, examine title, and prepare and send to the unit owner and mortgagee the notices referred to in this paragraph; and to pay within 30 days of their due date; (3) all future common expenses, and special assessments other than special assessments for improvements made pursuant to section 18, assessed against that unit from the date of said notice until such time as the mortgagee’s mortgage is foreclosed or otherwise no longer encumbers the unit. The amount which the first mortgagee, if it so elects, would be required to pay to cause the organization not to proceed to enforce its priority liens shall not include any amounts attributable to late charges, fines, penalties, and interest assessed by the organization of unit owners and shall only include amounts attributable to special assessments due and payable after the giving of the delinquency notice pursuant to this paragraph, and then only to the extent the special assessment is not made with respect to any improvement authorized under section 18. If the amounts described in clauses (1) and (2) are not received within said 60 day period, or if the amount of any future assessments under clause (3) is not received within 30 days of their due date, the organization may proceed to take further action to enforce its liens without voiding the first mortgagee’s obligation to pay as provided in this subsection. The agreement by the first mortgagee to make payments in the amounts and for the duration specified in this paragraph shall be binding upon its successors and assigns and the successful bidder at any foreclosure but no such successor, assign, bidder or purchaser shall have any liability by virtue of the first mortgagee’s undertaking pursuant to this paragraph for any amount first arising, assessed or becoming due after the mortgage is foreclosed or otherwise no longer encumbers the unit. The first mortgagee shall not be liable for the amounts described in clauses (1), (2) and (3) which arise after the first mortgagee ceases to have an interest in the unit. Such amounts shall then become the obligation of the successors and assigns of the first mortgagee.
Within ten days after receipt of the written request of the first mortgagee, the organization of unit owners shall provide a written statement in reasonable detail of the actual dollar amounts the first mortgagee would be required to pay, if it so elected, to cause the organization of unit owners not to take further action to enforce its priority liens against the unit as provided in this section. The first mortgagee shall have 14 days following the mailing of said written statement to enter into the written agreement provided for in the previous paragraph. Unless the organization of unit owners has notice of a first mortgagee’s foreclosure sale actually scheduled within 30 days, the organization of unit owners shall take no further action to enforce its priority liens against a particular unit for common expenses for a period of 24 days from the receipt of the written request by the first mortgagee or 14 days following mailing of the written statement by the organization of unit owners, whichever is less. The failure of the organization of unit owners to send the written statement to the first mortgagee, as described above, shall not affect the priority lien of the organization of unit owners for up to six months’ common expenses, but the priority amount shall not include any costs or attorneys’ fees incurred to collect or enforce the liens.
If a unit owner fails to pay his share of the common expenses to the organization of unit owners for at least twenty-five days from the date it was due, the organization of unit owners may, as a separate and additional remedy, subject to the existing rights of a holder of a first mortgage of record, collect from any tenant renting the unit any rent then or thereafter due to the owner of such unit. Such organization shall apply such rent collected against the amount owed to it by the unit owner. Prior to taking any action hereunder, the organization of unit owners shall give to the delinquent unit owner written notice of its intent to collect the rent owed. Such notice shall be sent by any form of mail or other delivery requiring or providing a signed receipt, shall set forth the exact amount the organization of unit owners claims is due and owing by the unit owner and shall indicate the intent of the organization to collect such amount from rent, along with any other amounts which become due within the current fiscal year and which remain unpaid for twenty-five days after they become due. Further, a copy of such notice shall also be provided to any first mortgagee of record on such unit who has previously requested in writing that the organization of unit owners notify it of any delinquency in the payment amounts due to the organization by the owner of such unit.
The unit owner shall have ten days after receipt of such notice to file a written response with the organization of unit owners. Such response shall be signed under the pains and penalties of perjury; shall, in the case of monthly installments of common expenses, include proof, in the form of a cancelled check, receipt or other document, that the installment was paid or shall, in the case of any other charge, state in short and plain terms all grounds upon which said unit owner maintains that the amount claimed to be owed to the organization was incorrectly calculated or charged and shall state exactly what amount, if any, the unit owner admits he owes to the organization of unit owners.
If the unit owner fails to timely file a response in compliance with the foregoing requirements or admits in such response that he owes any amount to the organization of unit owners, the organization shall be entitled to immediately notify and direct each tenant renting such unit from such owner to thereafter pay all or a portion of the rent otherwise due by such unit owner to the organization, such rent or portion thereof to be limited to the lesser of: (i) the amount the organization claimed is due on its notice to the unit owner, if the unit owner failed to timely file a response in compliance with the requirements set forth above; or (ii) the amount such unit owner admitted was due in his timely filed response. The organization shall have a continuing right to collect any rent otherwise payable by the tenant to such unit owner, until such amount, plus any charges thereafter becoming due, are satisfied in full; provided, however, that nothing herein shall preclude the unit owner from seeking equitable relief from a court of competent jurisdiction or seeking a judicial determination of the amount owed; and, provided further, that nothing herein shall prevent the organization of unit owners from bringing an action under section five of chapter two hundred and fifty-four or to otherwise establish the amount owed to it by the unit owner or otherwise to seek and obtain an order requiring the tenant in such unit or tenants in other units owned by the unit owner in the condominium to pay to the organization rent otherwise due to the unit owner. If in any action brought to establish the amount owed by a unit owner to the organization, it is established that such unit owner knowingly misrepresented any material fact on any response filed pursuant to the provisions of this section, the organization shall be entitled to recover from such unit owner three times the amount determined to be owed by said unit owner at the time of his response. Further, the organization of unit owners shall be entitled to collect any charges thereafter becoming due and all of the organization’s costs, including reasonable attorneys’ fees, incurred in such action.
In no event shall a unit owner take any retaliatory action against any tenant who pays rent, or any portion thereof, to the organization of unit owners as provided in this section. The provisions of section eighteen of chapter one hundred and eighty-six and section two A of chapter two hundred and thirty-nine shall apply to any reprisal taken by a unit owner against a tenant who made or expressed an intention to make a payment to the organization pursuant to this section. Any waiver of the provisions of this section in any lease or rental agreement shall be void and unenforceable as against public policy.
Nothing herein shall be construed to prevent an organization of unit owners from adopting or amending its master deed, trust, by-laws or rules and regulations to provide additional protections, remedies, or rights for said organization.
To the extent that any first mortgagee of record is entitled to an assignment of rents and to the extent that it exercises its rights by written notice recorded at the registry of deeds or the registry district of the land court in which the property lies and by written notice sent by certified or registered mail to the presiding officer of the governing board of the condominium, then commencing with the next rental period, but not for any prior period, the first mortgagee may collect such rents. If the first mortgagee commences collection of such rents, it shall be obligated to pay all prospective expenses lawfully assessed by the organization of unit owners, including late fees, interest, late charges, collection costs, reasonable attorneys’ fees, assessments and special assessments and shall be subject to all other provisions of this chapter, the master deed, trust, by-laws and rules and regulations. Further, the first mortgagee shall be obligated to pay any such expenses or other charges which were, prior to the commencement of the collection of rents by the first mortgagee, due and payable to the organization, to the extent that the rent collected monthly by the first mortgagee exceeds the installment of principal and interest which was due monthly to the first mortgagee prior to default, the monthly installments of real estate taxes and mortgage insurance, the monthly share of common expenses, and the customary and ordinary unit repair, operation and maintenance costs, until such time as all arrearages due to the organization by the prior unit owner are paid in full. The organization shall have priority to receive funds collected from the tenant of a delinquent unit owner as to any junior lien holder.
Except as provided in section twenty-one, in the event of a conflict between this subsection and the master deed, trust, or by-laws, and any amendment thereto, the provisions of this subsection shall govern, notwithstanding the date on which the condominium was submitted to the provisions of this chapter.
(d) A statement from the organization of unit owners setting forth the amount of unpaid common expenses and any other sums which have been assessed against a unit owner, including a statement of the amount which the organization of unit owners claims is entitled to priority with respect to any mortgage under subsection (c), shall operate to discharge the unit from any lien for other sums then unpaid when recorded in the appropriate registry of deeds; provided, however, that any statement or document issuing from an unincorporated organization of unit owners may be recorded in a registry of deeds and if so recorded shall indicate and specify therein the book and page, or document number if registered land, within such registry of the instrument from which the signatory or signatories of the statement obtained authority to sign on behalf of the unincorporated organization. The statement shall be furnished within ten business days after receipt of a written request, upon payment of a reasonable fee, and shall be binding on the organization of unit owners, the governing body of the organization of unit owners, and every unit owner; provided, however, that no fee shall be required of any mortgagee, in connection with a foreclosure of a mortgage, who has given the organization notice of its intention to foreclose a mortgage upon the unit.
offset, deduction, or waiver prohibited Section 7. No unit owner may exempt himself from liability for his contribution toward the common expenses by waiver of the use or enjoyment of any of the common areas and facilities or by abandonment of the unit or otherwise; and no unit owner shall be entitled to an offset, deduction, or waiver of common expenses or other charges levied or lawfully assessed by the organization of unit owners.
Section 8. The master deed shall be recorded in the registry of deeds or the land registration office where the real estate is located and shall contain the following particulars:—(a) The statement required by section two.
(b) A description of the land on which the building or buildings and improvements are located.
(c) A description of each building stating the number of stories, the number of units if there is more than one and the principal materials of which it is constructed.
(d) The unit designation of each unit, and a statement of its location, approximate area, number of rooms, and immediate common area to which it has access, and any other data necessary for its proper identification.
(e) A description of the common areas and facilities and the proportionate interest of each unit therein.
(f) A set of the floor plans of the building or buildings, showing the layout, location, unit numbers and dimensions of the units, stating the name of the building or that it has not a name, and bearing the verified statement of a registered architect, registered professional engineer, or registered land surveyor, certifying that the plans fully and accurately depict the layout, location, unit number and dimensions of the units as built.
(g) A statement of the purposes for which the building and each of the units are intended and the restrictions, if any, as to their use.
(h) The method by which the master deed may be amended.
(i) The name and mailing address of the corporation, trust or association which has been formed and through which the unit owners will manage and regulate the condominium, together with a statement that such corporation, trust or association has enacted by-laws pursuant to this chapter. If a trust or unincorporated association is named, the master deed shall also set forth the names of the trustees or managing board. Changes in the trustees or members of the managing board, as the case may be, or changes in the mailing address of the organization of unit owners subsequent to the recording of the master deed, shall be stated in a certificate signed and acknowledged by at least one trustee or member of the managing board then appearing of record, or by a vote of the unit owners, and signed and acknowledged by one of them, and such certificate or vote shall be recorded in the registry of deeds or land registration office where the real estate is located. Persons may rely in good faith upon the master deed, declaration of trust, or the most recently recorded certificate or vote as to the names of the trustees or members of the managing board and the address of the organization of unit owners. Notices under this chapter sent in writing to the address listed in the master deed, declaration of trust, or the most recently recorded certificate or vote, if relied upon in good faith, shall be deemed sufficiently given; provided, however, that the person or entity sending the notice has complied with other requirements, if any, of this chapter.
(j) The name of the lessor of each lease which is submitted to the provisions of this chapter and the recording data for each such lease or notice thereof.
Section 8A. (a) The consent of every lessor of each lease which is submitted to the provisions of this chapter shall be recorded and shall provide:(1) the recording data for the lease or the notice thereof, and in the latter case, a statement of where the complete lease may be inspected;(2) the date on which the lease is scheduled to expire, including a provision in said lease requiring the lessor to give a twelve month written notice of said date of expiration to each unit owner;(3) a legally sufficient description of the real estate subject to the lease;(4) any right of the unit owners to redeem the reversion and the manner whereby those rights may be exercised, or a statement that they do not have those rights;(5) any right of the unit owners to remove any improvements within a reasonable time after the expiration or termination of the lease, or a statement that they do not have those rights; and(6) any rights of the unit owners to renew the lease and the conditions of any renewal, or a statement that they do not have those rights.
(b) After the consent of a lessor is recorded, neither the lessor nor any successor in interest of the lessor may terminate the leasehold interest of a unit owner, who makes timely payment or tender of said timely payment by certified mail of such unit owner’s share of the rent and otherwise complies with all covenants and conditions which, if violated, would entitle the lessor to terminate the lease. A unit owner’s leasehold interest is not affected by failure of any other person to pay rent or fulfill any other covenant or condition.
(c) Acquisition of the leasehold interest of any unit owner by the owner of the reversion or remainder does not merge the leasehold and fee simple interests unless the leasehold interests of all unit owners subject to that reversion or remainder are acquired.
(d) If the expiration or termination of a lease reduces the number of units in a condominium, the common element interests, votes in the association, and common expense liabilities shall be reallocated among the remaining unit owners in proportion to their respective percentage interests. Reallocations shall be confirmed by a duly recorded amendment of the master deed.
(e) The rent and all other amounts payable under the lease shall be declared common expenses.
(f) Prior to the expiration of said lease, the lessor may obtain three independent real estate appraisals of said parcel and may offer the right to purchase said parcel for the average of the three appraisals to the organization of unit owners. In the event that the organization of unit owners chooses not to purchase such parcel, said organization may negotiate a renewal of said lease for a term of not less than sixty years.
Section 9. Deeds of units shall include the following particulars:—(a) An indication that the deed relates to a condominium and is subject to the provisions of this chapter. If the condominium relates to a lease which is submitted to the provisions of this chapter, the name of the condominium shall contain the word “Lease” or “Leasehold” and the deed or assignment or each unit shall indicate that the condominium relates to a lease.
(b) A description of the land as provided in section eight, or the post office address of the property, in either case including the book, page and date of recording of the master deed.
(c) The unit designation of the unit in the master deed and any other data necessary for its proper identification.
(d) A statement of the use for which the unit is intended and the restrictions, if any, on its use.
(e) The undivided interest appertaining to the unit in the common areas and facilities.
(f) Any further provisions which the grantor and grantee may deem desirable to set forth, consistent with the master deed and this chapter.
The first deed of each unit shall, in addition, have attached thereto, as part thereof, a copy of the portion or portions of the plans theretofore filed with the master deed to which copy shall be affixed the verified statement of a registered architect, registered professional engineer or registered land surveyor certifying that they show the unit designation of the unit being conveyed and of immediately adjoining units, and that they fully and accurately depict the layout of the unit, its location, dimensions, approximate area, main entrance and immediate common area to which it has access, as built.
Section 1. This chapter may be cited as the Real Estate Time-Share Act.
Section 10. This chapter being intended as a unified coverage of its subject matter, no part of it shall be construed to be impliedly repealed in whole or in part by subsequent legislation if such construction can reasonably be avoided.
amendments Section 11. If all of the documents constituting the project instrument are recorded, time-shares shall not be created in any unit in a project unless expressly permitted by the project instrument. No amendment to a project instrument which is recorded shall permit the creation of time-shares unless the owners of at least eighty per cent of the units, or any larger vote required by the project instrument or by law, consent to such amendment.
time-shares in single property; recording; contents Section 12. (a) Except as provided in subsection (b), more than twelve time-shares may be created in a single time-share property only by a time-share instrument recorded in the registry of deeds or land registration office for the district in which the time-share unit is situated. Said instrument shall contain or provide for the following:(1) a legally sufficient description of the time-share property and the name or other identification of the project, if any, within which it is situated;(2) the name of the registry district or land registration office in which the time-share property is situated;(3) identification of time periods by letter, name, number, or combination thereof;(4) the time-share expense liability and any voting rights assigned to each time-share;(5) if additional units may become part of the time-share property, the method of doing so and the formula for allocation and reallocation of the time-share expense liabilities and any votes;(6) the method of designating the insurance trustee required under section twenty-six;(7) allocation of time for maintenance of the time-share units;(8) provisions for management by a managing entity or by the time-share owners;(9) if all of the time-shares are time-share licenses, the rights of a licensee, if his license is terminated, with respect to any of the property his license affects, or a statement that he has no rights; and(10) any requirements for amendments to the time-share instrument.
(b) If a time-share license applies to units in more than one time-share property, the time-share instrument creating the license need not comply with the provisions of clauses (1) to (7), inclusive, of subsection (a).
liabilities; alteration Section 13. (a) The time-share instrument shall state the amount of or formula used to determine any time-share expense liability allocated to each time-share.
(b) If the time-share instrument provides for voting, it shall allocate votes to each time-share unit and to each time-share estate and may allocate votes to any time-share license. It shall not allocate any votes to any other property or to any person who is not a time-share owner. The number of votes allocated to each time-share shall be equal for all time-shares or proportionate to each time-share’s value as estimated by the developer, time-share expense liability, or unit size. The time-share instrument may specify some matters as to which the votes shall be equal and others as to which they shall be proportionate.
(c) Except as otherwise provided pursuant to clause (5) of subsection (a) of section twelve, the votes and time-share expense liabilities allocated to a time-share shall not be altered without the unanimous consent of all time-share owners entitled to vote and voting at a meeting in which at least eighty per cent of the votes allocated to time-shares are cast or in an initiative or referendum in which at least eighty per cent of said votes are cast.
(d) Except for minor variations due to rounding, the sum of the time-share expense liabilities assigned to all time-shares shall equal one if stated as fractions or one hundred per cent if stated as percentages. In the event of discrepancy between the time-share liabilities or votes allocated to a time-share and the result derived from the application of the formulas, the allocated time-share expense liability or vote prevails.
Section 14. No action for partition of a time-share unit may be maintained except as permitted by the time-share instrument or by subsection (d) of section fifteen.
Section 15. (a) This section shall apply to time-share licenses only to the extent expressly provided by the time-share instrument.
(b) All time-shares in a time-share property may be terminated only by agreement of the time-share owners having at least eighty per cent of the time-shares, or such larger vote as the time-share instrument may specify.
(c) An agreement to terminate all time-shares in a time-share property shall be evidenced by the execution, in the same manner as a deed, of a termination agreement, or ratifications thereof, by the requisite number of time-share owners. The termination agreement shall specify a date after which it shall be void unless it is recorded on or before said date. A termination agreement and all ratifications thereof shall be recorded in the registry of deeds or land registration office in every district in which a portion of the time-share property is situated, and shall be effective only upon such recording.
(d) Unless the termination agreement sets forth the material terms of a contract or proposed contract under which an estate or interest in each time-share unit equal to the sum of the time-shares therein is to be sold and designates a trustee to effect the sale, title to an estate or interest in each time-share unit equal to the sum of the time-shares therein vests upon termination in the time-share owners thereof in proportion to their respective interests as provided in subsection (h), and liens on the time-shares shall attach to and encumber said interests. Any co-owner of said estate or interest in a unit may thereafter maintain an action for partition or for allotment or sale in lieu of partition.
(e) If the termination agreement sets forth the material terms of a contract or proposed contract under which an estate or interest in each time-share unit equal to the sum of the time-shares therein is to be sold and designates a trustee to effect the sale, title to said estate or interest vests upon termination in the trustee for the benefit of the time-share owners, to be transferred pursuant to the contract. Proceeds of the sale shall be distributed to time-share owners and lien holders as their interests may appear, in proportion to the respective interests of the time-share owners as provided in subsection (h).
(f) Except as otherwise provided in the termination agreement, so long as the former time-share owners or their trustee hold title to an estate or interest equal to the sum of the time-shares, each former time-share owner and his successors in interest have the same rights with respect to occupancy in the former time-share unit that he would have had if termination had not occurred, together with the same liabilities and other obligations imposed by this chapter or the time-share instrument.
(g) After termination of all time-shares in a time-share property and adequate provision for the payment of the claims of the creditors for time-share expenses, distribution of (i) the proceeds of any sale pursuant to this section, (ii) the proceeds of any personalty held for the use and benefit of the former time-share owners, and (iii) any other funds held for the use and benefit of the former time-share owners, shall be made to the former time-share owners and their successors in interest in proportion to their respective interests as provided in subsection (h). Following termination, creditors of the association holding liens perfected against the time-share property prior to the termination may enforce said liens in the same manner as any other lien holder. All other creditors of the association shall be treated as if they had perfected liens on the time-share property immediately prior to termination.
(h) The time-share instrument may specify the respective fractional or percentage interest in the estate or interest in each unit equal to the sum of the time-shares therein that will be owned by each former time-share owner upon termination of the time-shares. If the time-share instrument fails to so specify, an appraisal shall be made of the fair market value of each time-share by one or more impartial qualified appraisers selected either by the trustee designated in the termination agreement, or by the managing entity if no trustee was so designated. Said appraisal shall be made not more than one hundred and eighty days prior to the termination. Said appraisal shall also state the corresponding fractional or percentage interests calculated in proportion to said values and in accordance with this subsection. A notice stating all of said values and corresponding interests and the return address of the sender shall be sent by registered mail, return receipt requested, by the managing entity or by the trustee designated in the termination agreements, to all of the time-share owners. Said appraisal governs the fractional or percentage interest of each estate or interest unless (i) at least twenty-five per cent of the time-share owners deliver, within sixty days after the date the notices were mailed, written disapprovals to the return address of the sender of the notice, or (ii) the final judgment of a court of competent jurisdiction, entered during or after said period, holds that the appraisal shall be set aside. The appraisal and the calculation of interests shall be made in accordance with the following:(1) If the termination agreement sets forth the material terms of a contract or proposed contract for the sale of the estate or interest equal to the sum of the time-shares, each time-share conferring a right of occupancy during a limited number of time periods shall be appraised as if the time until the date specified for the conveyance of the property had elapsed. If no such date is specified, each time-share conferring a right of occupancy during a limited number of time periods shall be appraised as if the time until the date specified pursuant to subsection (c) had elapsed.
(2) The interest of each time-share owner is the value of the time-share he owned divided by the sum of the values of all time-shares in the unit or units to which his time-share applies.
(i) Foreclosure or enforcement of a lien or encumbrance against all of the time-shares in a time-share property does not of itself terminate said time-shares.
Section 16. A developer may maintain sales offices, management offices, and models in the time-share property only if the time-share instrument so provides and specifies the rights of a developer with regard to the number, size, location, and relocation thereof. He may maintain signs on the property advertising the property. The provisions of this section shall be subject to other provisions of law, local ordinances or by-laws and the project instruments.
developer, or managing entity Section 17. The time-share instrument may require that all or a specified number or percentage of the mortgagees of units or time-shares approve specified actions of the unit owners, time-share owners, developer, or managing entity as a condition to the effectiveness of said actions, but a requirement for approval shall not operate to (i) deny or delegate control over the general administrative affairs of any association by the unit owners, time-share owners, or both, or their elected representatives, or (ii) to prevent any association from commencing, intervening in, or settling any litigation or proceeding, or receiving and distributing any insurance proceeds pursuant to section twenty-six.
contents Section 18. A time-share estate, coupled with a freehold estate, shall be evidenced by a time-share deed, and a time-share estate, coupled with an estate for years shall be evidenced by a notice of time-share lease. A time-share license shall be evidenced by a notice of time-share license. Said deed, notice of time-share lease or notice of time-share license shall be recorded in the registry of deeds or land registration office for the district in which the time-share property is located; provided however, that the number of time-shares in a time-share property is more than twelve. The time-share deed shall include the information required by law to be set forth in a deed of real property and the notice of time-share lease or notice of time-share license shall include the information required by law to be set forth in a notice of lease. In addition such deed or notice shall include:(1) a statement that the instrument relates to a time-share and is subject to the provisions of this chapter;(2) a description of the time-share including designation of the unit or units, and the time-share property in which it is located;(3) the book, page and date of recording of all time-share instruments denominating, creating or regulating the time-share;(4) a statement of the use for which the time-share is intended and the restrictions, if any, on its use;(5) the time-share expense liability and any voting rights assigned to the time-share; and(6) any further provisions which the parties may deem desirable to set forth, consistent with the time-share instruments and the provisions of this chapter.
Section 19. (a) If the number of time-shares in a time-share property is more than twelve, the developer, before the first transfer of a time-share, shall create or provide a managing entity to manage the time-share property. The managing entity may be (i) a manager, who may be the developer, or (ii) an association, which shall be a profit or nonprofit corporation or an unincorporated association, the membership of which shall at all times consist exclusively of all the time-share owners. If the time-share property is part of a project containing time-share units and other units, the manager may be the entity that governs the project. If the number of time-shares in the time-share property is twelve or fewer and there is no managing entity, the time-share owners may form an association meeting the requirements specified above.
(b) In the absence of a managing entity required by this section, a court upon application of a party in interest, including a time-share owner or a lien holder, may appoint and prescribe the powers of a managing entity.
Section 2. As used in this chapter, the following words shall, unless the context otherwise requires, have the following meanings:—“Affiliate of a developer”, any person who controls, is controlled by, or is under common control with a developer. A person controls a developer if the person is (i) a general partner, officer, director, or employer of the developer, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing, more than twenty per cent of the voting interest in the developer, (iii) controls in any manner the election of a majority of the directors of the developer, or (iv) has contributed more than twenty per cent of the capital of the developer. A person is controlled by a developer if the developer is (i) a general partner, officer, director, or employer of the person, (ii) directly or indirectly or acting in concert with one or more other persons, or through one or more subsidiaries, owns, controls, holds with power to vote, or holds proxies representing more than twenty per cent of the voting interest in the person, (iii) controls in any manner the election of a majority of the directors of the person, or (iv) has contributed more than twenty per cent of the capital of the person. Control does not exist if the powers described in this paragraph are held solely as security for an obligation and are not exercised.
“Association”, the association organized under the provisions of subsection (a) of section nineteen.
“Business day”, any calendar day except Saturday or Sunday, or day on which a federal, state or county holiday is celebrated.
“Conversion building”, a building that at any time before the disposition of any time-share was occupied wholly or partially by persons other than purchasers and persons who occupied with the consent of purchasers.
“Developer”, any person who (i) offers to dispose of or disposes of his interest in a time-share not previously disposed of, or (ii) succeeds under section twenty-two to any special developer right.
“Dispose” or “disposition”, a voluntary transfer of any legal or equitable interest in a time-share, but does not include the transfer or release of a security interest.
“Enrolled”, paid membership in an exchange program or membership in an exchange program evidenced by written acceptance or confirmation of membership.
“Exchange company”, any person owning or operating an exchange program.
“Exchange program”, any program which allows for the assignment or exchange of time-share occupancy rights between or among time-share owners in the same or other time-share properties.
“Manager”, any person, other than all time-share owners or the association, designated in or employed pursuant to the time-share instrument or project instrument to manage the time-share units.
“Managing entity”, the manager or, if there is no manager, the association.
“Multi-location plan”, a time-share plan encompassing more than one time-share property pursuant to which time-share owners may, by reservation or other similar procedure, occupy time-share units in more than one time-share property.
“Multi-location developer”, a developer creating or selling its own time-shares in a multi-location plan.
“Offering”, any advertisement, inducement, solicitation, or attempt to encourage any person to acquire a time-share, other than as security for an obligation. An advertisement in a newspaper or other periodical of general circulation, or in any broadcast medium to the general public, of a time-share in a unit not located in the commonwealth, is not an offering if the advertisement states that an offering may be made only in compliance with the law of the jurisdiction in which the unit or units are located. An offering to the “general public” shall mean any offering to twenty-five or more people.
“Person”, a natural person, corporation, government, governmental subdivision or agency, business trust, estate, trust, partnership, association, joint venture, or other legal or commercial entity. In the case of a nominee trust, however, “person” means the beneficiary of the trust as well as the trust and the trustee.
“Project”, real property, subject to a project instrument, containing more than one unit. A project may include units that are not time-share units.
“Project instrument”, one or more recordable documents, by whatever name denominated, applying to the whole of a project and containing restrictions or covenants regulating the use, occupancy, or disposition of units in a project, including any amendments to the document, but excluding any law, ordinance, by-law, or governmental regulation.
“Purchaser”, any person, other than a developer, who by means of a voluntary transfer acquires a legal or equitable interest in a time-share other than as security for an obligation.
“Sales contract”, the written contract which provides for the sale by the developer and the purchase by the purchaser of one or more time-shares in a time-share property.
“Time-share”, a time-share estate or a time-share license.
“Time-share estate”, a right to the occupancy of a unit or any of several units during five or more separated time periods over a period of at least five years, including extension or renewal options, coupled with a freehold estate or an estate for years in a time-share property or a specified portion thereof.
“Time-share expenses”, expenditures, fees, charges, or liabilities (i) incurred with respect to the time-shares or by or on behalf of all time-share owners in one time-share property, and (ii) imposed on the time-share units by the entity governing a project of which the time-share property is a part, together with any allocations to reserves, but excluding purchase money payable for time-shares. Time-share expenses shall include real estate taxes and other governmental assessments and charges with respect to the time-share property in which the time-shares are located.
“Time-share instrument”, one or more documents, by whatever name denominated, creating or regulating time-shares.
“Time-share liability”, the liability for time-share expenses allocated to each time-share pursuant to paragraph (4) of subsection (a) of section twelve.
“Time-share license”, a right to the occupancy of a unit or any of several units during five or more separated time periods not coupled with a freehold estate or an estate for years.
“Time-share owner”, a person who is an owner or co-owner of a time-share other than as security for an obligation.
“Time-share plan”, the rights, obligations and program created by the time-share instrument for a time-share property or, in the case of a multi-location plan, for time-share properties.
“Time-share property”, one or more time-share units subject to the same time-share instrument, together with any other real estate or rights therein appurtenant to those units.
“Time-share unit”, a unit in which time-shares exist.
“Unit”, real property, or a portion thereof, designated for separate use.
Section 20. (a) Subject to the provisions of subsection (b) and the time-share instrument, the association, even if unincorporated, may:(1) adopt and amend by-laws, rules, and regulations;(2) adopt and amend budgets for revenues, expenditures, and reserves and collect assessments for time-share expenses from time-share owners;(3) hire and discharge managing agents and other agents, employees, and independent contractors;(4) institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more time-share owners on matters affecting the time-share property or time-shares;(5) make contracts and incur liabilities;(6) Provide for and regulate the use, maintenance, repair, replacement, and modification of the time-share property;(7) cause additional improvements to be made to the time-share property;(8) impose charges for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the time-share instrument, by-laws, and rules or regulations of the association;(9) impose reasonable charges for the preparation of resale certificates required by section forty-two or statements of unpaid assessments;(10) exercise any other powers conferred by the time-share instrument or by-laws;(11) impose and receive payments, fees, or charges for the use, rental, or operation of the time-share property, and for services provided to time-share owners;(12) acquire, hold, encumber, and convey in its own name any right, title, or interest to real or personal property;(13) assign its right to future income, including the right to receive time-share expense assessments, but only to the extent the time-share instrument expressly so provides;(14) provide for the indemnification of its directors and officers and maintain directors’ and officers’ liability insurance; provided, however, that no indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interests of the time-share property;(15) exercise all other powers that may be exercised by legal entities of the same type as the association; and(16) exercise any other powers necessary and proper for the governance and operation of the association.
(b) The time-share instrument may not impose limitations on the power of the association to deal with the developer which are more restrictive than the limitations imposed on the power of the association to deal with other persons.
(c) Except as otherwise provided in the time-share instrument, the manager, to the extent permitted by the management contract, may exercise the powers specified in clauses (1) to (11), inclusive, of subsection (a).
(d) If the time-share property is part of a project, this section and section twenty-one shall not confer any powers on the managing entity, the developer, or the time-share owners with respect to any portion of the project other than the time-share property.
Section 21. The developer shall have the duties imposed on the managing entity by this chapter and the powers set forth in clauses (1) to (11), inclusive, of subsection (a) of section twenty until a managing entity is provided or the developer and his affiliates own no estate or interest in the time-share property, whichever first occurs. Thereafter, if there is no managing entity and the number of time-shares in the time-share property is twelve or fewer, the time-share owners shall have said powers subject to any provisions of the time-share instrument relating to the manner of the exercise thereof and shall have the responsibilities and liabilities of an association for the purposes of sections twenty-four and twenty-five. To the extent that the time-share instrument is silent with respect to the manner of exercise of any of said powers, the time-share owner may exercise said powers only by unanimous action.
Section 22. (a) For the purposes of this section, “special developer right” shall mean a right reserved for the benefit of a developer to add more units to a time-share property to maintain sales offices, management offices, models, and signs or to appoint, control, or serve as the managing entity. No special developer right created or reserved under this chapter may be transferred except by an instrument evidencing the transfer recorded in the registry of deeds or land registration office for every district in which any portion of the time-share property is located. The instrument shall not be effective unless it is also executed by the transferee.
(b) Upon transfer of a special developer right, the liability of a transferor developer shall be as follows:(1) A transferor shall not be relieved of any obligation or liability arising before the transfer and shall remain liable for warranty obligations imposed upon him by this chapter. Lack of privity shall not deprive any time-share owner of standing to maintain an action to enforce any obligation of the transferor.
(2) If a successor to any special developer right is an affiliate of a developer, the transferor shall be jointly and severally liable with the successor for any obligations or liabilities of the successor relating to the time-share property.
(3) If a transferor retains any special developer right, but transfers other special developer rights to a successor who is not an affiliate of the developer, the transferor shall be liable for any obligations or liabilities imposed on a developer either by this chapter or by the time-share instrument relating to the retained special developer rights and arising after the transfer.
(4) A transferor shall not be liable for any act or omission or any breach of the contractual or warranty obligation arising from the exercise of a special developer right by a successor developer who is not an affiliate of the transferor.
(c) Unless otherwise provided in a mortgage instrument, in case of foreclosure of a mortgage, tax sale, judicial sale, or sale under bankruptcy code or receivership proceedings, of any time-shares owned by a developer in the time-share property, a person acquiring title to all the time-shares being foreclosed or sold succeeds to all special developer rights, or only to any rights reserved in the time-share instrument pursuant to section sixteen and held by said developer but only upon his request. The judgment or instrument conveying title shall provide for transfer of only the special developer rights requested.
(d) Upon foreclosure, tax sale, judicial sale, or sale under bankruptcy code or receivership proceedings, of all time-shares in a property owned by a developer(1) the right to appoint, control, or serve as the managing entity shall terminate unless the judgment or instrument conveying title provides for transfer of all special developer rights to a successor developer; and(2) the developer shall cease to have any other special developer rights.
(e) The liabilities and obligations of a person who succeeds to a special developer right shall be as follows:(1) a successor to any special developer right who is an affiliate of a developer shall be subject to all obligations and liabilities imposed on the transferor by this chapter or by the time-share instrument;(2) a successor to any special developer right, other than a successor described in clauses (3) or (4), who is not an affiliate of a developer, shall be subject to all obligations and liabilities imposed by this chapter or the time-share instrument:(i) on a developer, which relate to his exercise or non-exercise of special developer rights; or(ii) on his transferor other than:(A) misrepresentation by any previous developer;(B) warranty obligations on improvements made by any previous developer or made before the property became a time-share property;(C) breach of any fiduciary obligation by any previous developer or his appointees; or(D) any liability or obligation imposed on the transferor as a result of the transferor’s acts or omissions after the transfer.
(3) a successor to only a right to maintain sales offices, management offices, models, and signs, if he is not an affiliate of a developer, may not exercise any other special developer right and shall not be subject to any liability or obligation as a developer, except the obligation to provide a public offering statement and any liability arising as a result thereof; and(4) a successor to all special developer rights held by his transferor who is not an affiliate of said developer and who has succeeded to said rights pursuant to a deed in lieu of foreclosure or a judgment or instrument conveying title to the time-shares pursuant to subsection (c) may declare his intention to hold said rights solely for transfer to another person in an instrument recorded in the appropriate registry of deeds or land registration office. Thereafter, until transferring all special developer rights to any person acquiring title to any time-share owned by the successor, or until recording an instrument permitting exercise of all said rights, said successor may not exercise any of said rights other than any right held by his transferor to appoint, control, or serve as the managing entity, and any attempted exercise of said rights shall be void. So long as a successor may not exercise special developer rights under this subsection, he shall not be subject to any liability or obligation as a developer other than liability for his acts and omissions in appointing, controlling, or serving as the managing entity.
(f) Nothing in this section shall subject any successor to a special developer right to any claims against or other obligations of a transferor developer, other than claims and obligations arising under this chapter or the time-share instrument.
managing entity; termination by association or owners Section 23. (a) If, before the developer ceases to appoint, control or serve as the managing entity, there is entered into (i) any management contract, employment contract, or lease of recreational or parking areas or facilities between the managing entity and the developer or an affiliate of the developer, or (ii) any other contract or lease, between the managing entity and the developer or an affiliate of the developer, or (iii) any contract or lease that is not bona fide or was unconscionable to the time-share owners at the time entered into under the circumstances then prevailing, the contract or lease may be terminated without penalty by the association or, if there is no association, the time-share owners at any time after the developer ceases to appoint, control or serve as the managing entity, upon not less than ninety days’ notice to the other party. This subsection shall not apply to any lease the termination of which would terminate the time-share property or reduce its size, unless the real estate subject to said lease was included in the property for the purpose of avoiding the right to terminate a lease under this section.
(b) If there is no association, any time-share owner individually or on behalf of the class of time-share owners may maintain an action for appropriate relief.
alteration of unit by owner Section 24. Except to the extent otherwise provided by the time-share instrument, the managing entity shall be responsible for maintenance, repair, and replacement of the time-share units and any personal property available for use by time-share owners in conjunction therewith, other than personal property separately owned by a time-share owner. Each time-share owner shall afford access to his time-share unit reasonably necessary for said purposes, but if damage is inflicted on a time-share unit to which access is taken, the managing entity shall be responsible for its prompt repair. Subject to the provisions of the time-share instrument and other provisions of law, a time-share owner shall not alter or change the appearance of a time-share unit without the consent of the managing entity.
developers, or associations; tolling of limitations; judgments against associations Section 25. (a) A time-share owner shall be personally liable for his acts and omissions and those of his employees and agents other than the managing entity.
(b) An action shall not be maintained against a time-share owner, nor shall a time-share owner be precluded from maintaining an action, solely because he owns a time-share or is an officer, director, or member of the association.
(c) An action in tort alleging a wrong done by a developer, a managing entity selected by the developer or his appointees, or an agent or employee of either, in connection with any portion of the property which the developer or the managing entity has the responsibility to maintain, shall not be maintained against the association or any other time-share owner other than the developer. Other actions in tort alleging a wrong done by an association or by an agent or employee of the association or an action arising from a contract made by or on behalf of the association shall be maintained only against the association. If the tort or breach of contract occurred during any period of developer control, the developer shall be subject to liability for all unreimbursed losses suffered by the association or time-share owners as a result, including costs and reasonable attorney’s fees. The operation of any statute of limitations affecting the right of action of the association or time-share owners under this section shall be tolled until the period of developer control terminates. A time-share owner shall not be precluded from maintaining an action contemplated by this subsection because he is a time-share owner or a member or officer of the association.
(d) A judgment for money against an association, if recorded in the registry of deeds or land registration office for the district in which the time-share property is located, shall be a lien against all of the time-shares, but no other property of a time-share owner shall be subject to the claims of creditors of the association.
(e) A judgment against the association shall be indexed in the name of the association.
Section 26. (a) Commencing not later than the time a developer offers a time-share for sale in a time-share property in which the number of time-shares is more than twelve, the managing entity shall maintain, to the extent reasonably available and applicable and not otherwise agreed by the time-share owners or provided by the developer or by a person managing a project of which the time-share property is a part:(1) fire, extended coverage and all risk insurance on the time-share property and any personal property available for use by time-share owners in conjunction therewith, other than personal property separately owned by a time-share owner, in a total amount, after application of any deductibles, of not less than ninety per cent of the full replacement value of the insured property, exclusive of land excavations, foundations, and other items normally excluded from property policies; and(2) comprehensive public liability insurance, including medical payments insurance, in an amount determined by the managing entity but not less than any amount specified in the time-share instrument, covering all occurrences commonly insured against, for death, bodily injury, and property damage arising out of or in connection with the use, ownership, or maintenance of the time-share property and time-share units.
(b) If the insurance described in subsection (a) is not reasonably available, the managing entity promptly shall cause notice of said fact to be hand-delivered or sent by prepaid mail to all time-share owners. The managing entity shall make copies of all insurance policies available for inspection by the time-share owners during normal business hours. The time-share instrument may require the managing entity to maintain any other insurance, and the managing entity in any event may maintain any other insurance deemed appropriate.
(c) Each insurance policy maintained pursuant to subsection (a) shall provide that:(1) each time-share owner is an insured person under the policy whether designated as an insured by name individually or as part of a named group or otherwise, as his interest may appear;(2) the insurer waives its right to subrogation under the policy against any time-share owner or members of his household;(3) no act or omission of any time-share owner, unless acting within the scope of his authority on behalf of an association, will void the policy or be a condition to recovery by any other person under the policy; and(4) if, at the time of a loss under the policy, there is other insurance in the name of a time-share owner covering the same risk covered by the policy, the policy maintained pursuant to subsection (a) shall be primary insurance not contributing with the other insurance, and other insurance in the name of a time-share owner shall apply only to loss in excess of the primary coverage.
(d) Unless the insurance required by clause (1) of subsection (a) is provided by a person managing a project of which the time-share property is a part, any loss covered by said insurance shall be adjusted with, and the insurance proceeds from said loss payable to, the insurance trustee, who may be a party in interest, designated in accordance with the time-share instrument. If no insurance trustee has been designated or if the designated trustee fails to serve, the managing entity shall be the insurance trustee. The insurance trustee shall hold any insurance proceeds in trust for time-share owners and lien holders as their interests may appear and be determined in accordance with the provisions of section fifteen. Subject to the provisions of subsection (g), the proceeds shall be disbursed for the repair or restoration of the property, and time-share owners and lien holders shall not be entitled to receive payment of any portion of the proceeds unless there is (i) a surplus of proceeds after the property has been completely repaired or restored, or (ii) a termination pursuant to section fifteen.
(e) An insurance policy issued pursuant to subsection (a) shall not prevent a time-share owner from obtaining insurance for his own benefit.
(f) An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to any association and, upon written request, to any time-share owner or mortgagee. The insurance may not be cancelled until thirty days after notice of the proposed cancellation has been mailed to any managing entity and each person to whom a certificate or memorandum of insurance has been issued, at their last known address.
(g) Any portion of the time-share property damaged or destroyed shall be repaired or replaced promptly by the managing entity unless (i) another person repairs or replaces it, (ii) there is a termination, (iii) repair or replacement would be illegal, (iv) eighty per cent of the time-share owners, including every owner of a time-share in a time-share unit that will not be rebuilt, vote not to rebuild, or (v) a decision not to rebuild the damaged property is made by another person empowered to make said decision. The cost of repair or replacement in excess of insurance proceeds and reserves shall be a time-share expense. If the entire property need not be repaired or replaced, unless the time-share instrument provides otherwise, (i) the insurance proceeds attributable to the damaged area shall be used to restore the damaged area to a condition comparable to the remainder of the property, and (ii) the insurance proceeds attributable to time-share units that are not rebuilt shall be distributed as if said units constituted a time-share property in which all time-shares had been terminated under section fifteen.
(h) The provisions of this section may be varied or waived in the case of a time-share property in which none of the time-share units may be used as dwellings or for recreational purposes.
Section 27. Unless otherwise provided in the time-share instrument, the by-laws, rules or regulations of the time-share association or otherwise determined by the time-share owners at a meeting of time-share owners or pursuant to either section thirty-three or thirty-four, any surplus funds derived from the time-share owners or from property belonging to said time-share owners or their association and held by a managing entity remaining after payment of or provision for time-share expenses and any required reserves shall be paid to the time-share owners in proportion to their time-share expense liabilities or credited to them to reduce their future time-share expense assessments.
reserve funds Section 28. (a) Until time-share expense assessments are made against the time-share owners, the developer shall pay all time-share expenses. After any time-share expense assessment has been made against the time-share owners, time-share expense assessments shall be made at least annually, based on a budget adopted at least annually by the managing entity. At the time the time-share owners are notified of the amount of the assessment for the current year, the time-share owners shall be provided with a copy of the budget prepared in accordance with the provisions of clause (6) of subsection (a) of section thirty-eight and an accounting of income and expenses for the preceding year.
(b) Except for assessments under subsections (c), (d) and (e), all time-share expenses shall be assessed against all the time-shares in accordance with the allocation set forth in the time-share instrument pursuant to section thirteen. Any past due assessment or installment thereof shall bear interest at the rate established by the managing entity or time-share instrument not exceeding eighteen per cent per annum.
(c) To the extent required by the time-share instrument any time-share expense directly related to a time-share unit and incurred in providing a service or facilities which are available to fewer than all of the time-share owners may be assessed exclusively against the time-share owners benefited.
(d) Assessments to pay a judgment against the association shall be made only against the time-shares in the time-share property at the time the judgment was entered, in proportion to their time-share expense liabilities.
(e) If any time-share expense is caused by the misconduct of any time-share owner, the association may assess said expense exclusively against his time-share.
(f) If time-share expense liabilities are reallocated, time-share expense assessments and any installment thereof not yet due shall be recalculated in accordance with the reallocated time-share expense liabilities.
(g) Any amount identified in the budget as an amount to be reserved for the repair or replacement of the time-share unit or the furnishings, equipment and appliances located therein, shall be segregated by the managing entity, held in trust and used only for the specified purpose for which the reserve was collected unless the time-share owners, at a meeting of time-share owners, or pursuant to either section thirty-three or thirty-four determine to spend said funds for other purposes. Any ballot for any proposal to spend reserve funds for purposes other than that for which they were collected shall be accompanied by an explanation in plain language of the reasons therefor and consequences if any of so doing.
attorney’s fees; statement of unpaid assessments Section 29. (a) A person who has a duty to make assessments for time-share expenses shall have a lien on a time-share for any assessment levied against that time-share or fines imposed against its owner from the time the assessment or fine becomes due. Said lien shall be enforced in the manner provided in section five of chapter two hundred and fifty-four. Unless the time-share instrument otherwise provides, fees, charges, late charges, fines, and interest charged pursuant to clauses (8) and (9) of subsection (a) of section twenty shall be enforceable as assessments under this section. If an assessment is payable in installments, the full amount of the assessment shall be a lien from the time the first installment thereof becomes due.
(b) A lien under this section shall be prior to all other liens and encumbrances on a time-share except (i) liens and encumbrances recorded before the recording of the time-share instrument, (ii) mortgages on the time-share securing first mortgage holders and recorded before the due date of the assessment or the due date of the first installment payable on the assessment (iii) liens for real estate taxes and other governmental assessments or charges against the time-share, and (iv) liens securing assessments or charges made by a person managing a project of which the time-share property is a part; provided, however, that said priority of said lien shall be limited to such portion of said assessment as becomes due within six months prior to the commencement of an action to enforce such lien. This subsection shall not affect the priority of mechanics’ or materialmen’s liens. The lien under this section shall not be subject to the provisions of chapter one hundred and eighty-eight.
(c) The lien shall be perfected upon the recording of a claim or notice of lien in the registry of deeds or land registration office for the district in which the time-share unit is situated.
(d) A lien for unpaid assessments shall be dissolved unless proceedings to enforce said lien are commenced within three years after the assessments become due and payable.
(e) This section shall not prohibit actions to recover sums for which subsection (a) creates a lien or preclude resort to any contractual or other remedy permitted by law.
(f) A judgment or decree in any action brought under this section may include costs and reasonable attorney’s fees for the prevailing party.
(g) A person who has a duty to make assessments for time-share expenses shall furnish to a time-share owner upon written request a statement recordable in form setting forth the amount of unpaid assessments currently levied against his time-share. Said statement shall be furnished within ten business days after receipt of the request and shall be binding in favor of persons reasonably relying thereon.
separate estates; taxes and assessments; recording documents Section 3. (a) Except as otherwise provided in this chapter and notwithstanding any contrary rule of common law, a grant of an estate in a unit conferring the right of possession during a potentially infinite number of separated time periods creates an estate in fee simple having the character and incidents of such an estate at common law, and a grant of an estate in a unit conferring the right of possession during five or more separated time periods over a finite number of years equal to five or more, including extension or renewal options, creates an estate for years having the character and incidents of such an estate at common law.
(b) Each time-share estate constitutes for all purposes a separate estate in real property; provided, however, that a time-share property shall be considered one parcel of real estate for the assessment and collection of real estate taxes, betterment assessments or portions thereof, annual sewer use charges, water rates and charges, and all other assessments or portions thereof, rates and charges of every nature, due to a city, town or district with respect to the time-share property. Notices of assessments and bills for taxes shall be furnished to and paid by the managing entity, if any, as agent for the time-share owners, or if there is no managing entity, to each time-share owner. The managing entity shall give notice of such assessment to the time-share owners.
(c) A document transferring or encumbering a time-share estate may not be rejected for recording because of the nature or duration of such estate.
Section 30. A person who has a duty to make assessments for time-share expenses shall keep financial records sufficiently detailed to enable him to comply with section forty-two. All financial and other records shall be made reasonably available for examination by any time-share owner or his authorized agent.
Section 31. A third person dealing with a trustee, pursuant to the provisions of section fifteen or twenty-six, may assume without inquiry the existence of trust powers and the proper exercise thereof by the trustee. A third person shall not be bound to inquire whether the trustee has power to act as trustee or is properly exercising trust powers, and a third person without actual knowledge that the trustee is exceeding or improperly exercising his powers shall be fully protected in dealing with the trustee as if the trustee possessed and was properly exercising the powers he purports to exercise. A third person shall not be bound to assure the proper application of trust assets paid or delivered to the trustee in his capacity as trustee.
ballots; communication expenses; vote allocation; notice; recording amendments Section 32. (a) For the purposes of this section and sections thirty-three, thirty-four and thirty-five:(1) “Owner” shall mean a person who is an owner or co-owner of a time-share estate or a time-share license or, in the case of a unit that is not a time-share unit, a person who is an owner or co-owner of said unit, other than as security for an obligation.
(2) A project is limited to one in which at least fifty per cent of the votes are allocated to time-shares other than time-share licenses.
(b) The managing entity shall keep reasonably available for inspection and copying by any time-share owner all addresses, known to it or to the developer, of all the time-share owners with the principal permanent residence address of each indicated if known. The managing entity shall revise continually the list of addresses in the light of any information it obtains, and the developer shall keep the managing entity advised of any information he has or obtains.
(c) Each ballot prepared pursuant to sections thirty-three, thirty-four and thirty-five shall contain:(1) a statement that the ballot shall not be counted unless signed by an owner;(2) the specification of a date, not less than thirty or more than one hundred and eighty days after the date the ballot is mailed, by which the ballot must be received by the person to whom it is to be returned, and a statement that the ballot shall not be counted unless received by said date;(3) the name and address of the person to whom the ballot is to be returned; and(4) only the material required by sections nineteen to thirty-five, inclusive.
(d) Each ballot mailed pursuant to sections thirty-three, thirty-four and thirty-five shall be mailed to the principal permanent residence of the owner to whom it is addressed, if known to the person responsible for mailing it, and said person shall procure and keep reasonably available for inspection for at least one year after the vote is calculated a certificate of mailing for each and the original or a copy of each ballot returned by the date specified pursuant to clause (2) of subsection (c).
(e) If the managing entity, the developer, or anyone on behalf of either of them communicates with any owner, other than as expressly provided by section thirty-three, thirty-four or thirty-five on the subject matter of any petition or ballot prepared pursuant to any of said sections, the expense of said communication shall not be assessed directly or indirectly in whole or in part to any owner other than the developer.
(f) The vote allocated to any time-share and to any unit other than a time-share unit shall be counted as having been cast in accordance with the ballot of any owner of that time-share or unit. If the ballots of different owners of the same time-share unit, or of the same unit other than a time-share unit, are not in accord with one another, the vote allocated to that time-share or unit shall be divided in proportion to the number of owners thereof voting each way and shall be counted accordingly. Any ballot that is not signed by an owner or is not received by the date specified pursuant to clause (2) of subsection (c) shall be void.
(g) The managing entity shall take action reasonably calculated to notify all owners of the resolution of any matters resolved by methods authorized by section thirty-three, thirty-four or thirty-five.
(h) An amendment to a project instrument adopted pursuant to section thirty-three or thirty-four shall be recorded in the appropriate registry of deeds or land registration office forthwith by the managing entity with a statement of the vote and shall become effective upon recording.
(i) No right or power of an owner under this section or section thirty-three, thirty-four or thirty-five may be waived, limited, or delegated by contract, power of attorney, proxy, or otherwise, in favor of the developer, an affiliate of a developer, a managing entity, or any person designated by any of them.
documents; approval of expenditures; procedure Section 33. (a) The owners may amend the project instrument or any unrecorded document governing the project, or approve or disapprove any proposed expenditure, in the manner provided by this section in addition to any manner permitted by law or by the instrument or document.
(b) Any owner may deliver to the managing entity a petition containing the language of any proposed amendment or proposal for the approval or disapproval of any proposed expenditure and signed by owners of at least one time-share or other estate or interest in each of a number of units to which at least ten per cent of the votes are allocated, or any smaller percentage specified by the document to be amended. The owner delivering said petition may attach to it a letter of not more than two pages to be mailed with the ballots. Within ten days after receiving said petition, the managing entity shall mail to each owner a ballot setting forth the language of the petition and affording an opportunity to indicate a preference between approval and disapproval of said proposed amendment or proposal, together with a copy of any letter of not more than two pages attached by the owner who delivered said petition. The ballot may also be accompanied by a letter of not more than two pages from the managing entity recommending approval or disapproval of said proposed amendment or proposal.
(c) On the date specified pursuant to clause (2) of subsection (c) of section thirty-two, the managing entity shall examine the ballots that have been returned and calculate the vote accordingly. A signature on the petition shall be treated for the purpose of subsection (f) of section thirty-two as a ballot from the signer indicating approval of the proposed amendment or proposal. A simple majority of the votes counted shall be sufficient for the adoption of the proposed amendment or proposal unless the law or the document to be amended specifies a larger majority or, in the case of a proposed expenditure, the project instruments specify a larger majority not exceeding sixty-six and two-thirds per cent. No document may specify more than a simple majority for any proposed amendment or proposal the managing entity could have effected unilaterally. No proposed amendment or proposal may be adopted by an initiative unless the ballots favoring the proposed amendment or proposal represent at least twenty-five per cent of the votes allocated to all owners.
(d) A proposed amendment or proposal adopted pursuant to this section may not be repealed or modified within two years except by another initiative pursuant to this section. After said two year period, the managing entity may not repeal or modify the result without the approval of the owners in a referendum. If the project instrument permits the managing entity to initiate a referendum for said purpose, no referendum may be initiated for said purpose more often than once every two years.
matters Section 34. (a) No amendment to the project instrument may be adopted except pursuant to this section or section thirty-three. The project instrument may specify other matters to be determined by referendum of the owners and may permit the managing entity to select matters to be determined in said manner.
(b) If an amendment to a project instrument proposed by the managing entity, or other matter, is to be determined by referendum, the managing entity shall prepare and, not less than thirty or more than one hundred and eighty days before the votes are be counted, shall mail to each owner a ballot stating each matter to be determined and affording the opportunity to vote “yes” or “no” on each matter. The ballot may be accompanied by a letter from the managing entity recommending a particular decision.
(c) On the date specified pursuant to clause (2) of subsection (c) of section thirty-two, the managing entity shall examine the ballots that have been returned and calculate the vote accordingly. A simple majority of the votes counted shall determine each matter unless the project instrument specifies a larger majority, but no matter may be determined by referendum unless the ballots favoring the majority decision represent at least twenty-five per cent of the votes allocated to all owners.
Section 35. (a) During the period of time the developer appoints, controls or serves as the managing entity, the owners may discharge the manager with or without cause in the manner provided by this section in addition to any manner permitted by law or the project instrument.
(b) Any owner may prepare a ballot affording the opportunity to indicate a preference between retaining the present manager and discharging him in favor of a new manager; provided, however, that the owners of at least one time-share or other estate or interest in each of a number of units to which at least ten per cent of the votes are allocated sign a petition authorizing said owner to prepare said ballot on their behalf. A copy of said ballot and of any letter to be mailed with said ballot shall be delivered to the manager. Said ballot and a copy of any said letter, together with a copy of any written reply received from the manager containing no more pages than said letter, shall be mailed not less than ten or more than thirty days from the date of delivery to said manager to each owner by the owner who prepared the ballot.
(c) On the date specified pursuant to clause (2) of subsection (c) of section thirty-two, the person who receives the ballots shall examine the ballots that have been returned, calculate the vote accordingly, and forthwith notify the manager of the result. If at least sixty-six and two-thirds per cent of all of the votes allocated to all time-share owners, which votes represent at least thirty-three and one-third per cent of the votes allocated to all owners, favor discharging the manager, the developer also shall be notified of said result, the ballots or copies thereof shall be given forthwith to the manager, and the developer shall forthwith diligently attempt to procure offers for management contracts from prospective managers. Any owner also may attempt to procure such offers. If the developer or any owner obtains such an offer within sixty days after the date the vote was calculated, he shall forthwith notify the developer and the owner who was responsible for calculating the vote. If no offer is obtained from a prospective manager other than the current manager within said sixty days, said period shall be extended for successive intervals of thirty days each until such an offer is obtained. At the end of said period, the owner who prepared the ballot, or the developer if said owner so directs in a writing delivered to the developer, shall forthwith prepare and mail to each owner a second ballot stating at least the term and compensation provided by each offer that has been received and affording an opportunity to indicate a preference for any one of the offers or for retaining the current manager. A letter recommending that a particular offer be accepted or that the current manager be retained may accompany the ballot, and if the developer prepared the ballot he shall enclose a copy of any such letter submitted to him by the owner who was responsible for calculating the vote.
(d) On the date specified pursuant to clause (2) of subsection (c) of section thirty-two, the person who receives the ballots prepared pursuant to subsection (c) shall examine the ballots that have been returned, calculate the vote accordingly, forthwith notify the manager of the result, and hold the ballots available for inspection by the manager and any proposed manager for at least thirty days. If more votes favor accepting a particular offer than retaining the manager, the manager shall be discharged ninety days after he is notified of said result, but, if the ballot prepared pursuant to subsection (b) was delivered to the manager before the current term of the manager began, the manager shall be discharged immediately upon being notified of said result. The person who received the ballots prepared pursuant to subsection (c) shall forthwith accept on behalf of the owners the offer that received the largest number of votes. The expenses thereunder shall be thereafter part of the time-share expenses.
(e) A manager discharged pursuant to this section shall not be entitled by reason of his discharge to any penalty or other charge payable directly or indirectly in whole or in part by any owner other than the developer.
(f) The reasonable expenses incurred by any owner in obtaining offers and preparing and mailing ballots pursuant to this section, including reasonable attorney’s fees, shall be promptly collected by the managing entity from all owners as a common expense and paid to said owner if a simple majority of the vote calculated pursuant to subsection (c) favors the discharge of the manager. Similar expenses incurred by the developer also shall be so collected and promptly paid to the developer.
offering statement or other materials not required Section 36. (a) Sections thirty-six to fifty-five, inclusive, shall apply to all time-shares subject to this chapter except as provided in subsection (b).
(b) Neither a public offering statement nor the materials required by section forty-two need be prepared or delivered in the case of:(1) a gratuitous disposition of a time-share;(2) a disposition pursuant to court order;(3) a disposition by a government or governmental agency;(4) a disposition by foreclosure or deed in lieu of foreclosure;(5) a disposition that may be cancelled at any time and for any reason by the purchaser without penalty;(6) a disposition of a time-share in a unit situated wholly outside the commonwealth pursuant to a contract executed wholly outside the commonwealth, if there has been no offering within the commonwealth;(7) an offering by a developer of time-shares in no more than one time-share unit at any one time; or(8) A disposition of a time-share property or all time-shares therein to one purchaser.
preparation; liability for misleading statement; multi-location plans Section 37. (a) Except as provided in subsection (b), a developer, prior to the offering of any interest in a unit to the general public, shall prepare a public offering statement conforming to the requirements of sections thirty-eight, thirty-nine and forty.
(b) A developer may transfer responsibility for preparation of all or a part of the public offering statement to a successor developer or to a person in the business of selling real estate who intends to offer time-shares in the time-share property for his own account. In the event of said transfer of responsibility, the transferor shall provide the transferee with any information necessary to enable the transferee to fulfill the requirements of subsection (a).
(c) Any developer, agent of a developer or person in the business of selling real estate who offers a time-share for his own account to a purchaser shall deliver a public offering statement in the manner prescribed in subsection (a) of section forty-one. The person who prepared all or a part of the public offering statement shall be liable under sections forty-one and forty-nine for any false or misleading statement set forth therein or for any omission of material fact therefrom with respect to that portion of the public offering statement which he prepared. If a developer, agent of a developer or said person in the business of selling real estate did not prepare any part of a public offering statement that he delivers, he shall not be liable for any false or misleading statement set forth therein or for any omission of material fact therefrom unless he had actual knowledge of the statement or omission, or in the exercise of reasonable care, should have known of the statement or omission.
(d) If a time-share property is part of any other real estate multi-location plan in connection with the sale of which the delivery of a public offering statement is required, a single public offering statement conforming to the requirements of sections thirty-eight, thirty-nine and forty as said requirements relate to all real estate multi-location plans in which the time-share property is located, and to any other requirements imposed by law, may be prepared and delivered in lieu of providing two or more public offering statements.
purchaser; contents Section 38. (a) A public offering statement shall be written in clear and concise language and shall contain or fully and accurately disclose:(1) the name and principal address of the developer and the location of the time-share property;(2) a general description of the time-share property and the time-share units, including without limitation the number of units in the time-share property and in any project of which said time-share property is a part, and the schedule of commencement and completion of all improvements, and a copy of the current price list;(3) as to all units owned or offered by the developer in the same project:(i) the types and number of units;(ii) identification of units that are time-share units;(iii) the types and durations of the time-shares;(iv) the maximum number of units that may become part of the time-share property; and(v) a statement of the maximum number of time-shares that may be created or that there is no maximum;(4) copies of and a brief narrative description of the significant features of the time-share instrument and any documents referred to therein, other than any plats and plans, copies of any contracts or leases to be signed by purchasers at closing, and a brief narrative description of any contracts or leases subject to cancellation by the time-share owners under section twenty-three;(5) the identity of the managing entity and the manner, if any, whereby the developer or the owners of the time-share units may change the managing entity or its control;(6) a current balance sheet and a projected budget for the association, if there is an association, either within or as an exhibit to the public offering statement, for one year after the date of the first transfer to a purchaser, and thereafter the current budget, a statement of who prepared the budget, and a statement of the budgetary assumptions concerning occupancy and inflation factors. The budget shall include, without limitation:(i) a statement of the amount, or a statement that there is no amount, included in the budget as a reserve for repairs and replacement;(ii) a statement of any other reserves;(iii) the projected time-share expense liability by category of expenditures for the time-share units; and(iv) the projected time-share expense liability for each time-share;(7) a description of (i) the nature and purposes of all charges, dues, maintenance fees, and other expenses that may be assessed, (ii) the current amounts assessed, (iii) the method and formula for changes, and (iv) the method and formula for allocating said expenses between the time-share owners and the developer or managing entity or any affiliate of either of them and the method and formula for allocating said expenses between time-share property and the person who owns or controls any property in the project which is not a time-share unit or used solely as an appurtenance thereto;(8) any services which the developer provides or expenses he pays and which he expects may become at any subsequent time a time-share expense of the time-shares, and the projected time-share expense liability attributable to each of said services or expenses for each time-share;(9) any initial or special fee due from the purchaser at closing, together with a description of the purpose of the fee and the method of its calculation;(10) a statement describing the existence of and the effect on the time-share owners of liens, defects, or encumbrances on or affecting the title to the time-share units;(11) a statement as to whether or not title insurance is available, the charge for title insurance, if available and a copy of a specimen title insurance policy, if available;(12) a description of any financing offered by the developer;(13) the terms and significant limitations of any warranties provided by the developer, including statutory warranties and limitations on the enforcement thereof or on damages;(14) a statement that:(i) within three business days after the date of receipt of a public offering statement, a purchaser may cancel any contract for purchase of a time-share from a developer;(ii) if a developer fails to provide a public offering statement to a purchaser at least five business days before the delivery of a deed, notice of time-share lease or time-share license, whichever is applicable, the purchaser is entitled, in addition to any other remedy, to recover from the developer an amount equal to ten per cent of the sales price of the time-share;(iii) if a purchaser receives the public offering statement more than three business days before the date of signing a contract, he cannot cancel the contract for failure timely to receive the public offering statement;(iv) the creation, management and sale of time-share units and the contents of this public offering statement are regulated by this chapter and a violation of the provisions of this chapter shall give a purchaser a right of action as provided in section forty-nine. Said statement shall be printed in bold face type; and(v) a time-share deed or notice of a time-share lease or time-share license shall be recorded in the registry of deeds or land registration office for the district in which the time-share property is located in order to protect the purchaser.
(15) a statement of any unsatisfied judgments against the developer or the managing entity, the status of any pending actions involving the sale or management of real estate to which the developer or an affiliate of the developer or the managing entity or an affiliate of the managing entity is a defending party, and the status of any pending actions of which the developer has actual knowledge, of significance to the time-share units;(16) a statement that any deposit made in connection with the purchase of a time-share shall be held in an escrow account until expiration of the time for rescission or cancellation or any later time specified in the contract to purchase the time-share, and shall be returned to the purchaser if the purchaser cancels the contract pursuant to section forty-one;(17) any restraints on transfer of time-shares or portions thereof;(18) a description of the insurance coverage provided for the benefit of time-share owners;(19) any current or expected fees or charges to be paid by time-share owners for the use of any facilities related to the project;(20) a reasonable description of the furnishings, equipment or appliances provided with each time-share unit or a statement that no furnishings, equipment or appliances shall be provided; and the charge, if any, therefor;(21) a description of all real estate and facilities owned by the developer, other than time-share units, the rights of time-share owners, if any, to use and occupy said real estate or facilities and the charge if any, therefor;(22) the extent to which financial arrangements have been provided for completion of all promised improvements pursuant to section fifty-one;(23) the extent to which a time-share unit may become subject to a tax or other lien arising out of claims against other time-share owners of the same time-share unit;(24) a description of the rights and remedies provided in the time-share instrument of a time-share owner who is prevented from enjoying exclusive occupancy of a time-share unit by others, or a statement that no such rights and remedies are provided in said instrument; and(25) all unusual or material circumstances, features and characteristics of the project.
(26) a description of any contractual arrangement requiring a developer to offer its time-share purchasers affiliation with any specific exchange company and the duration of any such requirement.
(b) A developer shall promptly amend (i) the public offering statement to report any material or adverse change in the information required by subsection (a) and section thirty-nine and (ii) the public offering statement or any supplement thereto to report any material or adverse change known to him in the information required by sections fifty-three and fifty-four.
buildings; contents Section 39. (a) If a conversion building that includes or is to include one or more time-share units is more than ten years old and the developer or any affiliates of the developer own or control more than fifty per cent of all units in the project, the public offering statement shall contain, in addition to the information required by section thirty-eight:(1) a statement by the developer, based on a report prepared by an independent registered architect or engineer, describing the present condition of all structural components and mechanical and electrical installations material to the use and enjoyment of the time-share units;(2) a statement by the developer of the expected useful life of each item reported on in clause (1) or a statement that no representations shall be made in that regard; and(3) a list of any outstanding notices of uncured violations of building codes or other municipal regulations, together with the estimated cost of curing said violations;(b) This section shall apply only to units in which use as a dwelling or for recreational purposes, or both, is permissible.
Section 39A. The units created or constructed under this chapter shall conform to the regulations promulgated pursuant to section thirteen A of chapter twenty-two.
rights Section 4. Except as otherwise expressly provided in this chapter, provisions of this chapter shall not be varied by agreement, and rights conferred by this chapter shall not be waived. A developer shall not act under a power of attorney, or use any other device, to evade the limitations or prohibitions of this chapter or of the time-share instrument.
registered with securities exchange commission Section 40. If a time-share is currently registered with the securities and exchange commission of the United States, a developer satisfies all requirements of this chapter relating to the preparation of a public offering statement if he delivers to the purchaser a copy of the public offering statement filed with said securities and exchange commission.
offering statement and resale disclosures; cancellation of contract; damages Section 41. (a) A person required to deliver a public offering statement pursuant to subsection (c) of section thirty-seven shall, before transfer of a time-share and no later than the date of a contract of sale, provide a prospective purchaser with (i) a copy of the public offering statement and all amendments, exhibits and supplements thereto, and (ii) the disclosures required in the case of resales pursuant to subsection (a) of section forty-two. Unless the purchaser has received said materials more than three business days before the date of execution of any contract of sale or the transfer of a time-share, the contract or transfer shall be voidable by him until he has received said materials and for three business days thereafter.
(b) If a purchaser elects to cancel a contract pursuant to subsection (a), he may do so by hand-delivering written notice thereof to the seller or to his agent for service of process, by mailing notice thereof to the seller or to his agent for service of process by registered mail, return receipt requested, by telegram or by courier service with guaranteed next day delivery. Notice shall be deemed given on the date of postmark or if by telegram or courier service on the date when transmitted from the place of origin. Cancellation shall be without penalty, and all payments made by the purchaser before cancellation shall be refunded immediately if the purchaser’s deposit check shall not have been deposited in the seller’s bank account or if it has been so deposited within seven days after receipt of the notice of cancellation, but in no event prior to the first business day following the date on which the amount of the deposit is finally and unconditionally credited to the seller’s account or if such deposit was made by credit card, such refund shall be made by immediate issuance of a credit to the purchaser’s credit card account.
(c) If a person required to deliver a public offering statement pursuant to subsection (c) of section thirty-seven fails to provide a purchaser to whom a time-share is transferred with information which satisfies in all material respects the requirements of subsection (a), the purchaser, in addition to any rights to damages or other relief, is entitled to receive from the seller an amount equal to ten per cent of the sales price of the time-share.
purchaser; limitation on expense liability Section 42. (a) Except in the case of a sale where delivery of a public offering statement is required, or unless exempt under subsection (b) of section thirty-six, a seller of a time-share shall furnish to the purchaser before execution of any contract of sale, or before the transfer of title whichever first occurs, a copy of the time-share instrument, other than any plats or plans, and a certificate containing:(1) a statement disclosing the effect on the proposed transfer of any right of first refusal or other restraint on transfer of the time-share or any portion thereof;(2) a statement setting forth the amount of the periodic time-share expense liability and any unpaid time-share expense or special assessment or other sums currently due and payable from the seller;(3) a statement of any other fees payable by time-share owners; and(4) a statement of any judgments or other matters that are or may become liens against the time-share or the time-share unit and the status of any pending actions that may result in said liens.
(b) A managing entity, within ten days after a request by a time-share owner, shall furnish a certificate containing the information necessary to enable the time-share owner to comply with this section. A time-share owner providing a certificate pursuant to subsection (a) shall not be liable to the purchaser for any erroneous information provided by the managing entity and included in said certificate, other than for judgment liens against the time-share or the time-share unit.
(c) A purchaser shall not be liable for any unpaid time-share expense liability or fees in an amount greater than the amount set forth in a certificate prepared by a managing entity. A time-share owner shall not be liable to a purchaser for the failure or delay of a managing entity to provide the certificate in a timely manner, but the contract of sale shall be voidable by the purchaser until the certificate has been provided and for five days thereafter or until transfer, whichever first occurs.
of payment Section 43. (a) Any deposit made in connection with the purchase or reservation in the commonwealth of a time-share from a person required to deliver a public offering statement pursuant to subsection (c) of section thirty-seven shall be placed in escrow, either in the commonwealth or in the state where the time-share project is located, in an account designated solely for said purpose by a licensed title insurance company, an attorney, a licensed real estate broker or an institution whose accounts are insured by a governmental agency or instrumentality until (i) delivered to said person required to deliver a public offering statement at the expiration of the time for cancellation or any later time specified in any contract of sale, (ii) delivered to said person because of the purchaser’s default under a contract to purchase the time-share, or (iii) refunded to the purchaser. The interest, if any, earned on the deposit while it is held in escrow shall be credited to the account of the purchaser.
(b) A seller may hold until the receipt of a notice of cancellation, or the fifteenth day following the cancellation period provided for in section forty-one, an instrument of payment, including but not limited to a credit account authorization, made by a purchaser which is payable to the escrow agent. After expiration of said fifteen days, if no notice of cancellation is received, said instrument shall be deposited as provided in subsection (a).
process for foreclosure of lien Section 44. (a) In the case of a sale of a time-share where delivery of a public offering statement is required pursuant to subsection (c) of section thirty-seven, a seller shall, before transferring a time-share, record in the appropriate registry of deeds or land registration office or furnish to the purchaser releases of all liens affecting said time-share which the purchaser does not expressly agree to take subject to or assume, or shall provide a surety bond as provided in section fourteen of chapter two hundred and fifty-four.
(b) If a lien other than a mortgage becomes effective against more than one time-share estate, any time-share owner is entitled to a release of his time-share estate from said lien upon payment of his proportionate liability for said lien in accordance with time-share expense liability unless he or his predecessor in interest agreed otherwise with the lienor. After payment, the managing entity shall not assess or have a lien against said time-share estate for any portion of the time-share expenses incurred in connection with said lien.
(c) If a lien is to be foreclosed or enforced against all time-shares in a time-share property, service of process shall be made upon the managing entity, if any, and shall constitute service thereof upon all the time-share owners for the purposes of foreclosure or enforcement. The managing entity shall forward promptly, by registered mail, a copy thereof to each time-share owner at his last address known to the managing entity. The cost of said forwarding shall be paid in advance by the holder of the lien and may be taxed as a cost of the enforcement proceeding. Said notice shall not be sufficient for the entry of a deficiency or other personal judgment against any time-share owner.
Section 45. (a) Express warranties made by any seller to a purchaser of a time-share shall be created as follows:(1) any affirmation of fact or promise which relates to the time-share, the time-share unit, rights appurtenant to either, area improvements that would directly benefit the time-share, or the right to use or have the benefit of facilities not located on the time-share unit, creates an express warranty that the time-share, the time-share unit, and related rights and uses shall conform to the affirmation or promise;(2) any model or description of the physical characteristics of the time-share property, including plans and specifications of or for improvements, creates an express warranty that the property shall conform to the model or description, provided, however, that this paragraph shall not preclude the substitution of items of substantially the same kind, function and quality as those in the model or description;(3) any description of the quantity or extent of the real estate constituting the time-share property, including plats or surveys, creates an express warranty that the property shall conform to the description, subject to customary tolerances; and(4) a provision that a purchaser may put a time-share unit only to a specified use is an express warranty that the specified use is lawful.
(b) Neither formal words, such as “warranty” or “guarantee”, nor a specific intention to make a warranty, shall be necessary to create an express warranty of quality, but a statement purporting to be merely an opinion or commendation of the time-share, the time-share unit, or the value of either shall not create a warranty.
(c) Any transfer of a time-share transfers to the purchaser all express warranties of quality made by previous sellers.
business of selling real estate for own account Section 46. (a) A developer and any person in the business of selling real estate for his own account warrants that a time-share unit shall be in at least as good condition as the earlier of the time of the transfer or of the delivery of possession as it was at the time of contracting, reasonable wear and tear excepted.
(b) A developer and any person in the business of selling real estate for his own account impliedly warrants that a time-share unit and any other real property the time-share owners have a right to use in conjunction therewith shall be suitable for the ordinary uses of real estate of its type and that any improvements made or contracted for by him, or made by any person before transfer, shall be:(1) free from defective materials; and(2) constructed in accordance with applicable law, according to sound engineering and construction standards, and in a workmanlike manner.
(c) A developer and any person in the business of selling real estate for his own account warrants to a purchaser of a time-share that an existing use of the time-share unit, continuation of which is contemplated by the parties, does not violate applicable law at the earlier of the time of transfer or of the delivery of possession.
(d) Warranties imposed by this section may be excluded or modified as provided in section forty-seven.
(e) For purposes of this section, improvements made or contracted for by an affiliate of a developer are made or contracted for by the developer.
(f) Any transfer of a time-share transfers to the purchaser all implied warranties of quality, of any developer and any person in the business of selling real estate for his own account.
modifications Section 47. (a) Except as limited by subsection (b) implied warranties of quality:(1) may be excluded or modified by agreement of the parties; and(2) shall be excluded by expressions of disclaimer, such as “as is”, “with all faults”, or other language that in common understanding calls the purchaser’s attention to the exclusion of warranties.
(b) With respect to a purchaser of a time-share in a time-share unit that may be used as a dwelling or for recreational purposes, no general disclaimer of implied warranties of quality shall be effective, but a developer may disclaim liability in an instrument signed by the purchaser for a specified defect or specified failure to comply with applicable law if the existence of the defect or failure entered into and became a part of the basis of the bargain.
Section 48. (a) A judicial proceeding for breach of any obligation arising under section forty-five or forty-six shall be commenced within four years after the cause of action accrues, but the parties may agree to reduce the period of limitation to not less than two years. With respect to a time-share unit that may be used as a dwelling or for recreational purposes, an agreement to reduce the period of limitation shall be evidenced by a separate instrument executed by the purchaser.
(b) Subject to subsection (c), a cause of action for breach of warranty of quality, regardless of the purchaser’s lack of knowledge of the breach accrues, unless extended by agreement:(1) as to a unit, at the time of the first transfer of a time-share therein by the seller to a bona fide purchaser; and(2) as to other improvements, at the time each is completed.
(c) If a warranty of quality explicitly extends to future performance or duration of any improvement or component of the property, the cause of action accrues at the time the breach is discovered or at the end of the period for which the warranty explicitly extends, whichever first occurs.
Section 49. If a developer or any other person subject to this chapter fails to comply with any provision of this chapter or of the time-share instrument, any person or class of persons adversely affected by the failure to comply shall have a claim for appropriate relief. A failure to comply with the provisions of this chapter shall be deemed an unfair or deceptive act or practice under chapter ninety-three A.
Section 5. (a) The court, upon finding as a matter of law that a time-share contract or contract clause was unconscionable at the time the contract was made, may refuse to enforce such contract, may enforce the remainder of the contract without the unconscionable clause, or may limit the application of any such unconscionable clause in order to avoid an unconscionable result.
(b) Whenever it is claimed, or appears to said court, that such contract or contract clause is unconscionable, the court shall afford the parties a reasonable opportunity to present evidence as to:(1) the commercial setting of the negotiations;(2) whether a party has knowingly taken advantage of the inability of the other party reasonably to protect his interests by reason of physical or mental infirmity, illiteracy, or inability to understand the language of the agreement or similar factors;(3) the effect and purpose of the contract or clause; and(4) if a sale, any gross disparity, at the time of contracting, between the amount charged for the time-share and the value of the time-share measured by the price at which similar time-shares were readily obtainable, but a disparity between the contract price and the value of the time-share measured by the price at which a similar time-share was readily obtainable in similar transactions shall not, of itself, render the contract unconscionable.
Section 50. If any improvement in the time-share property is not required to be built, no promotional material may be displayed or delivered to prospective purchasers which describes or portrays said improvement unless the description or portrayal of the improvement shall be conspicuously labeled or identified as “NEED NOT BE BUILT”.
responsibility for recording deed or notice Section 51. (a) The developer shall complete all promised improvements described in the time-share instrument and promotional materials.
(b) Unless the purchaser of a time-share agrees in writing to record the evidence of his ownership of the time-share, the developer or the managing entity shall record the time-share deed or notice of time-share lease or time-share license, on behalf of the purchaser in the appropriate registry of deeds or land registration office for the district in which the time-share property is located within five days after the performance of the terms and conditions of the purchase and sale agreement or within six months of the date of contract to purchase whichever shall occur earlier. All representations made by the developer as of the date of delivery of the time-share deed or notice of time-share lease or license shall be true and correct on the date of recording said deed or notice by the developer.
Section 52. Any advertisement of a time-share property which includes the offer of a prize or other inducement shall prominently disclose the approximate fair market value, number of, and criteria to qualify for, each prize or inducement offered.
literature; liability Section 53. (a) If a purchaser may participate in any exchange program, the developer, agent of a developer or person in the business of selling real estate for his own account shall, except as provided in subsection (b), deliver to the purchaser at the time of delivery of the public offering statement required by section thirty-seven, written information regarding said exchange program and the purchaser shall certify in writing to the receipt thereof. Said information shall include the following:(1) the name and address of the exchange company;(2) the names of all officers, directors, and shareholders owning five per cent or more of the outstanding stock of the exchange company;(3) a statement indicating whether the exchange company or any of its officers or directors has any legal or beneficial interest in any developer or managing entity for any time-share plan participating in the exchange program and, if so, the name and location of the time-share property and the nature of the interest;(4) unless the exchange company is also the developer or an affiliate of a developer, a statement that the purchaser’s contract with the exchange company is a contract separate and distinct from the contract of sale;(5) a statement indicating whether the purchaser’s participation in the exchange program is dependent upon the continued affiliation of the time-share plan with the exchange program and the readmission fees, dues and other charges which shall be required to be paid by the purchaser if he initially becomes a member of the exchange program, allows the membership to lapse and then seeks reinstatement or readmission;(6) a statement indicating whether the purchaser’s membership or participation in the exchange program is voluntary or mandatory;(7) a complete and accurate description of the terms and conditions of the purchaser’s contractual relationship with the exchange company and the procedure by which changes thereto may be made;(8) a complete and accurate description of the procedure to qualify for and effectuate exchanges;(9) a complete and accurate description in boldface type of all restrictions, limitations or priorities employed in the operation of the exchange program and the manner of application thereof, including, without limitation, any restrictions, limitations or priorities based on seasonality, unit size, or levels of occupancy;(10) a statement indicating whether exchanges are arranged on a space-available basis and whether any guarantees of specific requests for exchanges are made by the exchange program, and if so, the nature thereof;(11) a complete and accurate description of the circumstances, if any, in which a time-share owner may lose the use and occupancy of his time-share in any properly applied for exchange without being provided with substitute accommodations by the exchange company;(12) the fees for participation by time-share owners in the exchange program, a statement whether any such fees may be altered by the exchange company, and the circumstances under which alterations may be made;(13) the name and location of each time-share property, accommodation or facility participating in the exchange program;(14) the number of units in each property which qualify for participation in the exchange program and which are available for occupancy expressed within the following numerical groupings: 1-5; 6-10; 11-20; 21-50; and 51 and over;(15) with respect to each time-share plan or other property the number of owners who are eligible to participate in the exchange program expressed within the following numerical groupings: 1-100; 101-249; 250-499; 500-999; and 1,000 and over; and the criteria used to determine current eligibility to participate in the exchange program;(16) the disposition made by the exchange company of time-shares deposited by eligible owners with the exchange program and not used by the exchange company in effecting exchanges;(17) a statement indicating the following information, which, except as provided in subsection (b), shall be independently audited by a certified public accountant or accounting firm and reported for each year no later than July first, of the succeeding year:(i) the number of the time-share owners enrolled in the exchange program, the number of said owners who are fee paying and the number of said owners who are enrolled gratuitously;(ii) the number of time-share properties, accommodations or facilities eligible to participate in the exchange program categorized by those having a contractual relationship between the developer or the association and the exchange company and those having a contractual relationship between the exchange company and time-share owners directly;(iii) the percentage of confirmed exchanges, which shall be the number of exchanges confirmed by the exchange company divided by the number of exchanges properly applied for, together with a complete and accurate statement of the criteria used to determine whether an exchange request was properly applied for. An exchange shall be confirmed when an eligible time-share owner applies for and receives the right to occupy an exchanged time-share for a time period during the year reported;(iv) the number of exchanges confirmed by the exchange company during the year;(v) the number of time-shares for which the exchange company has an outstanding obligation to provide an exchange to a time-share owner who relinquished a time-share during the year in exchange for a time-share in any future year;(18) a statement in boldface type that the percentage described in subclause (iii) of clause (17) of subsection (a) does not indicate a purchaser’s or owner’s probabilities of being confirmed to any specific choice, as availability at individual locations may vary.
(b) The information required by subsection (a) shall be accurate as of a date which is not more than thirty days prior to the date on which the information is delivered to the purchaser, except that the information required by clauses (2), (3), (13), (14), (15) and (17) of subsection (a) shall be accurate as of December thirty-first of the preceding year if the information is delivered between July first and December thirty-first of any year; information delivered between January first and June thirtieth of any year shall be accurate as of December thirty-first of the year prior to the preceding year. All references in this section to the word “year” shall mean calendar year.
(c) In the event an exchange company offers an exchange program directly to the purchaser or time-share owner, the exchange company shall deliver to each purchaser or time-share owner, prior to such offering or the execution of any contract between the purchaser or time-share owner and said company the information set forth in subsection (a). This section shall not apply to the renewal of any contract between the purchaser or time-share owner and the exchange company offering the exchange program.
(d) Each exchange company offering an exchange program to purchasers in the commonwealth shall include the statement set forth in paragraph (18) of subsection (a) on all promotional brochures, pamphlets, advertisements or other materials which contain the percentage of confirmed exchanges described in subclause (iii) of clause (17) of subsection (a) and which are disseminated by the exchange company.
(e) No developer shall have any liability arising out of the use, delivery or publication by the developer of written or printed information or audio-visual materials provided to it by the exchange company pursuant to this section. Except as otherwise provided in this subsection, no exchange company shall have any liability with respect to (i) any representation made by the developer relating to the exchange program or exchange company, or (ii) the use, delivery or publication by the developer of any information relating to the exchange program or exchange company. An exchange company shall be liable for written or printed information or audio-visual materials provided to the developer or to a purchaser or time-share owner by the exchange company. The failure of the exchange company to comply with the provisions of this section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall constitute a violation of this chapter.
purchasers; violations Section 54. (a) A multi-location developer shall, except as provided in subsection (b), deliver to the purchaser, prior to the execution of the contract of sale the following written information which the purchaser shall certify in writing to the receipt thereof:(1) a complete and accurate description of the procedure to qualify for and effectuate use rights in time-share units in the multi-location plan;(2) a complete and accurate description in boldface type of all restrictions, limitations or priorities employed in the operation of the multi-location plan and the manner of application thereof, including, without limitation, any restrictions, limitations or priorities on reservations, use or entitlement rights based on seasonality, unit size, levels of occupancy or class of owner;(3) a statement indicating whether use is arranged on a space-available basis and whether any guarantees of specific requests for use are made by the multi-location developer and if so, the nature thereof and the number, type and description of units available at each property;(4) the name and address of each time-share property included in the multi-location plan;(5) the number of time-share units in each time-share property which are available for occupancy, the interest which the multi-location developer has in each of said time-share units, and if less than fee ownership the relevant terms of said interest and whether each of said time-share units may be withdrawn from the multi-location plan;(6) the following information which, except as provided in subsection (b), shall be independently audited by a certified public accountant or accounting firm and reported for each year on or before July first, of the succeeding year:(i) the number of owners in the multi-location plan;(ii) for each time-share property in the multi-location plan, the number of properly made requests for use of time-share units in said time-share property;(iii) for each time-share property, the percentage of owners who properly requested use of a time-share unit in said time-share property who received the right to use a time-share unit in said time-share property;(7) a statement in boldface type that the percentage described in clause (6) of subsection (a) does not indicate a purchaser’s or owner’s probabilities of being able to use any time-share unit since availability at individual locations may vary.
(b) The information required by subsection (a) shall be accurate as of a date which is no more than thirty days prior to the date on which the information is delivered to the purchaser, except that the information required by paragraphs (4), (5) and (6) of subsection (a) shall be accurate as of December thirty-first of the preceding year if the information is delivered between July first and December thirty-first of any year; information delivered between January first and June thirtieth of any year shall be accurate as of December thirty-first of the year prior to the preceding year. All references in this section to the word “year” shall mean calendar year.
(c) The failure of a multi-location developer to comply with the provisions of this section, or the use by it of any unfair or deceptive act or practice in connection with the operation of the exchange program, shall constitute a violation of this chapter.
Section 55. (a) It shall be unlawful for any person to sell or offer to sell a time-share in the commonwealth unless the developer of the time-share property in which the time-share is located has designated a person as a project broker and said person is then serving as the project broker for the time-share property. The time-share property shall be considered a separate real estate office for purposes of the real estate licensing laws.
(b) It is unlawful for any person to engage in the business, act in the capacity of or advertise or assume to act as a project broker within the commonwealth unless such person is a licensed real estate broker under the laws of the commonwealth.
Section 6. Every contract or duty governed by this chapter imposes an obligation of good faith in its performance or enforcement.
judicial enforcement Section 7. (a) The remedies provided by this chapter shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed. However, consequential, special, or punitive damages may not be awarded except as specifically provided in this chapter or by other rule of law.
(b) Any right or obligation established by this chapter shall be enforceable by judicial proceeding.
Section 8. The principles of law and equity, including the law of corporations and unincorporated associations, the law of real property and the law relative to capacity to contract, principal and agent, eminent domain, estoppel, fraud, misrepresentation, duress, coercion, mistake, receivership, substantial performance, or other validating or invalidating cause shall supplement the provisions of this chapter, except to the extent such principles are inconsistent with this chapter.
Section 9. In the event of any conflict between this chapter and chapter one hundred and eighty-three A or chapter one hundred and fifty-seven, the provisions of this chapter shall prevail, but this chapter does not invalidate or otherwise affect rights or obligations vested under said chapter one hundred and eighty-three A or said chapter one hundred and fifty-seven, or the manner of their exercise or enforcement.
The subdivision control law shall not apply to the division of a building into time-share units or to the creation of time-shares in a unit.
Nothing in this chapter shall be deemed to limit or otherwise affect the authority of the board of registration of real estate brokers and salesmen to regulate out-of-state real property sales within the commonwealth.
Section 1. This chapter may be known and cited as the Predatory Home Loan Practices Act.
Section 10. A high-cost home mortgage loan shall not contain a payment schedule with regular periodic payments such that the result is an increase in the principal amount.
Section 11. A lender shall not charge a borrower a fee or other charge to modify, renew, extend or amend a high-cost home mortgage loan or to defer a payment due under the terms of a high-cost home mortgage loan.
Section 12. A high-cost home mortgage loan shall not include terms pursuant to which more than 2 periodic payments required under the loan are consolidated and paid in advance from the loan proceeds provided to the borrower.
Section 13. Without regard to whether a borrower is acting individually or on behalf of others similarly situated, any provision of a high cost home mortgage loan that allows a party to require a borrower to assert any claim or defense in a forum that is less convenient, more costly, or more dilatory for the resolution of a dispute than a judicial forum established in the commonwealth where the borrower may otherwise properly bring a claim or defense or limits in any way any claim or defense the borrower may have is unconscionable and void.
Section 14. A lender shall not pay a contractor under a home improvement contract from the proceeds of a high cost home mortgage loan other than (i) by an instrument payable to the borrower or jointly to the borrower and contractor, or (ii) at the election of the borrower, through a third party escrow agent in accordance with terms established in a written agreement signed by the borrower, the lender and the contractor before the disbursement of funds.
applicability Section 15. (a) Any person who purchases or is otherwise assigned a high-cost home mortgage loan shall be subject to all affirmative claims and any defenses with respect to the loan that the borrower could assert against the original lender or broker of the loan; provided that this subsection shall not apply if the purchaser or assignee demonstrates by a preponderance of the evidence that it:(1) has in place at the time of the purchase or assignment of the subject loans, policies that expressly prohibit its purchase or acceptance of assignment of any high-cost home mortgage loans;(2) requires by contract that a seller or assignor of home loans to the purchaser or assignee represents and warrants to the purchaser or assignee that either (i) the seller or assignor will not sell or assign any high-cost home mortgage loans to the purchaser or assignee or (ii) that the seller or assignor is a beneficiary of a representation and warranty from a previous seller or assignor to that effect; and(3) exercises reasonable due diligence at the time of purchase or assignment of home loans or within a reasonable period of time after the purchase or assignment of the home loans, intended by the purchaser or assignee to prevent the purchaser or assignee from purchasing or taking assignment of any high-cost home mortgage loans; provided, however, that reasonable due diligence shall provide for sampling and shall not require loan by loan review.
(b) Limited to amounts required to reduce or extinguish the borrower’s liability under the high-cost home mortgage loan plus amounts required to recover costs, including reasonable attorneys’ fees, a borrower acting only in an individual capacity may assert claims that the borrower could assert against a lender of the home loan against any subsequent holder or assignee of the home loan as follows:(1) A borrower may bring an original action for a violation of this chapter in connection with the loan within 5 years of the closing of a high-cost home mortgage loan;(2) A borrower may, at any time during the term of a high-cost home mortgage loan, employ any defense, claim, counterclaim, including a claim for a violation of this chapter, after an action to collect on the home loan or foreclose on the collateral securing the home loan has been initiated or the debt arising from the home loan has been accelerated or the home loan has become 60 days in default, or in any action to enjoin foreclosure or preserve or obtain possession of the home that secures the loan.
(c) This section shall be effective notwithstanding any other provision of law; provided, that nothing in this section shall be construed to limit the substantive rights, remedies or procedural rights available to a borrower against any lender, assignee or holder under any other law. The rights conferred on borrowers by subsections (a) and (b) are independent of each other and do not limit each other.
Section 16. A lender shall not recommend or encourage default on an existing loan or other debt prior to and in connection with the closing or planned closing of a high-cost home mortgage loan that refinances all or any portion of the existing loan or debt.
Section 17. (a) This chapter shall apply to any lender who attempts to avoid its application by dividing any loan transaction into separate parts for the purpose of evading this chapter.
(b) A lender making a high-cost home mortgage loan who, when acting in good faith, fails to comply with this chapter, shall not be considered to have violated this chapter if the lender establishes that either: (1) Within 30 days of the loan closing and prior to the institution of any action under this chapter, the lender notifies the borrower of the compliance failure and makes appropriate restitution and whatever adjustments are necessary are made to the loan, at the choice of the borrower, to either: (i) make the high-cost home mortgage loan satisfy the requirements of this chapter or (ii) change the terms of the loan in a manner beneficial to the borrower so that the loan will no longer be considered a high-cost home mortgage loan; or, (2) the compliance failure was not intentional and resulted from a bona fide error notwithstanding the maintenance procedures reasonably adapted to avoid the errors, and within 60 days after the discovery of the compliance failure and before the institution of any action under this chapter or the receipt of written notice of the compliance failure, the borrower is notified of the compliance failure, appropriate restitution is made and whatever adjustments are necessary are made to the loan, at the choice of the borrower, to either (i) make the high-cost home mortgage loan satisfy the requirements of this chapter or (ii) change the terms of the loan in a manner beneficial to the borrower so that the loan will no longer be considered a high-cost home mortgage loan. Examples of a bona fide error may include clerical errors, errors in calculation, computer malfunction and programming, and printing errors. An error in legal judgment with respect to a person’s obligation under this chapter shall not be considered a bona fide error.
Section 18. (a) A violation of this chapter shall constitute a violation of chapter 93A.
(b) An aggrieved borrower or borrowers may bring a civil action for injunctive relief or damages in a court of competent jurisdiction for any violation of this chapter.
(c) In addition the court shall, as the court may consider appropriate: (1) issue an order or injunction rescinding a home mortgage loan contract which violates this chapter, or barring the lender from collecting under any home mortgage loan which violates this chapter; (2) issue an order or injunction barring any judicial or non judicial foreclosure or other lender action under the mortgage or deed of trust securing any home mortgage loan which violates this chapter; (3) issue an order or injunction reforming the terms of the home mortgage loan to conform to this chapter; (4) issue an order or injunction enjoining a lender from engaging in any prohibited conduct; or (5) impose such other relief, including injunctive relief, as the court may consider just and equitable.
(d) In addition, any lender found to be in violation of this chapter shall be subject to sections 2A and 2D of chapter 167.
(e) Originating or brokering a home loan that violates a provision of this section shall constitute a violation of this chapter.
Section 19. The commissioner shall promulgate regulations necessary to carry out the provisions of this chapter.
Section 2. As used in this chapter, the following words shall, unless the context requires otherwise, have the following meanings:—“Annual percentage rate”, the annual percentage rate for a loan calculated according to the Federal Truth In Lending Act (15 U.
S.
C. 1601 et seq.
) and the regulations promulgated thereunder by the Federal Reserve Board or chapter 140D and the regulations promulgated thereunder by the commissioner of banks.
“Benchmark rate”, the interest rate which the borrower can reduce by paying bona fide discount points; this rate shall not exceed the weekly average yield of United States Treasury securities having a maturity of 5 years, on the fifteenth day of the month immediately preceding the month in which the loan is made, plus 4 percentage points.
“Bona fide loan discount points”, loan discount points which are: (1) knowingly paid by the borrower; (2) paid for the express purpose of lowering the benchmark rate; and (3) in fact reducing the interest rate or time-price differential applicable to the loan from an interest rate which does not exceed the benchmark rate.
“Broker”, any person who for compensation directly or indirectly solicits, processes, places or negotiates home mortgage loans for others or who closes home mortgage loans which may be in the person’s own name with funds provided by others and which loans are thereafter assigned to the person providing the funding of the loans; provided, that broker shall not include a person who is an attorney providing legal services in association with the closing of a home mortgage loan who is not also funding the home loan and is not an affiliate of the lender.
“Commissioner”, the commissioner of banks.
“Conventional mortgage rate”, the most recently published annual yield on conventional mortgages published by the Board of Governors of the Federal Reserve System, as published in statistical release H.
15 or any publication that may supersede it, as of the applicable time set forth in 12 C.
F.
R. 226.
32(a)(1)(i).
“Conventional prepayment penalty”, any prepayment penalty or fee that may be collected or charged in a home loan, and that is authorized by law other than this chapter, provided the home loan (1) does not have an annual percentage rate that exceeds the conventional mortgage rate by more than 2 percentage points; and (2) does not permit any prepayment fees or penalties that exceed 2 per cent of the amount prepaid.
“High cost home mortgage loan”, a consumer credit transaction that is secured by the borrower’s principal dwelling, other than a reverse mortgage transaction, a home mortgage loan that meets 1 of the following conditions:—(i) the annual percentage rate at consummation will exceed by more than 8 percentage points for first-lien loans, or by more than 9 percentage points for subordinate-lien loans, the yield on United States Treasury securities having comparable periods of maturity to the loan maturity as of the fifteenth day of the month immediately preceding the month in which the application for the extension of credit is received by the lender; and when calculating the annual percentage rate for adjustable rate loans, the lender shall use the interest rate that would be effective once the introductory rate has expired.
(ii) Excluding either a conventional prepayment penalty or up to 2 bona fide discount points, the total points and fees exceed the greater of 5 per cent of the total loan amount or $400; the $400 figure shall be adjusted annually by the commissioner of banks on January 1 by the annual percentage change in the Consumer Price Index that was reported on the preceding June 1.
“Lender”, an entity that originated 5 or more home mortgage loans within the past 12 month period or acted as an intermediary between originators and borrowers on 5 or more home mortgage loans within the past 12 month period, provided that lender shall not include a person who is an attorney providing legal services in association with the closing of a home loan who is not also funding the home loan and is not an affiliate of the lender. For the purposes of this chapter, lender shall also mean a broker.
“Obligor”, a borrower, co-borrower, cosigner, or guarantor obligated to repay a home mortgage loan.
“Points and fees”, (i) items required to be disclosed pursuant to sections 226.
4 (a) and 226.
4 (b) of Title 12 of the Code of Federal Regulations or 209 CMR 32.
04(1) and 209 CMR 32.
04(2) of the Code of Massachusetts Regulations, as amended from time to time, except interest or the time-price differential; (ii) charges for items listed under sections 226.
4 (c) (7) of Title 12 of the Code of Federal Regulations or 209 CMR 32.
04(3)(g) of the Code of Massachusetts Regulations, as amended from time to time, but only if the lender receives direct or indirect compensation in connection with the charge, otherwise, the charges are not included within the meaning of the term “points and fees”; (iii) the maximum prepayment fees and penalties that may be charged or collected under the terms of the loan documents; (iv) all prepayment fees of penalties that are incurred by the borrower if the loan refinances a previous loan made or currently held by the same lender; (v) all compensation paid directly or indirectly to a mortgage broker, including a broker that originates a home loan in its own name in a table-funded transaction, not otherwise included in clauses (i) or (ii); (vi) the cost of all premiums financed by the creditor, directly or indirectly for any credit life, credit disability, credit unemployment or credit property insurance, or any other life or health insurance, or any payments financed by the creditor directly or indirectly for any debt cancellation or suspension agreement or contract, except that insurance premiums or debt cancellation or suspension fees calculated and paid on a monthly basis shall not be considered financed by the creditor. Points and fees shall not include the following: (1) taxes, filing fees, recording and other charges and fees paid to or to be paid to a public official for determining the existence of or for perfecting, releasing or satisfying a security interest; and, (2) fees paid to a person other than a lender or to the mortgage broker for the following: fees for flood certification; fees for pest infestation; fees for flood determination; appraisal fees; fees for inspections performed before closing; credit reports; surveys; notary fees; escrow charges so long as not otherwise included under clause (i); title insurance premiums; and fire insurance and flood insurance premiums, if the conditions in sections 226.
4 (d) (2) of Title 12 of the Code of Federal Regulations or 209 CMR 32.
04(4)(b) of the Code of Massachusetts Regulations, as amended from time to time, are met. For open-end loans, the points and fees shall be calculated by adding the total points and fees known at or before closing, including the maximum prepayment penalties that may be charged or collected under the terms of the loan documents, plus the minimum additional fees the borrower would be required to pay to draw down an amount equal to the total credit line.
“Total loan amount”, the total amount the consumer will borrow, as reflected by the face amount of the note.
nonprofit organization Section 3. A creditor may not make a high-cost home mortgage loan without first receiving certification from a counselor with a third-party nonprofit organization approved by the United States Department of Housing and Urban Development, a housing financing agency of this state, or the regulatory agency which has jurisdiction over the creditor, that the borrower has received counseling on the advisability of the loan transaction. Counseling shall be allowed in whole or in part by telephonic means. The commissioner shall maintain a list of approved counseling programs. A high cost home mortgage loan originated by a lender in violation of this section shall not be enforceable. At or before closing a high cost home mortgage loan, the lender shall obtain evidence that the borrower has completed an approved counseling program.
presumption Section 4. A lender shall not make a high-cost home mortgage loan unless the lender reasonably believes at the time the loan is consummated that 1 or more of the obligors, will be able to make the scheduled payments to repay the home loan based upon a consideration of the obligor’s current and expected income, current and expected obligations, employment status, and other financial resources other than the borrower’s equity in the dwelling which secures repayment of the loan.
There shall be a presumption that the borrower is able to make the scheduled payments if, at the time the loan is made, and based on the monthly payments as calculated based on the index plus the margin at the time the loan is made, in the case of loans with lower introductory rates: (1) the borrower’s scheduled monthly payments on the loan, including principal, interest, taxes, insurance, and assessments, combined with the scheduled payments for all other debt, do not exceed 50 per cent of the borrowers documented and verified monthly gross income, if the borrower has sufficient residual income as defined in the guidelines established in 38 CFR 36.
4337(e) and VA form 26-6393 to pay essential monthly expenses after paying the scheduled monthly payments and any additional debt.
Section 5. A high-cost home mortgage loan shall not contain any provision for prepayment fees or penalties.
Section 6. A high-cost home mortgage loan shall not include the financing of points and fees greater than 5 per cent of the total loan amount or $800, whichever is greater.
Section 7. A high-cost home mortgage loan shall not contain a provision that increases the interest rate after default. This section shall not apply to interest rate changes in a variable rate loan otherwise consistent with the home loan documents provided that the change in the interest rate is not triggered by the event of default or the acceleration of indebtedness.
Section 8. A high-cost home mortgage loan shall not contain a scheduled payment that is more than twice as large as the average of earlier scheduled payments. This subsection shall not apply when the payment schedule is adjusted to the seasonal or irregular income of the borrower.
Section 9. A high-cost home mortgage loan shall not contain a demand feature that permits the lender to terminate the loan in advance of the original maturity date and to demand repayment of the entire outstanding balance, except in the following circumstances:(1) there is fraud or material misrepresentation by the consumer in connection with the loan that is not induced by the lender, its employees, or agents;(2) the consumer fails to meet the repayment terms of the agreement for any outstanding balance and after the consumer has been contacted in writing and afforded a reasonable opportunity to pay the outstanding balance as outlined within the repayment terms of the agreement; or(3) there is any bona fide action or inaction by the consumer that adversely and materially affects the lender’s security for the loan, or any right of the lender in such security as provided in the loan agreement.
Section 1. Aliens may take, hold, transmit and convey real property, and no title to real property shall be invalid on account of the alienage of a former owner.
estate; effect Section 10. No expectant estate shall be defeated or barred by an alienation or other act of the owner of the precedent estate, nor by the destruction of such precedent estate by disseisin, forfeiture, surrender or merger.
Section 11. The two preceding sections shall not prevent the barring of estates tail in the manner provided in chapter one hundred and eighty-three, nor an expectant estate from being defeated in a manner provided for or authorized by the person creating such estate.
removal Section 12. Fixtures annexed to the freehold by a life tenant or by his assigns may be removed during the continuance of the life estate or within a reasonable time thereafter; and in determining what are fixtures, the common law rules prevailing between a landlord and a tenant for years shall govern. This section shall not affect the right of the owner of land to make a different provision by will or otherwise as to the removal of fixtures, nor impair or affect the provisions of any will or other instrument by which an estate for life in land is created or limited.
than owner of fee Section 14. If the supreme judicial court or the probate court for the county where the land lies finds that wood or timber, standing on land the use and improvement of which belongs, for life or otherwise, to a person other than the owner of the fee therein, has ceased to improve by growth, or ought for any cause to be cut, it may appoint a trustee to sell and convey said wood or timber to be cut and carried away within a time to be limited in the order of sale, to hold and invest the proceeds thereof after paying therefrom the expenses of such sale, to pay over the income, above the taxes and other expenses of the trust, to the person entitled to such use and improvement while his right thereto continues, and thereafter to pay the principal of the fund to the owner of such land. If wood or timber has been cut as aforesaid, no more thereof shall be cut on such land by the person entitled to such use and improvement without permission from said court. Such sale, if authorized by a probate court, shall be made in the manner provided by law for the sale of real property by guardians; and if such sale is authorized by the supreme judicial court, the trustees shall give to such person as the court shall designate a bond, for the use and benefit of the persons interested in the proceeds of the sale, conditioned on the faithful discharge of the trust; and the court may remove the trustee, and appoint another in his stead.
recording and registration of memoranda of lis pendens; persons affected Section 15. (a) A wit of entry or other proceeding that affects the title to real property or the use and occupation thereof or the buildings thereon, shall not have any effect except against the parties thereto, their heirs and devisees and persons having actual non-record notice thereof, until a memorandum containing the names of the parties to the proceeding, the court in which it is pending, the date of the writ or other commencement thereof, the name of the town where the real property liable to be affected thereby lies and a description of the real property sufficiently accurate for identification is recorded in the registry of deeds for the county or district where the real property lies; but this section shall not apply to attachments, levies of execution or proceedings in the probate courts, other than proceedings under equity jurisdiction. No recorded affidavit or other recorded instrument, including any affidavit under section 5B of chapter 183, suggesting that the proceeding has been commenced shall have any effect on the title to real property nor provide any notice thereof, constructive or actual, and any person acquiring an interest in the real property, other than a party to the proceeding, and heir or devisee of the party or any person having actual non-record notice thereof, shall be deemed to be without the notice, and the person’s interest shall be exempt from any judgment entered in the proceeding, unless and until the instrument has been endorsed by a justice of the court in which the proceeding is pending in accordance with subsection (b). The memorandum may be dissolved at any time by recording in the registry of deeds a notice of voluntary dissolution duly executed and acknowledged by the party who executed the memorandum, by that party’s successor in interest or by an attorney of record for either of the parties.
(b) Any party seeking a memorandum of lis pendens under this section shall commence the underlying proceeding by means of a verified complaint or other complaint as is required under the rules of court to include a certification by the claimant made under the penalties of perjury that the complainant has read the complaint, that the facts stated therein are true and that no material facts have been omitted therefrom. The complaint shall name as defendants all owners of record and any party in occupation under a written lease. Upon motion of a party, if the subject matter of the action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon, a justice of the court in which the action is pending shall make a finding to that effect and endorse the finding upon the memorandum. Notwithstanding the preceding sentence, the court on its own motion may decline to endorse the memorandum of lis pendens, if the court does order the temporary equitable relief as will preserve the status quo pending further proceedings. If the memorandum is approved ex parte, it shall contain an additional finding that either (1) the defendant is not then subject to the jurisdiction of the court in that action, or (2) there is a clear danger that the defendant, if notified in advance of the endorsement of the memorandum, will convey, encumber, damage or destroy the property or the improvements thereon. A register of deeds or assistant recorder of the land court shall not accept for recording or registration a memorandum under this section, unless it contains the endorsement and is accompanied by an affidavit stating that the plaintiff or his attorney has served notice of the allowance thereof by certified mail addressed to all parties to the action.
(c) If the memorandum is approved ex parte, any party aggrieved thereby may move at any time for dissolution of the memorandum, and the court shall hear the motion forthwith and in any event not later than 3 days after the date on which notice of the motion was given to the claimant. At the hearing the claimant shall have the burden of justifying any finding in the ex parte order that is challenged by the party who is aggrieved thereby. A party may also file a special motion to dismiss the claimant’s action if that party believes that the action or claim supporting the memorandum of lis pendens is frivolous. The special motion to dismiss, unless heard at the time the claimant first applied for a judicial endorsement under subsection (b), shall be heard at the same time as the hearing on the motion to dissolve the memorandum of lis pendens. If the court determines that the action does not affect the title to the real property or the use and occupation thereof or the buildings thereon, it shall dissolve the memorandum of lis pendens. The special motion to dismiss shall be granted if the court finds that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In ruling on the special motion to dismiss the court shall consider verified pleadings and affidavits, if any, meeting the requirements of the Massachusetts rules of civil procedure. If the court allows the special motion to dismiss, it shall award the moving party costs and reasonable attorneys fees, including those incurred for the special motion, any motion to dissolve the memorandum of lis pendens, and any related discovery. Nothing in this section shall affect the right of the moving party to any other remedy otherwise authorized by law. All discovery proceedings shall be stayed upon the filing of the special motion pursuant to this section; but the court, on motion and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of entry of the order ruling on the special motion. In the event there are un-adjudicated claims remaining after the dismissal of any claim pursuant to which the memorandum of lis pendens was recorded, the court shall order the entry of partial judgment with respect to the claim dismissed pursuant to this section.
(d) Any party aggrieved by a ruling under subsection (c) or by the denial of an ex parte motion for a memorandum of lis pendens, may appeal pursuant to the first or second paragraphs of section 118 of chapter 231. Thirty days after the entry of an order dissolving a memorandum of lis pendens, or of an order or judgment dismissing the claimant’s action as provided hereinabove, the order or judgment shall become final unless the party seeking the memorandum has filed an appeal under this paragraph and records notice thereof within the 30 day period in the registry of deeds for the county or district in which the real property lies. Attested copies of orders, judgments and notices of appeal shall refer to the book and page of the recorded memorandum and shall be accepted for recording in the registry of deeds. The recording of an attested copy of the order or judgment or of the order of dissolution, in either case without a timely appeal therefrom being filed, or of a judgment dismissing the appeal, or the recording of a voluntary dismissal of the memorandum of lis pendens as provided in subsection (a), shall be conclusive evidence that the action or proceeding which was the subject of the memorandum of lis pendens does not affect the title to the real property or the use and occupation thereof or the buildings thereon.
(e) Nothing in this section shall deprive an owner of registered land from proceeding under section 114 of chapter 185 to challenge the validity of the registration of a memorandum of lis pendens.
(f) For the purposes of this section, a proceeding arising under a statute, ordinance or by-law regulating land use, including without limitation one related to zoning or wetlands regulation, is not a proceeding that affects title to real property or the use and occupation thereof or the buildings thereon.
disposition; recording Section 16. At any time after final judgment or a decree in favor of the defendant, or after the discontinuance, dismissal or other final disposition, by consent of parties or otherwise, of a proceeding mentioned in the preceding section, or in case of the non-entry of the writ, petition or bill of complaint, the clerk of the court wherein such judgment, decree, discontinuance, dismissal or other final disposition is recorded, or out of which such writ issued or to which such petition or bill of complaint was addressed, shall upon demand give a certificate of the fact of such judgment, decree, discontinuance, dismissal, final disposal or non-entry, and such certificate may be recorded in the registry in which the original record mentioned in said section was made.
Section 17. A judgment or decree, at law or in equity, rendered after June eighth, eighteen hundred and ninety-two, affecting the title to real property, shall not have any effect except against the parties thereto, their heirs and devisees and persons having actual notice thereof, unless a certified copy of the record thereof has been recorded in the registry of deeds for the county or district where the land lies, with a memorandum of the town where the land lies and a description thereof sufficiently accurate for identification if the record of the judgment or decree does not give those particulars. If a notice of the pendency of the action has been duly recorded in the registry of deeds, the record of the judgment or decree may be made within sixty days after its rendition, and the entry of an ordinary attachment of real property in the registry of deeds shall be considered notice of the pendency of the action.
acknowledgment; recordation Section 17A. No agreement for the purchase and sale of real estate or any extension thereof shall be received for record in any registry of deeds unless such agreement or extension thereof is acknowledged by the parties agreeing to sell such real estate or one of them. No agreement for the purchase and sale of real estate which is recorded shall have any effect as against persons other than the parties thereto after the expiration of a period of ninety days from the date provided for the delivery of the deed by such agreement, or by such agreement as extended, as the case may be, unless prior to the expiration of such period an action or suit shall have been commenced to enforce such agreement and a memorandum like that described in section fifteen shall have been recorded in said registry of deeds; provided, that such agreement shall not be deemed to be extended, for the purposes of this section, by any instrument which is not recorded within ninety days from the date provided for the delivery of the deed by such agreement, or by such agreement as last previously extended.
If an individual, firm or corporation holds funds entrusted to him pursuant to a written agreement for the sale of real property and the written agreement expressly authorizes the individual, firm or corporation, as escrow agent, to continue to hold the funds in the event of a dispute between the buyer and seller concerning entitlement to the funds, no claim shall be maintained against the individual, firm or corporation, as escrow agent, whether as trustee, stakeholder or otherwise, if the escrow agent has complied with the mutual written instructions of the buyer and seller, if any, and any order or judgment of a court or final decision of an arbitrator with regard to accounting for or disbursing the funds. In an action commenced with regard to entitlement to such escrowed funds, a party to the action may file a motion seeking an order to have the funds paid into court by the escrow agent. Written notice of the motion shall be given by the moving party to all other parties and to the escrow agent. The escrow agent shall pay the funds into court within ten days of receipt of such order or within such other time as provided by the court.
consisting of a certain dwelling house; required statements and information Section 17B. Every application for a mortgage loan on real estate consisting of a dwelling house with accommodations for four or less separate households and occupied or to be occupied in whole or in part by the obligor on the mortgage debt shall be made on a printed form which shall contain the following two statements in type of at least two points larger than the other type used on said application:(1) The responsibility of the attorney for the mortgagee is to protect the interest of the mortgagee.
(2) The mortgagor may, at his own expense, engage an attorney of his own selection to represent his own interests in the transaction.
In addition to the foregoing, every application and copy thereof shall, if applicable, in type of at least the same size as the above required statements, disclose information relative to the following, which shall not be deemed to be an advertisement as defined in section one of chapter one hundred and forty D:(a) The approximate expiration date of the note.
(b) The rate of interest charged.
(c) A statement that as of the expiration date of said note, the mortgagee may demand payment of said note, may rewrite the note by agreement at a greater or lesser rate of interest, or may, by agreement, allow payments to be made on said note at the same, or a lesser or a greater rate of interest.
A printed copy of the above statements and information shall be given to the mortgagor at the time of making the application.
to applicant Section 17C. Any mortgagee, when processing an application for a loan to be secured by a first mortgage on residential property located in the commonwealth of four or less units and occupied or to be occupied in whole or in part by the mortgagor shall, upon the issuance to the applicant of a letter of commitment to or denial of such application, include therein a statement that the applicant has thirty days from the date of said letter to request a copy of any report, wherever and by whomever prepared, utilized by the mortgagee in connection with any such application and containing an opinion as to the value of said residential property. Upon written request of the said applicant, a copy of any such report shall be provided without additional charge or fee within thirty days from the date of such request; provided, however, that a mortgagee shall not be required to make such copy available if the applicant rescinds the transaction. A mortgagee, appraiser or employee or other agent of the mortgagee shall not be liable in damages to the applicant, or to the seller or agent of the seller of such property on account of the disclosure or the contents of any such report.
lender; timely notification of decision Section 17D. (a) For the purposes of this section, the following words and terms shall have the following meanings:“Commissioner”, the commissioner of banks.
“Date of application”, the date upon which a signed mortgage application together with payment of the required application fees are received by the first mortgage lender.
“First mortgage lender”, any person, including individuals, corporations, associations, partnerships and trusts engaged in the business of making loans secured by first mortgages to finance the acquisition or initial construction of a dwelling or to refinance an existing first mortgage loan on residential property located in the commonwealth of four units or less occupied or to be occupied in whole or in part by the mortgagor.
“Mortgage borrower”, any applicant(s), either individually or jointly, for a loan to finance the acquisition or initial construction of a dwelling, or for a loan to refinance an existing first mortgage loan by giving to a first mortgage lender an interest in residential property located in the commonwealth of four units or less occupied or to be occupied in whole or in part by the mortgagor.
(b) A first mortgage lender shall provide, upon written or oral request by a prospective mortgage borrower for such information, a good faith estimate, expressed as either a dollar amount or a percentage of the total amount of the prospective loan, of all charges for “settlement services”, as that term is defined in 12 of the USC 2602, which the mortgage borrower is likely to incur. Upon request by a prospective mortgage borrower, the first mortgage lender shall also provide any or all of the written materials described in paragraph (c).
(c) Unless previously provided to a prospective mortgage borrower in accordance with paragraph (b), a first mortgage lender shall provide the following information to a prospective mortgage borrower at the same time such lender first provides a first mortgage loan application form to any such borrower:(1) a uniform one-page worksheet prescribed in regulations promulgated by the commissioner, written in plain and simple language, and including relevant examples, where necessary, which would allow such borrower to calculate easily through simple arithmetic all the charges and fees that such borrower is likely to incur in securing such mortgage from the first mortgage lender. The said worksheet shall commence with the following statement, printed in no smaller than ten-point boldface type: “CLOSING AND SETTLEMENT COSTS MAY VARY AMONG MORTGAGE LENDERS. YOU MAY WISH TO COMPARE THESE CHARGES IN CONSIDERING THE TOTAL COST OF YOUR MORTGAGE”.
(2) a copy of the most recent publication, currently entitled “Settlement Costs”, available from the United States Secretary of Housing and Urban Development which describes information concerning the nature and costs of real estate settlement services.
(3) in the case of a first mortgage lender offering variable rate residential mortgage loans, not otherwise subject to Administrative Bulletin 13-2C (Revised) of the commissioner and, provided that the prospective mortgage borrower has requested information about or has submitted an application for a variable rate mortgage loan, a copy of the most recent publication available from the Federal Home Loan Bank Board which describes information concerning variable or adjustable rate mortgages, currently entitled “Consumer Handbook on Adjustable Rate Mortgages”.
(4) a uniform model disclosure statement prescribed in regulations promulgated by the commissioner, written in plain and simple language, to aid prospective mortgage borrowers in understanding the mortgage application and approval process. The statement shall include, but need not be limited to, descriptions of the time periods generally required for processing of mortgage applications, the notices required by paragraph (d), and by the federal Equal Credit Opportunity Act, and by comparable provisions of the General Laws, and terms and practices common in the commonwealth relative to mortgage lending including, but not limited to, interest rate commitments.
A first mortgage lender may require the mortgage borrower to execute, a signed acknowledgment of the receipt of the information required under the above paragraphs (1) to (4), inclusive as a prerequisite to acceptance of any mortgage application as complete; provided, however, that in any transaction involving more than one applicant, the first mortgage lender need not provide such information to more than one of such applicants.
(d) Not later than twenty-one business days after the date of application for a first mortgage loan, the first mortgage lender shall mail or deliver to a prospective mortgage borrower whose application is not substantially complete, an oral or written statement of all verification information required to make a decision on the said application, together with an indication of which items have been received but are not complete and which items have not been received as of the date of the statement. Such verification information shall be limited only to those items actually required for the approval of the loan application. A first mortgage lender need not provide the statement required hereunder if such lender has either sent the notice required under paragraph (e), or has made a decision on the said application and has communicated the same to the mortgage borrower.
(e) A first mortgage lender shall send written notice to any mortgage borrower whose application has been determined to be substantially complete, immediately upon the making of such determination. The front page of such notification shall include in boldface capital letters in no smaller than twelve-point type the title “IMPORTANT DISCLOSURE—PLEASE READ”, to be accompanied by the following statement printed in no smaller than ten-point type: “We now consider your mortgage application complete. A third party, such as a purchaser of mortgage loans from us, may require additional information from you in order to process your application. We will contact you right away if we need more information. If not, you will be notified of our decision on your application (which may be to offer a different amount than you applied for) no later than thirty days from the date of this notice, as required by the federal Equal Credit Opportunity Act and comparable provisions of Massachusetts law. For information on how to assert your rights under these laws, consult the informational material provided as part of your application materials”.
(f) Failure to comply with the provisions of paragraph (c) or (d) shall constitute an unfair or deceptive act or practice pursuant to the provisions of chapter ninety-three A.
recover possession of land or tenements; jurisdiction Section 18. No person shall make an entry into land or tenements except in cases where his entry is allowed by law, and in such cases he shall not enter by force, but in a peaceable manner.
No person shall attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to chapter two hundred and thirty-nine or such other proceedings authorized by law. The superior and district courts shall have jurisdiction in equity to enforce the provisions of this section.
recordation Section 19. If real property has been conveyed by deed on a condition therein expressed, which is not a mortgage and if proceedings based upon right of entry for breach of such conditions have not been barred by section thirty-one A of chapter two hundred and sixty, the grantor, his heirs and devisees upon breach of such condition may enter on the granted premises in order to revest the title; and a certificate of such entry, made and sworn to before any officer duly qualified to administer oaths by two competent witnesses and recorded within thirty days after such entry in the registry of deeds for the county or district where the land lies, or a duly certified copy of the record of such certificate, shall, after the expiration of three years from such entry, be prima facie evidence of such breach and entry. If a grantor, his heirs or devisees made such entry and certificate and filed the certificate as herein required prior to June ninth, eighteen hundred and ninety-eight, said certificate or a duly certified copy of the record thereof shall have like force and effect.
No proceeding based upon any right of entry or forfeiture which arises by reason of the termination of an estate in land created prior to the second day of January, nineteen hundred and fifty-six, and regarded as an estate in fee simple under section one of chapter one hundred and eighty-six shall be maintained either at law or in equity in any court unless a person having such right or his attorney, agent, guardian, conservator or parent files on or before the first day of January, nineteen hundred and sixty-six in the registry of deeds, or in the case of registered land in the registry district of the land court for the district in which the land is situated, a statement in writing, duly sworn to, describing the land and the nature of the right and the deed or other instrument creating it, and where it may be found if recorded or registered, and in case of registered land naming the holder or holders of the outstanding certificate of title and stating the number of said certificate, and in case of land not registered naming the person or persons then appearing of record to own the fee subject to such right, or shown by the records of the tax assessors at the last prior assessment date to be the owner or owners thereof. Such statement shall be received and recorded or registered upon payment of the fee required by law, and shall be indexed in the grantor index under the person or persons so named, and in case of registered land, noted on the certificate of title. The register and assistant recorder shall also keep a separate list of such statements.
This section shall apply to all such rights whether or not the owner thereof is a corporation or a charity or a government or governmental subdivision, or is under any disability or out of the commonwealth, and it shall apply notwithstanding any recitals in deeds or other instruments heretofore or hereafter recorded.
This section shall not apply to any leasehold estate which has less than fifty years of its term unexpired, or to any leasehold estate mentioned in section one of said chapter one hundred and eighty-six, where rent due under a written instrument has been paid or tendered to the owner of the reversion within a period of twenty years prior to the first day of January, nineteen hundred and fifty-seven.
remainder, executory devise or other estate in expectancy Section 2. If a contingent remainder, executory devise or other estate in expectancy is so granted or limited to a person that in case of his death before the happening of the contingency the estate would descend to his heirs in fee simple, he may, before the happening of the contingency, sell, assign or devise the land subject to the contingency.
property; descent or discontinuance Section 20. No descent or discontinuance shall take away or defeat any right of entry or of action for the recovery of real property.
to inform grantee Section 21. If real property upon which any encumbrance exists is conveyed by deed or mortgage, the grantor, in whatever capacity he may act, shall before the consideration is paid, by exception in the deed or otherwise make known to the grantee the existence and nature of such prior encumbrance so far as he has knowledge thereof.
Section 22. Whoever conveys real property by a deed or mortgage which contains a covenant that it is free from all encumbrances shall, if it appears by a public record that an actual or apparent encumbrance, known or unknown to him, exists thereon, be liable in an action of contract to the grantee, his heirs, executors, administrators, successors or assigns, for all damages sustained in removing the same.
applicability Section 23. Conditions or restrictions, unlimited as to time, by which the title or use of real property is affected, shall be limited to the term of thirty years after the date of the deed or other instrument or the date of the probate of the will creating them, except in cases of gifts or devises for public, charitable or religious purposes. This section shall not apply to conditions or restrictions existing on July sixteenth, eighteen hundred and eighty-seven, to those contained in a deed, grant or gift of the commonwealth, or to those having the benefit of section thirty-two.
limitation of actions Section 23A. No action, suit, or proceeding shall be maintained either at law or in equity in any court to recover damages or to compel the removal, alteration, or relocation of any structure by reason of any violation of any private restriction or condition in the nature of a restriction by which the use of real property is affected in regard to: (a) building set-back requirements from front, side, or rear property lines, (b) the size, type, number of dwelling units, or number of stories of any structure, (c) the addition of any porch, garage, sign, bay window or similar addition, or the location or construction of any driveway, fence or wall, or (d) the materials used or the expenditures made for construction, unless such action, suit, or proceeding is commenced within six years next after the completion of such building, addition, or other construction.
For the purposes of this section, the record of assessment of any house or other structure for taxation shall be prima facie evidence of the completion of such house or structure by the first day of January of the year of assessment.
This section shall not be construed as extinguishing, limiting or abridging any defense against any such action, suit or proceeding which would otherwise be available nor as affecting sections nineteen to twenty-three, inclusive, or sections twenty-four to thirty, inclusive.
national origin or sex; validity; exception Section 23B. A provision in an instrument relating to real property which purports to forbid or restrict the conveyance, encumbrance, occupancy, or lease thereof to individuals of a specified race, color, religion, national origin or sex shall be void. Any condition, restriction or prohibition, including a right of entry or a possibility of reverter, which directly or indirectly limits the use for occupancy of real property on the basis of race, color, religion, national origin or sex shall be void, excepting a limitation on the basis of religion on the use of real property held by a religious or denominational institution or organization or by an organization operated for charitable or educational purposes which is operated, supervised or controlled by or in connection with a religious organization.
restrictive provisions Section 23C. Any provision in an instrument relative to the ownership or use of real property which purports to forbid or unreasonably restrict the installation or use of a solar energy system as defined in section one A of chapter forty A or the building of structures that facilitate the collection of solar energy shall be void.
restrictive provisions Section 23D. Any restriction, reservation, condition, exception, or covenant in any subdivision plan, deed or other instrument of or pertaining to the transfer, sale, lease or use of property which would permit residential use of property but would prohibit a community residence for disabled persons shall, to the extent of such prohibition, be void.
curative period Section 24. When any owner of land the title to which is not registered, or of any interest in such land, signs an instrument in writing conveying or purporting to convey his land or interest, or in any manner affecting or purporting to affect his title thereto, and the instrument, whether or not entitled to record, is recorded, and indexed, in the registry of deeds for the district wherein such land is situated, and a period of ten years elapses after the instrument is accepted for record, and the instrument or the record thereof because of defect, irregularity or omission fails to comply in any respect with any requirement of law relating to seals, corporate or individual, to the validity of acknowledgment, to certificate of acknowledgment, witnesses, attestation, proof of execution, or time of execution, to recitals of consideration, residence, address, or date, to the authority of a person signing for a corporation who purports to be the president or treasurer or a principal officer of the corporation, such instrument and the record thereof shall notwithstanding any or all of such defects, irregularities and omissions, be effective for all purposes to the same extent as though the instrument and the record thereof had originally not been subject to the defect, irregularity or omission, unless within said period of ten years a proceeding is commenced on account of the defect, irregularity or omission, and notice thereof is duly recorded in said registry of deeds and indexed and noted on the margin thereof under the name of the signer of the instrument and, in the event of such proceeding, unless relief is thereby in due course granted.
Section 25. No indefinite reference in a recorded instrument shall subject any person not an immediate party thereto to any interest in real estate, legal or equitable, nor put any such person on inquiry with respect to such interest, nor be a cloud on or otherwise adversely affect the title of any such person acquiring the real estate under such recorded instrument if he is not otherwise subject to it or on notice of it. An indefinite reference means (1) a recital indicating directly or by implication that real estate may be subject to restrictions, easements, mortgages, encumbrances or other interests not created by instruments recorded in due course, (2) a recital or indication affecting a description of real estate which by excluding generally real estate previously conveyed or by being in general terms of a person’s right, title or interest, or for any other reason, can be construed to refer in a manner limiting the real estate described to any interest not created by instruments recorded in due course, (3) a description of a person as trustee or an indication that a person is acting as trustee, unless the instrument containing the description or indication either sets forth the terms of the trust or specifies a recorded instrument which sets forth its terms and the place in the public records where such instrument is recorded, and (4) any other reference to any interest in real estate, unless the instrument containing the reference either creates the interest referred to or specifies a recorded instrument by which the interest is created and the place in the public records where such instrument is recorded. No instrument shall be deemed recorded in due course unless so recorded in the registry of deeds for the county or district in which the real estate affected lies as to be indexed in the grantor index under the name of the owner of record of the real estate affected at the time of the recording. This section shall not apply to a reference to an instrument in a notice or statement permitted by law to be recorded instead of such instrument, nor to a reference to the secured obligation in a mortgage or other instrument appearing of record to be given as security, nor in any proceeding for enforcement of any warranty of title.
this section and Sec.
27 to 30; definitions; sufficiency of description; presumptions Section 26. All restrictions on the use of land or construction thereon which run with the land subject thereto and are imposed by covenant, agreement, or otherwise, whether or not stated in the form of a condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking shall be subject to this section and sections twenty-seven to thirty, inclusive, except (a) restrictions in leases, mortgages and other security instruments, (b) restrictions in orders of taking by the commonwealth or a political subdivision or public instrumentality thereof made before January first, nineteen hundred and seventy and (c) conservation, preservation, agricultural preservation, and affordable housing restrictions, as defined in section thirty-one which have the benefit of section thirty-two, and other restrictions held by any governmental body, if the instrument imposing such conservation, preservation, agricultural preservation, affordable housing or other restriction is duly recorded and indexed in the grantor index in the registry of deeds or registered in the registry district of the land court for the county or district wherein the land lies so as to affect its title, and describes the land by metes and bounds or by reference to a recorded or registered plan showing its boundaries. “Governmental body”, as referred to in this section and sections thirty-two and thirty-three, means the United States or the commonwealth, acting through any of its departments, divisions, commissions, boards or agencies, or any political subdivision or public instrumentality thereof or any public authority or any quasi-public entity or any instrumentality created pursuant to chapter forty F, whether acting for its own account, or as agent or designee for or assignees of any private individual or private entity which has been required to place such restriction in its chain of title as a condition to receiving financial or other assistance from the United States or the commonwealth, acting through any of its departments, divisions, commissions, boards or agencies, or any political subdivision or public instrumentality thereof or any public authority or any quasi-public entity or any instrumentality created pursuant to said chapter forty F.
For the purposes of this section and sections twenty-seven to thirty, inclusive:—1. “Subject parcel” or “subject land” means land upon which such a restriction is imposed.
2. “Benefited land” means land for the benefit of which such a restriction is imposed.
3. “Public records” shall be limited to records filed in the registries of deeds, probate courts and the land court and its registry districts.
4. A description of land shall be sufficient if it specifies the city or town in which the land lies and the place of record in the public records where there is a recorded or registered plan or instrument giving the boundaries of the land and identifies the land with reference to said plan or instrument and, if the land is registered, specifies the certificate or certificates of title thereof.
5. Restrictions may be deemed imposed as part of a common scheme if imposed of record on various parcels in such manner that each owner is entitled to enforce the restrictions against the other parcels, although there may be variations in the restrictions among the various parcels.
Unless the instrument imposing the restriction provides otherwise, it is to be presumed that a restriction imposed as part of a common scheme is enforceable for the benefit of any land only when such land either (a) is bounded by a street by which the subject parcel is bounded or (b) lies in a block surrounded by the same streets as the subject parcel, or (c) is contiguous to said block except for streets or ways.
limitations on enforceability; extension of period Section 27. No restriction imposed after December thirty-first, nineteen hundred and sixty-one shall be enforceable:—(a) unless the person seeking enforcement (1) is a party to the instrument imposing the restriction and it is stated to be for his benefit or is entitled to such benefit as a successor to such party, or (2) is an owner of an interest in benefited land which either adjoins the subject parcel at the time enforcement is sought or is described in the instrument imposing the restriction and is stated therein to be benefited, and(b) after thirty years from the imposition of the restriction, unless (1) the restriction is imposed as part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways, and provision is made in the instrument or instruments imposing it for extension for further periods of not more than twenty years at a time by owners of record, at the time of recording of the extension, of fifty per cent or more of the restricted area in which the subject parcel is located, and an extension in accordance with such provision is recorded before the expiration of the thirty years or earlier date of termination specified in the instrument and names or is signed by one or more of the persons appearing of record to own the subject parcel at the time of such recording, and in case of such recording, twenty years, or the specified extension term if less than twenty years, has not expired after the recording of any such extension without the recording of a further like extension; or (2) in the case of any other restriction, a notice of restriction is recorded before the expiration of the thirty years, and in case of such recording, twenty years have not expired after the recording of any notice of restriction without the recording of a further notice of restriction.
A notice of restriction under this section shall not extend the period of enforceability unless it (a) is signed by a person then entitled of record to the benefit of the restriction and describes his benefited land, if any, (b) describes the subject parcel, (c) names one or more of the persons appearing of record to own the subject parcel at the time, and (d) specifies the instrument imposing the restriction and its place of record in the public records.
limitations on enforceability; extension of period Section 28. No restriction imposed before January first, nineteen hundred and sixty-two shall be enforceable after the expiration of fifty years from its imposition unless a notice of restriction is recorded before the expiration of such fifty years or before January first, nineteen hundred and sixty-four, whichever is later, and in case of such recording, twenty years have not expired after the recording of any notice of restriction without the recording of a further notice of restriction.
A notice of restriction under this section shall not extend the period of enforceability unless (a) it meets the requirements specified by the last paragraph of section twenty-seven, or (b) the restriction was imposed as part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways and the notice (1) is signed by a person then entitled of record to the benefit of the restriction and describes his benefited land, if any, (2) describes the subject parcels to be affected, and (3) specifies the way or ways, public or open to public use, upon which each such parcel abuts, or nearest to which it is located and its street number, if any, and (4) specifies the instrument imposing the restriction and its place of record in the public records. The holder of record of a recorded mortgage upon any land may sign a notice under this section in place of the owner thereof if the notice specifies the mortgage and its place of record in the public records and names one or more of the persons appearing of record to own the land at that time.
Section 29. No notice or extension of restriction under sections twenty-seven or twenty-eight shall be effective against a subject parcel (a) if its title is registered, unless the notice or extension is noted on the certificate or certificates of title thereof or (b) if its title is not registered, unless (1) the notice or extension is indexed in the grantor index under the names of the persons named therein as owners of the subject parcel, (2) if the instrument imposing the restriction is recorded at a registry of deeds, the notice or extension is noted on the margin of the record of the instrument, and (3) if the instrument imposing the restriction is a will, a duplicate or certified copy of the notice or extension is filed with the records of the probate of the will. No notice under clause (b) of section twenty-eight shall be effective unless indexed in a special index which each register shall maintain arranged alphabetically by city or town and within each city or town, by the ways named, in which are listed the books and pages of record of the notices of restriction and of the instruments therein specified as creating them. Where an instrument imposes more than one restriction a notice or extension may, if it so specifies, apply only to a particular restriction or restrictions. A notice under section twenty-seven or twenty-eight may be given with respect to any number of parcels subject to the restriction and may be joined in by the owners of any number of parcels having the benefit thereof and may be signed in behalf of any person by an attorney or agent and on behalf of any person under disability by a guardian, conservator or parent. No notice given under section twenty-seven or twenty-eight shall entitle any person to enforce a restriction other than the person giving the notice and his successors in title, nor entitle anyone to enforce a restriction if at the time of recording of the notice the restriction is for any reason no longer enforceable.
Section 3. A contingent remainder shall take effect, notwithstanding any determination of the particular estate, in the same manner in which it would have taken effect if it had been an executory devise or a springing or shifting use, and shall, as well as such limitations, be subject to the rule respecting remoteness known as the rule against perpetuities, exclusive of any other supposed rule respecting limitations to successive generations or double possibilities; but this section, except so far as declaratory of existing law, shall apply only to instruments executed on or after April sixth, nineteen hundred and sixteen, and to wills and codicils revived or confirmed by a will or codicil executed on or after said date.
prerequisites; temporary injunction Section 30. No restriction shall in any proceeding be enforced or declared to be enforceable, whether or not the time for recording a notice or extension under section twenty-seven or twenty-eight has occurred, or such a notice or extension has been recorded, unless it is determined that the restriction is at the time of the proceeding of actual and substantial benefit to a person claiming rights of enforcement. There shall be a presumption that no restriction shall be of such actual and substantial benefit except in cases of gifts or devises for public, charitable or religious purposes, if any part of the subject land lies within a city or town having a population greater than one hundred thousand persons unless (1) such restriction at the time it was imposed is not more burdensome as to requirements for lot size, density, building height, set back, or other yard dimensions than such requirements established by restriction or restrictions applicable to the land of the persons for whose benefit rights of enforcement are claimed; or (2) such restriction is part of a common scheme applicable to four or more parcels contiguous except for any intervening streets or ways to land of the grantor or other premises purported to be benefited thereby; or (3) unless such restriction is in favor of contiguous land of the grantor. No restriction determined to be of such benefit shall be enforced or declared to be enforceable, except in appropriate cases by award of money damages, if (1) changes in the character of the properties affected or their neighborhood, in available construction materials or techniques, in access, services or facilities, in applicable public controls of land use or construction, or in any other conditions or circumstances, reduce materially the need for the restriction or the likelihood of the restriction accomplishing its original purposes or render it obsolete or inequitable to enforce except by award of money damages, or (2) conduct of persons from time to time entitled to enforce the restriction has rendered it inequitable to enforce except by award of money damages, or (3) in case of a common scheme the land of the person claiming rights of enforcement is for any reason no longer subject to the restriction or the parcel against which rights of enforcement are claimed is not in a group of parcels still subject to the restriction and appropriate for accomplishment of its purposes, or (4) continuation of the restriction on the parcel against which enforcement is claimed or on parcels remaining in a common scheme with it or subject to like restrictions would impede reasonable use of land for purposes for which it is most suitable, and would tend to impair the growth of the neighborhood or municipality in a manner inconsistent with the public interest or to contribute to deterioration of properties or to result in decadent or substandard areas or blighted open areas, or (5) enforcement, except by award of money damages, is for any other reason inequitable or not in the public interest.
Nothing herein shall prevent a court from issuing a temporary injunction or restraining order pending determination of enforceability of a restriction.
Section 31. A conservation restriction means a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use, or to forbid or limit any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs or other vegetation, (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition, (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or (g) other acts or uses detrimental to such retention of land or water areas.
A preservation restriction means a right, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to preservation of a structure or site historically significant for its architecture, archeology or associations, to forbid or limit any or all (a) alterations in exterior or interior features of the structure, (b) changes in appearance or condition of the site, (c) uses not historically appropriate, (d) field investigation, as defined in section twenty-six A of chapter nine, without a permit as provided by section twenty-seven C of said chapter, or (e) other acts or uses detrimental to appropriate preservation of the structure or site.
An agricultural preservation restriction means a right, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land appropriate to retaining land or water areas predominately in their agricultural farming or forest use, to forbid or limit any or all (a) construction or placing of buildings except for those used for agricultural purposes or for dwellings used for family living by the land owner, his immediate family or employees; (b) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such a manner as to adversely affect the land’s overall future agricultural potential; and (c) other acts or uses detrimental to such retention of the land for agricultural use. Such agricultural preservation restrictions shall be in perpetuity except as released under the provisions of section thirty-two. All other customary rights and privileges of ownership shall be retained by the owner including the right to privacy and to carry out all regular farming practices.
A watershed preservation restriction means a right, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land appropriate to retaining land predominantly in such condition to protect the water supply or potential water supply of the commonwealth, to forbid or limit any or all (a) construction or placing of buildings; (b) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance except as needed to maintain the land and (c) other acts or uses detrimental to such watershed. Such watershed preservation restrictions shall be in perpetuity except as released under the provisions of section thirty-two. All other customary rights and privileges of ownership shall be retained by the owner, including the right to privacy.
An affordable housing restriction means a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition in any deed, mortgage, will, agreement, or other instrument executed by or on behalf of the owner of the land appropriate to (a) limiting the use of all or part of the land to occupancy by persons, or families of low or moderate income in either rental housing or other housing or (b) restricting the resale price of all or part of the property in order to assure its affordability by future low and moderate income purchasers or (c) in any way limiting or restricting the use or enjoyment of all or any portion of the land for the purpose of encouraging or assuring creation or retention of rental and other housing for occupancy by low and moderate income persons and families. Without in any way limiting the scope of the foregoing definition, any restriction, easement, covenant or condition placed in any deed, mortgage, will, agreement or other instrument pursuant to the requirements of the Rental Housing Development Action Loan program or the Housing Innovations Fund program established pursuant to section three of chapter two hundred and twenty-six of the acts of nineteen hundred and eighty-seven or pursuant to the requirements of any program established by the Massachusetts housing partnership fund board established pursuant to chapter four hundred and five of the acts of nineteen hundred and eighty-five, including without limitation the Homeownership Opportunity Program, or pursuant to the requirements of sections twenty-five to twenty-seven, inclusive, of chapter twenty-three B, or pursuant to the requirements of any regulations or guidelines promulgated pursuant to any of the foregoing, shall be deemed to be an affordable housing restriction within the meaning of this paragraph.
restrictions Section 32. No conservation restriction, agricultural preservation or watershed preservation restriction as defined in section thirty-one, held by any governmental body or by a charitable corporation or trust whose purposes include conservation of land or water areas or of a particular such area, and no preservation restriction, as defined in said section thirty-one, held by any governmental body or by a charitable corporation or trust whose purposes include preservation of buildings or sites of historical significance or of a particular such building or site, and no affordable housing restriction as defined in said section thirty-one, held by any governmental body or by a charitable corporation or trust whose purposes include creating or retaining or assisting in the creation or retention of affordable rental or other housing for occupancy by persons or families of low or moderate income shall be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land or on account of the benefit being assignable or being assigned to any other governmental body or to any charitable corporation or trust with like purposes, or on account of the governmental body the charitable corporation or trust having received the right to enforce the restriction by assignment, provided (a) in case of a restriction held by a city or town or a commission, authority or other instrumentality thereof it is approved by the secretary of environmental affairs if a conservation restriction, the commissioner of the metropolitan district commission if a watershed preservation restriction, the commissioner of food and agriculture if an agricultural preservation restriction, the Massachusetts historical commission if a preservation restriction, or the director of housing and community development if an affordable housing restriction, and (b) in case of a restriction held by a charitable corporation or trust it is approved by the mayor, or in cities having a city manager the city manager, and the city council of the city, or selectmen or town meeting of the town, in which the land is situated, and the secretary of environmental affairs if a conservation restriction, the commissioner of the metropolitan district commission if a watershed preservation restriction, the commissioner of food and agriculture if an agricultural preservation restriction, the Massachusetts historical commission if a preservation restriction, or the director of housing and community development if an affordable housing restriction.
Such conservation, preservation, agricultural preservation, watershed preservation and affordable housing restrictions are interests in land and may be acquired by any governmental body or such charitable corporation or trust which have power to acquire interest in the land, in the same manner as it may acquire other interests in land. Such a restriction may be enforced by injunction or other proceeding, and shall entitle representatives of the holder to enter the land in a reasonable manner and at reasonable times to assure compliance. Such a restriction may be released, in whole or in part, by the holder for such consideration, if any, as the holder may determine, in the same manner as the holder may dispose of land or other interests in land, but only after a public hearing upon reasonable public notice, by the governmental body holding the restriction or if held by a charitable corporation or trust, by the mayor, or in cities having a city manager the city manager, the city council of the city or the selectmen of the town, whose approval shall be required, and in case of a restriction requiring approval by the secretary of environmental affairs, the Massachusetts historical commission, the commissioner of the metropolitan district commission, the commissioner of food and agriculture, or the director of housing and community development, only with like approval of the release.
No restriction that has been purchased with state funds or which has been granted in consideration of a loan or grant made with state funds shall be released unless it is repurchased by the land owner at its then current fair market value. Funds so received shall revert to the fund sources from which the original purchase, loan, or grant was made, or, lacking such source, shall be made available to acquire similar interests in other land. Agricultural preservation restrictions shall be released by the holder only if the land is no longer deemed suitable for agricultural or horticultural purposes or unless two-thirds of both branches of the general court, by a vote taken by yeas and nays, vote that the restrictions shall be released for the public good. Watershed preservation restrictions shall be released by the holder only if the land is deemed by the commissioner of the metropolitan district commission and the secretary of environmental affairs to no longer be of any importance to the water supply or potential water supply of the commonwealth or unless two-thirds of both branches of the general court, by a vote taken by yeas and nays, vote that the restrictions shall be released for the public good.
Approvals of restrictions and releases shall be evidenced by certificates of the secretary of environmental affairs or the chairman, clerk or secretary of the Massachusetts historical commission, or the commissioner of food and agriculture, or the director of housing and community development or the city council, or selectmen of the town, as applicable duly recorded or registered.
In determining whether the restriction or its continuance is in the public interest, the governmental body acquiring, releasing or approving shall take into consideration the public interest in such conservation, preservation, watershed preservation, agricultural preservation or affordable housing and any national, state, regional and local program in furtherance thereof, and also any public state, regional or local comprehensive land use or development plan affecting the land, and any known proposal by a governmental body for use of the land.
This section shall not be construed to imply that any restriction, easement, covenant or condition which does not have the benefit of this section shall, on account of any provisions hereof, be unenforceable. Nothing in this section or section thirty-one and section thirty-three shall diminish the powers granted by any general or special law to acquire by purchase, gift, eminent domain or otherwise to use land for public purposes.
Nothing in this section shall prohibit the department of telecommunications and energy from authorizing the taking of easements for the purpose of utility services provided that (a) said department shall require the minimum practicable interference with farming operations with respect to width of easement, pole locations and other pertinent matters, (b) the applicant has received all necessary licenses, permits, approvals and other authorizations from the appropriate state agencies, (c) the applicant shall compensate the owner of the property in the same manner and the same fair market value as if the land were not under restriction.
Section 33. Any city or town may file with the register of deeds for the county or district in which it is situated a map or set of maps of the city or town, to be known as the public restriction tract index, on which may be indexed conservation, preservation, agricultural preservation, watershed preservation and affordable housing restrictions and restrictions held by any governmental body. Such indexing shall indicate sufficiently for identification (a) the land subject to the restriction, (b) the name of the holder of the restriction, and (c) the place of record in the public records of the instrument imposing the restriction. Maps used by assessors to identify parcels taxed, and approximate boundaries without distances, shall be sufficient, and, where maps by parcels are not available, addition to other maps of approximate boundaries of restricted land shall be sufficient. If the names of the holders and the instrument references cannot be conveniently shown directly on the maps, they may be indicated by appropriate reference to accompanying lists. Such maps may also indicate similarly, so far as practicable, (a) any order or license issued by a governmental body entitled to be recorded or registered, (b) the approximate boundaries of any historic or architectural control district established under chapter forty C or any special act, ordinance or by-law where a certificate of appropriateness may be required for exterior changes, (c) any landmark certified by the Massachusetts historical commission pursuant to section twenty-seven of chapter nine, (d) any other land which any governmental body may own in fee, or in which it may hold any other interest, and (e) such additional data as the filing governmental body may deem appropriate.
Whenever any instrument of acquisition of a restriction or order or other appropriate evidence entitled to be indexed in a public restriction tract index is at the option of the holder of the right to enforce it submitted for such indexing, the register shall make, or require the holder of the right to enforce the restriction or order or interest to make, appropriate additions to the tract index.
The maps shall be in such form that they can be readily added to, changed, and reproduced, and shall be a public record, appropriately available for public inspection. If any governmental body, other than a city or town in which the land affected lies, holds a right to enforce a restriction or order or an interest entitled to be indexed in a public restriction tract index for any city or town which has not filed such an index, or if the secretary of environmental affairs or the Massachusetts historical commission or the commissioner of food and agriculture or the director of housing and community development approves a conservation or preservation restriction or agricultural or watershed preservation restriction or affordable housing restriction held by a charitable corporation or trust so entitled, and the city or town does not within one year after written request to the mayor or selectmen file a sufficient map or set of maps for the purpose, the holding governmental body or approving secretary, director or commission may do so.
The registers of deeds, or a majority of them, may from time to time make and amend rules and regulations for administration of public restriction tract indexes, and the provisions of section thirteen A of chapter thirty-six shall not apply thereto. No such rule, regulation or any amendment thereof shall take effect until after it has been approved by the attorney general. New tract indexes may be filed, from time to time, upon compliance with such rules and regulations as may be necessary to assure against omission of prior additions and references still effective.
conveyances or devises; abolition Section 33A. When any interest in real or personal property is limited, mediately or immediately, in an otherwise effective testamentary conveyance or devise, in form or in effect, to the heirs or next of kin of the conveyor, or to a person or persons who on the death of the conveyor are some or all of his heirs or next of kin, such conveyees or devisees acquire the interest that the conveyance or devise purports to create by purchase and not by descent.
conveyances; abolition Section 33B. When any interest in real or personal property is limited, in an otherwise effective inter vivos conveyance, in form or in effect, to the heirs or next of kin of the conveyor, which conveyance creates one or more prior interests in favor of a person or persons in existence, such interest that the conveyance purports to create operates in favor of such heirs or next of kin by purchase and not by descent.
estate from trustees; binding effect on trust; recording conditions Section 34. Any recordable instrument purporting to affect an interest in real estate executed by any person or persons who, in the records of the registry of deeds for the county or district in which the real estate lies, are or appear to be the trustees of a trust shall be binding on the trust in favor of a purchaser or other person relying in good faith on such instrument, notwithstanding (a) inconsistent provisions of the trust, unless said trust is recorded in said registry of deeds, with the place of recording referred to in some instrument in the chain of title to the real estate affected, (b) any amendment, revocation, removal or resignation of trustee, appointment of additional trustee, or other matter affecting the trust, unless the same is recorded in said registry of deeds and noted on the margin of said trust in said registry, or (c) any inadequacy in the consideration recited. As used in this section the term “trust” shall not include a trust under a will.
Section 35. Notwithstanding section 25 to the contrary, a certificate sworn to or stated to be executed under the penalties of perjury, and in either case signed by a person who from the records of the registry of deeds or of the registry district of the land court, for the county or district in which real estate owned by a nontestamentary trust lies, appears to be a trustee thereunder and which certifies as to: (a) the identity of the trustees or the beneficiaries thereunder; (b) the authority of the trustees to act with respect to real estate owned by the trust; or (c) the existence or nonexistence of a fact which constitutes a condition precedent to acts by the trustees or which are in any other manner germane to affairs of the trust, shall be binding on all trustees and the trust estate in favor of a purchaser or other person relying in good faith on the certificate. The certificate most recently recorded in the registry of deeds for the county or district in which the real estate lies shall control.
tenant in tail Section 4. Land held in fee tail, except an estate tail in remainder, shall be liable for the debts of the tenant in tail, both in his lifetime and after his decease, as if held in fee simple; and if taken on execution or sold by executors, administrators, guardians or conservators, the creditor or purchaser shall hold such land in fee simple.
heirs Section 5. If land is granted or devised to a person and after his death to his heirs in fee, however the grant or devise is expressed, an estate for life only shall vest in such first taker, and a remainder in fee simple in his heirs.
of issue Section 6. In a limitation of real or personal property by deed, will or other instrument in writing, executed after April thirtieth, eighteen hundred and eighty-eight, the words “die without issue”, or “die without leaving issue”, or “have no issue”, or “die without heirs of the body”, or other words importing either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall, unless a contrary intention clearly appears by the instrument creating such limitation, mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue.
kin” construed Section 6A. In a limitation of real or personal property to a class described as the “heirs” or “next of kin” of a person, or described by words of similar import, to take effect in enjoyment upon the happening of an event within the period of the rule against perpetuities, the class shall, unless a contrary intention appears by the instrument creating such limitation, be determined as if such person died at the time of the happening of such event.
tenancy by the entirety Section 7. A conveyance or devise of land to two or more persons or to husband and wife, except a mortgage or a devise or conveyance in trust, shall create an estate in common and not in joint tenancy, unless it is expressed in such conveyance or devise that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an estate in joint tenancy. A devise of land to a person and his spouse shall, if the instrument creating the devise expressly so states, vest in the devisees a tenancy by the entirety.
A conveyance or devise of land to a person and his spouse which expressly states that the grantees or devisees shall take jointly, or as joint tenants, or in joint tenancy, or to them and the survivor of them shall create an estate in joint tenancy and not a tenancy by the entirety. In a conveyance or devise to three or more persons, words creating a joint tenancy shall be construed as applying to all of the grantees, or devisees, regardless of marital status, unless a contrary intent appears from the tenor of the instrument.
A conveyance or devise of land to two persons as tenants by the entirety, who are not married to each other, shall create an estate in joint tenancy and not a tenancy in common.
Section 8. Real estate, including any interest therein, may be transferred by a person to himself jointly with another person in the same manner in which it might be transferred by him to another person, and a conveyance of real estate by a person to himself and his spouse as tenants by the entirety shall create a tenancy by the entirety.
information; records; penalty Section 8A. In any city or town which accepts this section, the assessors shall, if they have reason to believe that the name and address of the grantee of record in a transfer of real estate is not the name and address of the owner of the real estate, by written notice, request such grantee to submit the name and address of said owner within five days of the receipt of such notice. The assessors shall maintain a record of the names and addresses of such owners which shall be open to public inspection. Whoever violates any of the provisions of this section after being so notified shall be punished by a fine of not more than fifty dollars.
estate Section 9. A conveyance by a tenant for life or years which purports to grant a greater estate than he possesses or can lawfully convey shall not work a forfeiture of his estate, but shall pass to the grantee all the estate which such tenant can lawfully convey.
of appointment Section 1. (a) A nonvested property interest is invalid unless:(1) when the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive; or(2) the interest either vests or terminates within ninety years after its creation.
(b) A general power of appointment not presently exercisable because of a condition precedent is invalid unless:(1) when the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than twenty-one years after the death of an individual then alive; or(2) the condition precedent either is satisfied or becomes impossible to satisfy within ninety years after its creation.
(c) A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:(1) when the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than twenty-one years after the death of an individual then alive; or(2) the power is irrevocably exercised or otherwise terminates within ninety years after its creation.
(d) In determining whether a nonvested property interest or a power of appointment is valid under clause (1) of paragraph (a), clause (1) of paragraph (b), or clause (1) of paragraph (c), the possibility that a child will be born to an individual after the individual’s death is disregarded.
of law Section 10. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
Section 11. This chapter shall supersede the rule of the common law known as the rule against perpetuities.
power of appointment Section 2. (a) Except as provided in paragraphs (b) and (c) and in paragraph (a) of section five, the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.
(b) For purposes of this chapter, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of (i) a nonvested property interest or (ii) a property interest subject to a power of appointment described in paragraph (b) or paragraph (c) of section one, the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.
(c) For purposes of this chapter, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.
Section 3. Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the ninety years allowed by clause (2) of paragraph (a), clause (2) of paragraph (b) or clause (2) of paragraph (c) of section one if:(1) a nonvested property interest or a power of appointment becomes invalid under said section one;(2) a class gift is not, but might become, invalid under said section one and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or(3) a nonvested property interest that is not validated by clause (1) of paragraph (a) of said section one can vest but not within ninety years after its creation.
Section 4. Section one shall not apply to:(1) a nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of (i) a premarital or postmarital agreement, (ii) a separation or divorce settlement, (iii) a spouse’s election, (iv) a similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties, (v) a contract to make or not to revoke a will or trust, (vi) a contract to exercise or not to exercise a power of appointment, (vii) a transfer in satisfaction of a duty of support, or (viii) a reciprocal transfer;(2) a fiduciary’s power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;(3) a power to appoint a fiduciary;(4) a discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;(5) a nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;(6) a nonvested property interest in or a power of appointment with respect to a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants or their beneficiaries or spouses the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or(7) a property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state.
validity Section 5. (a) An option in gross with respect to an interest in land or minerals or a preemptive right in the nature of a right of first refusal in gross with respect to an interest in land or minerals becomes invalid if it is not exercised within thirty years after its creation.
(b) A lease to commence at a time certain or upon the happening of a future event becomes invalid if its term does not actually commence in possession within thirty years after its execution.
(c) A nonvested easement in gross becomes invalid if it does not vest within thirty years after its creation.
(d) Any option in gross with respect to an interest in land or minerals, or a preemptive right in the nature of a right of first refusal in gross with respect to an interest in land or minerals, or a lease, or a nonvested easement in gross which option in gross, preemptive right in the nature of a right of first refusal in gross, lease, or nonvested easement in gross held by a government or government agency or subdivision or by a public instrumentality or public authority or by a quasi-public entity, or by an instrumentality created pursuant to chapter forty F becomes invalid if it is not exercised or becomes vested within fifty years after its creation.
interests or powers of appointment; time of creation; judicial reform of prior dispositions Section 6. (a) Except as extended by paragraph (b), this chapter applies to a nonvested property interest or a power of appointment that is created on or after the effective date of this chapter. For purposes of this section, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.
(b) If a nonvested property interest or a power of appointment was created before the effective date of this chapter and is determined in a judicial proceeding, commenced on or after the effective date of this chapter, to violate the commonwealth’s rule against perpetuities as that rule existed before the effective date of this chapter, a court upon the petition of an interested person may reform the disposition in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.
subject to right of entry for condition broken; term Section 7. A fee simple determinable in land or a fee simple in land subject to a right of entry for condition broken shall become a fee simple absolute if the specified contingency does not occur within thirty years from the date when such fee simple determinable or such fee simple subject to a right of entry becomes possessory. If such contingency occurs within said thirty years the succeeding interest, which may be an interest in a person other than the person creating the interest or his heirs, shall become possessory or the right of entry exercisable notwithstanding the rule against perpetuities.
Section 8. This chapter shall apply to both legal and equitable interests.
Section 9. Except as provided in the first sentence of section seven, this chapter shall not be construed to invalidate or modify the terms of any limitation which would have been valid prior to January first, nineteen hundred and fifty-five.
section defining term Section 1. The terms defined in this chapter may be used in any will or trust and, except as otherwise provided in the instrument, shall have the full force, meaning and effect of the words by which they are so defined. Adoption or employment in substance of a defined term in such instrument shall be a sufficient incorporation by reference of the applicable section of this chapter in effect at the date of the execution of the instrument, but this provision shall not preclude other methods or incorporation of any section in part only or subject to such modification as the incorporating instrument may provide. An attorney at law preparing a will or trust who uses a term defined in this chapter shall furnish to the testator or settlor a copy of the section of this chapter by which the term is defined; provided, however, that failure to do so shall not affect the validity of the incorporation by reference.
of powers Section 2. The following powers shall be known as the “Statutory Optional Fiduciary Powers” and may be given to the fiduciary in a will or trust by specific reference thereto in said will or trust in addition to all common law and other statutory powers:(1) Said fiduciary shall have the power without approval of any court:(a) to retain any property in the form in which it is received and, while a trust is revocable by the settlor, to purchase or retain any property the purchase or retention of which is requested by the settlor;(b) to accept additional property in any trust hereunder from any source and upon any special terms;(c) with respect to any tangible personal property, to repair, store, insure or otherwise care for such property and to pay such shipping or other expense relating to such property as the fiduciary deems advisable;(d) to abandon any property which the fiduciary determines to be worthless;(e) to invest principal and income in such property as the fiduciary may determine, and, without limiting the generality of the foregoing, to invest in investment company shares or in shares or undivided portions of any common trust fund established by any fiduciary without notice to any beneficiary;(f) to sell, exchange or otherwise dispose of the property at public or private sale on such terms as he may determine, no purchaser being bound to see to the application of any proceeds;(g) to lease the property on such terms as he may determine although the term may extend beyond the time when it becomes distributable;(h) to decide all questions between principal and income according to law;(i) to keep registered securities in the name of a nominee;(j) to pay, compromise or contest claims or controversies, including claims for estate or inheritance taxes, in such manner as he may determine;(k) to participate in such manner as he may determine in any reorganization, merger or consolidation of any entity the securities of which constitute part of the property held, and to deposit such securities with voting trustees or committees of security holders even though under the terms of deposit such securities may remain deposited beyond the time when they become distributable, to vote upon any securities in person or by special, limited or general proxy, with or without power of substitution, and otherwise to exercise all the rights that may be exercised by any security holder in his individual capacity;(l) to borrow such amounts as he may consider necessary to obtain cash for any purposes for which funds are required in administering the estate or trust, and in connection therewith, to mortgage or otherwise encumber any property on such conditions as he may determine although the term of the loan may extend beyond the time that would otherwise be needed for completing the administration of the estate or beyond the term of the trust;(m) to allot in or towards satisfaction of any payment, distribution or division, in such manner as he may determine, any property held at then current fair market values determined by him;(n) to hold trusts and shares undivided or at any time to hold the same or any of them set apart one from another;(o) to lend, borrow, buy or sell on commercially reasonable terms to or from any fiduciary acting under another instrument made by the testator or settlor; and(p) to combine all or part of the property for investment with property held by a fiduciary acting under another instrument upon substantially similar terms made by the testator or settlor or by his or her spouse, except that property qualifying for a marital, orphan or charitable deduction for federal tax purposes may not be so combined.
(2) Such powers shall be subject to such exceptions, limitations and conditions as to property otherwise qualifying for marital, orphan or charitable deductions allowable under federal tax laws as are contained in all special provisions relating thereto in the instrument or as may be necessary to conform to the requirements of federal tax laws at any time applicable for qualification of such property for such deduction, including consent of the surviving spouse or child, if any, of the testator or settlor, if so required. Such powers, except as expressly limited in the instrument, may be exercised by the person or persons for the time being serving as such fiduciary, whether or not named therein. Powers conferred on the fiduciary shall be exercised only in accordance with a reasonable discretion. No power conferred upon the fiduciary in this section shall be exercised in favor of any person then serving as fiduciary nor in favor of his estate or his creditors, or the creditors of his estate.
Section 3. The following discretionary powers, which shall be known as the “Statutory Disability Discretionary Powers”, may be conferred by reference upon any fiduciary, and, unless otherwise provided in the instrument by which it is conferred, shall apply to all distributions to be made under the terms of the instrument or under powers or discretions granted to the fiduciary by the instrument to a minor, to a person under such other age as may be specified in the instrument, or to a person whom the fiduciary determines to be unable to properly care for his property by reason of advanced age, mental weakness or physical incapacity:The fiduciary may make distribution to any person to whom this discretion is applicable or apply or distribute the same for his benefit or account, or retain all or any part of the same, whether principal or income, in trust for him and thereafter at any time or times distribute part or all to him or apply or distribute the same for his benefit or account. When the discretion hereunder terminates, whether by reason of the age, or otherwise, the fiduciary shall distribute any property retained in trust for such person hereunder to such person, or to his guardian or conservator or to his estate, as the case may be. Such discretion shall not apply to any distribution to which the spouse, surviving spouse or surviving child of the testator or settlor making the instrument is entitled either outright or under a trust or share which qualifies for a marital or orphan deduction under applicable federal tax laws, except that distributions may be made to or applied for the benefit of such spouse, surviving spouse or surviving child, as the case may be.
Section 4. The following discretionary powers, which shall be known as the “Statutory Principal Discretionary Powers”, may be conferred by reference upon any fiduciary, and, unless otherwise provided in the instrument by which it is conferred, the term “primary beneficiary” in the statutory discretion shall mean each person currently entitled under the instrument to a share of income, or, if no person is currently entitled to income as of right or for priority of consideration, each person to whom income may currently be paid in the discretion of the fiduciary.
The fiduciary may at any time pay to or for the benefit of the primary beneficiary, the spouse of the primary beneficiary and children of the primary beneficiary under the age of twenty-five years such amounts of the principal held for the benefit of the primary beneficiary as the fiduciary deems advisable, giving reasonable consideration to other resources available to the distributee, for the comfort, maintenance, support or benefit of the distributee. The fiduciary may at any time pay to or for the benefit of other issue of the primary beneficiary and spouses and surviving spouses of issue of the primary beneficiary such amounts of the principal as the fiduciary deems necessary, after use of other resources available to the distributee so far as practicable without undue hardship, for the comfort, maintenance and support of the distributee and consistent with the best interests of the primary beneficiary and a due regard for the interests of all persons affected. Said discretion may be exercised even though the share of principal held for the primary beneficiary is thereby exhausted. Said discretion to pay principal to or for the benefit of any person includes the discretion after his death to pay or reimburse his estate for expenses incurred prior to his death and for reasonable funeral and burial expenses. If continuation of a trust or share has become impractical, the fiduciary may terminate it by distribution to the primary beneficiary or primary beneficiaries of the trust or share.
Principal, which in the exercise of such discretion is paid to or used for the benefit of any issue of the primary beneficiary or spouse or surviving spouse of such issue, shall be charged against any share of income or principal thereafter existing for such person or for any ancestor or issue of such person or for the spouse or surviving spouse of such person, ancestor or issue, unless the fiduciary upon equitable considerations shall otherwise determine. While the spouse or surviving spouse or surviving child of the testator or settlor is primary beneficiary of any trust or share which qualifies for a marital or orphan deduction under applicable federal tax laws, this discretion shall not apply to such trust or share except to permit the fiduciary to pay principal to or apply it for the benefit of such spouse or surviving spouse or surviving child, as the case may be. This discretion shall not be exercised in favor of any person then serving as such fiduciary who is otherwise eligible except for his maintenance or support nor in favor of his estate or his creditors or the creditors of his estate.
Chapter 185: Section 1. Jurisdiction; place of sittings; rules and forms of procedure Section 1. The land court department established under section one of chapter two hundred and eleven B shall be a court of record, and wherever the words “land court”, or wherever in this chapter the word “court” is used in that context, they shall refer to the land court department of the trial court, and the words “judge of the land court” or the word “judge”, in context, shall mean an associate justice of the trial court appointed to the land court department. The land court department shall have exclusive original jurisdiction of the following matters:(a) Complaints for the confirmation and registration and complaints for the confirmation without registration of title to land and easements or rights in land held and possessed in fee simple within the commonwealth, with power to hear and determine all questions arising upon such complaints, and such other questions as may come before it under this chapter, subject to all rights to jury trial and of appeal provided by law. The proceedings upon such complaints shall be proceedings in rem against the land, and the judgments shall operate directly on the land and vest and establish title thereto. A certified copy of the judgment of confirmation and registration shall be filed and registered in the registry district or districts where the land or any portion thereof lies, as provided in section forty-eight, and a certificate of title in the form prescribed by law shall be issued pursuant thereto. Immediately upon the entry of a judgment of confirmation without registration, the recorder shall cause a certified copy of the same to be recorded in the registry of deeds for the district or districts where the land or any portion thereof lies, and thereafter, the land therein described shall be dealt with as unregistered land.
(a1/2) Complaints affecting title to registered land, with the exception of actions commenced pursuant to chapter two hundred and eight or two hundred and nine.
(b) Proceedings for foreclosure of and for redemption from tax titles under chapter sixty.
(c) Actions to recover freehold estates under chapter two hundred and thirty-seven. In such an action brought in accordance with section forty-seven of chapter two hundred and thirty-six, where the tenant is entitled under clause (2) of section nine of chapter one hundred and nine A to retain the real estate as security for repayment of the consideration paid therefor by him, said court may determine the amount of such consideration and may order a judgment for possession upon being satisfied that such amount, with lawful interest, has been paid or tendered by the plaintiff to the defendant.
(d) Petitions to require actions to try title to real estate, under sections one to five, inclusive, of chapter two hundred and forty.
(e) Complaints to determine the validity of encumbrances, under sections eleven to fourteen, inclusive, of chapter two hundred and forty.
(f) Complaints to discharge mortgages, under section fifteen of chapter two hundred and forty.
(g) Complaints under section twenty-seven of chapter two hundred and forty to establish power or authority to transfer an interest in real estate.
(h) Complaints to determine the boundaries of flats, under section nineteen of chapter two hundred and forty.
(i) Complaints under sections sixteen to eighteen, inclusive, of chapter two hundred and forty to determine whether or not equitable restrictions are enforceable.
(j) Complaints under section twelve of chapter forty-two to determine county, city, town or district boundaries.
(j1/2) Complaints under section fourteen A of chapter two hundred and forty to determine the validity and extent of municipal zoning ordinances, by-laws and regulations.
It shall also have original jurisdiction concurrent with the supreme judicial court and the superior court of the following:—(k) All cases and matters cognizable under the general principles of equity jurisprudence where any right, title or interest in land is involved, including actions for specific performance of contracts.
(l) Actions under clauses (4) and (10) of section 3 of chapter 214, where any right, title or interest in real estate is involved.
(m) Actions under clause (8) of said section 3 of said chapter 214 or under section 9 of chapter 109A, where the property claimed to have been fraudulently conveyed or encumbered consists of rights, titles or interest in real estate only.
(n) Proceedings transferred to it under the provisions of section 4A of chapter 211.
(o) Civil actions of trespass to real estate involving title to real estate.
(p) Actions brought pursuant to the provisions of sections 7 and 17 of chapter 40A.
(q) Actions brought pursuant to sections 81B, 81V, 81Y, and 81BB of chapter 41.
(r) Actions brought pursuant to section 4 or 5 of chapter 249 where any right, title or interest in land is involved, or which arise under or involve the subdivision control law, the zoning act, or municipal zoning, subdivision, or land-use ordinances, by-laws or regulations.
(s) Actions brought pursuant to section 1 of chapter 245.
The land court department also shall have original jurisdiction concurrent with the probate courts of the following:—(t) Petitions for partition under chapter 241.
The court shall hold its sittings in Boston, but may adjourn from time to time to such other places as public convenience may require. In Suffolk county, the city council of Boston, and in other counties, the county commissioners, shall provide suitable rooms for the sittings of said court in the same building with, or convenient to, the probate court or the registry of deeds.
The court shall have jurisdiction throughout the commonwealth, shall always be open, except on Saturdays, Sundays and legal holidays, and shall have a seal with which all orders, processes and papers made by or proceeding from the court and requiring a seal shall be sealed; provided, that, if the convenience of the public so requires, the court shall be open on such Saturdays, not legal holidays, and during such hours thereof, as the judges thereof may determine. Its notices, orders and processes may run into any county and be returnable as it directs.
The court shall from time to time make general rules and forms for procedure, which, before taking effect, shall be approved by the supreme judicial court or by a justice thereof.
Chapter 185: Section 10. Registers of deeds acting as assistant recorders Section 10. The register of deeds in each district where land has been registered shall have the same authority as the recorder to make memoranda affecting the title of such land, and to enter and issue new certificates of title, and to affix the seal of the court to such certificates and duplicate certificates of title; but in executing the provisions of this chapter, registers of deeds shall be subject to the general direction of the recorder, in order to secure uniformity; and, in the performance of their duties under this chapter, the official designation of registers of deeds shall be assistant recorders for their respective registry districts.
Chapter 185: Section 100. Custody; investment; annual report Section 100. All money received by the recorder under the preceding section shall be paid to the state treasurer, who shall keep it invested, with the advice and approval of the governor and council, and shall make an annual report of the condition and income thereof.
Chapter 185: Section 101. Grounds for recovery from fund; exhausting other remedies; continuance of action to await result of tort action Section 101. A person who, without negligence on his part, sustains loss or damage by reason of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorandum in a registration book, or a person who, without negligence on his part, is deprived of land or of any estate or interest therein, by the registration of another person as owner of such land or of any estate or interest therein, through fraud or in consequence of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorandum in a registration book may institute an action in contract in the superior court for compensation from the assurance fund for such loss, damage or deprivation; but a person so deprived of land or of any estate or interest therein, having a right of action or other remedy for the recovery of such land, estate or interest, shall exhaust such remedy before resorting to the action of contract herein provided. This section shall not deprive the plaintiff of any action of tort which he may have against any person for such loss or damage or deprivation of land or of any estate or interest therein. If the plaintiff elects to pursue his remedy in tort, and also brings an action of contract under this chapter, the action of contract shall be continued to await the result of the action of tort.
Chapter 185: Section 102. Defendants in action to recover from fund Section 102. If such action of contract is brought to recover for loss or damage or for deprivation of land or of any estate or interest therein arising wholly through fraud, negligence, omission, mistake or misfeasance of the recorder, assistant recorder or of any of the examiners of title, in the performance of executive or ministerial duties, or of any of the assistants or clerks of the recorder, in the performance of their respective duties, the action shall be brought against the state treasurer as sole defendant. If such action is brought to recover for loss or damage or deprivation of land or of any estate or interest therein arising wholly through fraud, negligence, omission, mistake or misfeasance of some person other than the recorder, assistant recorder or the other officers and assistants above named, or arising jointly through the fraud, negligence, omission, mistake or misfeasance of such other person and the recorder, assistant recorder or other officers and assistants above named, such action shall be brought against both the state treasurer and such other person, as joint defendants.
Chapter 185: Section 103. Recovery upon judgment Section 103. If there are defendants other than the state treasurer and judgment is entered for the plaintiff against the state treasurer and against any of the other defendants, execution shall issue against such other defendants and be levied upon them. If the execution is returned unsatisfied in whole or in part, and the officer returning the same certifies that the amount due cannot be collected from the land or goods of such other defendants, a justice of the superior court shall direct the clerk to certify the amount due on the execution to the comptroller, who shall thereupon audit and certify the amount of the execution in the same manner as claims against the commonwealth, and the state treasurer shall pay the amount out of the assurance fund, without any further act or resolve making an appropriation therefor.
If judgment in such action cannot for any reason be entered against any of the other defendants it may be entered against the state treasurer alone, or, if it cannot be entered against all the other defendants, it may be entered against him and such of the other defendants as are found liable, and against whom judgment can lawfully be entered.
If judgment is entered against the state treasurer alone, the justice of the superior court before whom the action is tried shall direct the clerk to transmit to the comptroller a certificate of the entry of judgment and of the amount due, and the state treasurer shall pay the same upon the certificate of the comptroller, as above provided.
Chapter 185: Section 104. Deficiencies in fund Section 104. If the assurance fund at any time is not sufficient to meet the amount called for by such certificate of the comptroller the state treasurer shall make up the deficiency from any funds in the treasury not otherwise appropriated; and, in such case, any amounts thereafter received by the state treasurer on account of the assurance fund shall be transferred to the general funds of the treasury, until the amount paid on account of the deficiency shall have been made up.
Chapter 185: Section 105. Subrogation rights Section 105. In every case where payment has been made by the state treasurer under section one hundred and three, the commonwealth shall be subrogated to the rights of the plaintiff against any other parties or securities, and the state treasurer shall enforce the same, and the amounts recovered shall be placed to the account of the assurance fund.
Chapter 185: Section 106. Application and investment of income of fund Section 106. The income of the assurance fund shall be added to the principal and invested; except that whenever said fund amounts to two hundred thousand dollars the income thereof shall be used to defray, as far as may be, the expenses of the administration of this chapter.
Chapter 185: Section 107. Limitations upon liability and amount of compensation Section 107. The assurance fund shall not be liable for any loss, damage or deprivation occasioned by a breach of trust, whether express, implied or constructive, by any registered owner who is a trustee, or by the improper exercise of any power of sale in a mortgage, nor shall any plaintiff recover in contract as compensation under this chapter more than the fair market value of the land at the time when he suffered the loss, damage or deprivation thereof.
Chapter 185: Section 108. Limitations upon commencement time of actions Section 108. Actions of contract for compensation under this chapter by reason of any loss or damage or deprivation of land or any estate or interest therein shall be begun within six years after the cause of action accrued; but the plaintiff in an action for the recovery of the land or estate or interest therein in accordance with section one hundred and two may bring the action of contract for compensation within one year after the termination of such action. Said action of contract shall survive to the personal representative of the registered owner, unless barred in his lifetime; but the proceeds thereof shall be treated as real estate.
Chapter 185: Section 109. Evidence of value of land, estate or interest Section 109. In any action to recover damages for loss or damage or deprivation of land, or of any estate or interest therein, by the registration of another person as owner of such land, or of any estate or interest therein, the assessed valuation for taxation of the land, or of the estate or interest, if assessed separately, for the three years preceding the loss, damage or deprivation may be introduced by any party as evidence of the fair market value of such land, estate or interest; but if the valuation for any one year is so introduced, the valuations for all three years shall be introduced.
Chapter 185: Section 10A. Technical assistants; termination Section 10A. The assistant recorder in any registry, with the approval of the chief justice of the land court department, may appoint one or more technical assistants who shall perform such duties as the court may from time to time assign to them and whose compensation shall be the same as that of the first assistant register of deeds for said registry district. Subject to applicable laws, said assistant recorder, or in the case of abolished counties the state secretary or said assistant recorder, may terminate such technical assistant or assistants unless said chief justice objects in writing within 14 days after the notice of termination.
Chapter 185: Section 11. Oath and bond of recorder and assistant recorders; additional duties Section 11. The recorder and all assistant recorders shall be sworn before the chief justice of the land court, and a record thereof shall be made. They shall give bond in a sum to be fixed by the court, for the faithful performance of their official duties, before entering upon the same. They may administer oaths to persons appearing before them in matters pertaining to the registration of land, if an oath is required. They shall keep accurate accounts of all money received as fees or otherwise, which shall be subject to examination by the director of accounts, in the same manner as accounts of registers of deeds. The recorder shall pay over quarterly to the state treasurer all such money received by him either directly or through the assistant recorders, except that money so received for the cost of publication of notices and for the payment of services and expenses of sheriffs and deputy sheriffs shall be disbursed directly by the record. In case of the absence of an assistant recorder, the assistant register for the district, or if there is no assistant register, the person acting as clerk in the office of the register of deeds, shall perform the duties of the assistant recorder, who shall be responsible for him.
Chapter 185: Section 110. Dealing with registered land; filing letters of attorney Section 110. Any person may, by attorney, procure land to be registered and convey or otherwise deal with registered land, but the letters of attorney shall be acknowledged and filed with the recorder or the assistant recorder of the proper registry district and registered. Any instrument revoking such letter shall be acknowledged and registered in like manner.
Chapter 185: Section 111. Repealed, 1996, 481, Sec. 18 Chapter 185: Section 112. Statement alleging right or interest Section 112. Whoever claims any right or interest in registered land adverse to the registered owner arising after the date of original registration may, if no other provision is made in this chapter for registering the same, make a written statement setting forth fully his alleged right or interest, and how or under whom it was acquired, and a reference to the volume and page of the certificate of title of the registered owner, and a description of the land in which the right or interest is claimed. The statement shall be signed and sworn to, and shall state the adverse claimant’s residence, and designate a place where all notices may be served upon him. This statement shall be entitled to registration as an adverse claim, and the court, upon the motion of any party in interest, shall grant a speedy hearing upon the validity of such adverse claim, and shall enter such judgment thereon as justice and equity may require. If the claim is adjudged to be invalid, the registration shall be cancelled. If the court, after notice and a hearing, finds that a claim thus registered was frivolous or vexatious, it may tax the adverse claimant double costs.
Chapter 185: Section 113. Repealed, 1996, 481, Sec. 19 Chapter 185: Section 114. Changes upon registration book; grounds for motion to change Section 114. No erasure, alteration or amendment shall be made upon the registration book after the entry of a certificate of title or of a memorandum thereon and the attestation of the same by the recorder or an assistant recorder, except by order of the court. A registered owner or other person in interest may apply by motion to the court upon the ground that registered interests of any description, whether vested, contingent, expectant or inchoate, have terminated and ceased; or that new interests not appearing upon the certificate have arisen or been created; or that any error or omission was made in entering a certificate or any memorandum thereon; or that the name of any person on the certificate has been changed; or that the registered owner has married, or if registered as married, that the marriage has been terminated; or that a corporation which owned registered land and has been dissolved has not conveyed the same within three years after its dissolution; or upon any other reasonable ground; and the court may hear and determine the motion after notice to all parties in interest, and may order the entry of a new certificate, the entry or cancellation of a memorandum upon a certificate, or grant any other relief upon such terms, requiring security if necessary, as it may consider proper; but this section shall not authorize the court to open the original judgment of registration, and nothing shall be done or ordered by the court which shall impair the title or other interest of a purchaser holding a certificate for value and in good faith, or his heirs or assigns, without his or their written consent.
Chapter 185: Section 115. Filing and entitling Section 115. Petitions and motions filed under this chapter after original registration shall be filed and entitled in the original case in which the decree of registration was entered.
Chapter 185: Section 116. Mailing of notices Section 116. All notices required by or given under this chapter by the recorder or any assistant recorder, after original registration, shall be mailed to the person to be notified at the residence and post office address stated in the certificate of title, or in any registered instrument under which he claims an interest, in the office of the recorder or assistant recorder, relating to the parcel of land in question.
All notices and citations directed by special order of the court under this chapter, after original registration, may be served in the manner above stated, and the certificate of the recorder shall be conclusive proof of such service; but the court may in any case order different or further service, by publication or otherwise.
Chapter 185: Section 117. Authority of court Section 117. The court may make sectional plans showing registered lands, and in so doing may employ competent draftsmen and assistants.
Chapter 185: Section 118. Fraudulent conveyance; imprisonment term Section 118. Whoever, with intent to defraud, sells and conveys registered land, knowing that an undischarged attachment or any other encumbrance exists thereon, without informing the grantee of such attachment or other encumbrance before the consideration is paid, shall be punished by imprisonment in the state prison for not more than three years or in jail for not more than one year.
Chapter 185: Section 12. Examiners of title; appointment; acting for recorder Section 12. The chief justice of the land court department may appoint one or more examiners of title who shall be attorneys at law and he may also appoint a chief title examiner who shall perform all the duties of an examiner of title and such other duties in connection with the work of the court as the chief justice or justice may assign. Any deputy recorder appointed under section six, who is designated for the purpose by the chief justice by a writing filed in the recorder’s office, shall in case of absence, sickness or disability of the recorder, or if a vacancy exists in the office of the recorder, perform all of the official duties of the recorder. In case of the absence, sickness or disability of both the recorder and any deputy recorder designated to perform the official duties of the recorder, or of the recorder alone, if a vacancy exists in the position of the deputy recorder designated to perform the official duties of the recorder, the chief title examiner under the title of deputy recorder shall perform all of the official duties of the recorder.
Chapter 185: Section 13. Court officers Section 13. Upon request of the chief justice, the sheriff of any county other than Suffolk shall assign a deputy to attend the sittings of the land court department in that county. The chief justice for administration and management shall appoint two officers for attendance upon the sessions of said court in Suffolk county.
Chapter 185: Section 13A. Stenographers Section 13A. At the trial of any issue of fact in the land court department the first justice may appoint a stenographer, who shall be sworn and shall attend the trial or such part thereof as the first justice may direct, and perform like duties and receive the same compensation therefor as a stenographer appointed by the superior court who is not on salary; and the sums so payable for his attendance at court and for any transcript of his notes or part thereof furnished to the first justice by his direction shall be paid by the commonwealth, upon the certificate of the chief justice of the land court.
Chapter 185: Section 14. Salaries and expenses; practice of law; fees Section 14. The salary of the recorder of the land court department shall be seventy-five and forty-seven hundredths percent of the salary of the chief justice of said department and shall be paid, subject to appropriation, by the commonwealth. The salaries of the deputy recorder and the chief title examiner of said department shall be eighty-three and one-half percent of said recorder’s salary and shall be paid, subject to appropriation, by the commonwealth. The salaries of the assistant clerks of said department shall be seventy-seven percent of said recorder’s salary and shall be paid, subject to appropriation, by the commonwealth. The salaries of the title examiners of said department shall be paid by the commonwealth in accordance with the job classification and pay plan established, subject to appropriation, by the chief justice for administration and management.
The recorder, deputy recorder, chief title examiner, title examiners, and assistant clerks shall devote their entire time during business hours to their respective duties and shall not, directly or indirectly, engage in the practice of law.
All salaries and expenses of the court shall be paid by the commonwealth, except the salaries of the assistant recorders and the expenses incurred by them under this chapter and the compensation and expenses of their technical assistants appointed under section ten A, which shall be paid by the respective counties. All fees collected by the assistant recorders, except those received upon the filing of petitions, which shall be transmitted with the petitions to the recorder, shall be paid to their respective counties.
Chapter 185: Section 15. Trial of causes and questions of fact; jury trials; transfer of actions to superior court Section 15. Except as provided in section sixteen, all cases in the land court shall be tried and all questions of fact finally determined by the court, unless a timely demand for jury trial is made. In actions which are governed by the Massachusetts Rules of Civil Procedure such demand shall be made in accordance with said Rules. In all other actions the defendant with his answer or a plaintiff within ten days after the time limited by law for filing an appearance and answer, or within ten days after the time allowed by the court for filing an answer, may claim a trial by jury. If trial by jury is claimed, issues therefor upon any material question of fact shall be framed in the land court, and within thirty days after the expiration of the time for claiming a trial by jury, except as otherwise provided in section sixteen and in chapter two hundred and thirty-seven, copies thereof and of all other material papers in the case, certified by the recorder, shall be entered by the moving party in the superior court for the county where the land lies for a jury trial thereon. Failure to enter the copies and papers required by this section or section sixteen or by section twenty-three of chapter two hundred and thirty-seven within the times limited by said sections, respectively, shall constitute a waiver of the claim to a trial by jury, and thereafter the superior court shall have no further jurisdiction of the case. Upon the motion of either party in the superior court the cause shall be advanced for speedy hearing, but no matters shall be tried in the superior court except those specified in the issues. Questions of law arising in the superior court may be appealed by any party aggrieved by any opinion, direction, or judgment of the court to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the supreme judicial court. Questions of law arising in the land court on any decision, judgment, or decree may be appealed by any party aggrieved thereby to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven A, to the supreme judicial court. The land court, after any decision or judgment dependent upon questions of law, may report such decision or judgment, with so much of the case as is necessary for understanding such questions of law, for the determination of the appeals court.
The land court may, upon application of either party or upon its own motion, transfer to the superior court any action in which no right, title or interest to land is involved and which is not set forth in section one as being within the exclusive original jurisdiction of the land court.
Chapter 185: Section 15A. Repealed, 1973, 1114, Sec. 26 Chapter 185: Section 16. Appeal from judgment for jury trial Section 16. At any time before the expiration of thirty days from the entry of a judgment in a case, any party aggrieved by such judgment who files an affidavit in court that he has not received notice of the proceedings by registered mail and that any signature of his appearing on any receipt for registered mail filed with the papers in the case is neither his signature nor signed by one having authority so to do, and that in no other way did he receive actual notice, or have knowledge, of the pendency of the proceedings within the time allowed for filing an appearance and answer, may appeal from said judgment for a jury trial on any question of fact. Within said thirty days after such judgment, issues shall be framed in the land court and the case entered in the superior court for trial as provided in section fifteen.
Chapter 185: Section 17. Certification from clerk of superior court to land court; further proceedings before land court Section 17. The clerk of the superior court, after the determination of issues from the land court, shall certify to the land court such determination, which shall be conclusive upon said court as to such issues; but the land court may hear evidence upon other material questions of fact, and arguments upon the cause, before making its decision.
Chapter 185: Section 18, 19. Repealed, 1973, 1114, Sec. 27 Chapter 185: Section 2. Justices; administrative head Section 2. The land court department shall consist of 6 associate justices appointed to the land court department. The justice as provided under section one of chapter two hundred and eleven B as the chief justice for the land court department, in addition to his judicial powers and duties, shall, subject to the superintendence authority of the supreme judicial court as provided in section three of chapter two hundred and eleven and the administrative authority of the office of the chief justice for administration and management, be the administrative head of the land court department, and shall also have the power, authority and responsibility of a chief justice as set forth in section ten of chapter two hundred and eleven B. Said chief justice shall serve as the chief justice of that department for a five-year term and shall be eligible to be reappointed to serve additional five-year terms. Said chief justice may be removed from his position as chief justice when it is determined by the chief justice for administration and management to be in the best interests of the administration of justice.
Chapter 185: Section 20. Repealed, 1931, 387, Sec. 2 Chapter 185: Section 21. Costs Section 21. Costs shall be taxed and the collection enforced as in the superior court unless a different provision is made.
Chapter 185: Section 22. Filing of writs, complaints, bills and pleadings Section 22. Writs, complaints, bills and pleadings in proceedings in the land court may be filed with the recorder of the land court, or with the register of deeds for the district where the land or any part thereof lies, who shall immediately index the proceedings in the general index by the names of the parties, and transmit the papers to the recorder. The recorder shall cause copies of said papers to be made and transmitted to the said register of deeds, who shall file the same, and, if the original papers were filed with the recorder, index the proceedings as above provided. Whenever such papers contain a reference to any instruments recorded in the registry of deeds where they are filed, the register of deeds shall cause a minute thereof to be made upon the margin of such record.
Chapter 185: Section 23. Filing and indexing of final judgments and executions in county where land lies Section 23. The recorder shall transmit copies of all final judgments and executions in proceedings mentioned in section twenty-two to the register of deeds for the district where the land or any part thereof lies, who shall file and index the same in the manner provided in said section.
Chapter 185: Section 24. Reference to examiner; examination and report Section 24. The court may refer any such proceeding to one of the examiners appointed under section twelve, who shall examine and report on whatever matters of title or fact the court shall designate in its order of reference. Such reference, if made immediately upon the filing or entry of the proceeding, shall be subject to section thirty-seven, so far as applicable, but if made after an appearance is entered for a defendant or tenant, it shall be subject to section forty-three.
Chapter 185: Section 25. Powers of land court Section 25. In all matters within its jurisdiction, the court shall have all the powers which the superior court has including power to grant injunctions and restraining orders in accordance with the Massachusetts Rules of Civil Procedure as justice and equity may require, except that it shall hold no trials by jury.
Chapter 185: Section 25A. Power of land court to enforce orders, sentences, judgments and decrees; contempts Section 25A. The court shall have like power and authority for enforcing orders, sentences, judgments and decrees made or pronounced in the exercise of any jurisdiction vested in it, and for punishing contempts of such orders, sentences, judgments or decrees and other contempts of its authority, as are vested for such or similar purposes in the supreme judicial court in relation to any civil action pending therein. Commitments for such contempts may be made to any jail in the Commonwealth. Orders, precepts and processes issued by the court may be served in Suffolk county by the officer in attendance upon the sessions of said court in said county, or in any county by any deputy sheriff to whom they are directed.
Chapter 185: Section 26. Complaints for registration of title Section 26. Complaints for registration of title may be made by the following persons:First, Persons who claim, singly or collectively, to own the legal estate or easements or rights in land held and possessed in fee simple.
Second, Persons who claim, singly or collectively, to have the power of appointing or disposing of the legal estate or easements or rights in land held and possessed in fee simple.
Third, Infants and other persons under disability, by their legally appointed guardians; but the person in whose behalf the complaint is made shall be named as plaintiff.
Fourth, Corporations, by any officer duly authorized by a vote of the directors.
One or more tenants for a term of years, which is regarded as a fee simple in section one of chapter one hundred and eighty-six, shall not bring an action except jointly with those who claim the reversionary interest which makes up the fee simple at common law; nor shall a mortgagor, except as hereinafter provided, bring an action without the written consent of the mortgagee; nor shall one or more tenants bring an action who claim undivided shares less than a fee simple in the whole land described in the complaint for registration. If the holder of a mortgage does not consent to the complaint, it may be entered nevertheless, and the title registered, subject to the mortgage, which may be dealt with or foreclosed as if the land subject to it had not been registered. The judgment of registration in such case shall describe the mortgage, and shall state that it has not been registered and that registration is made subject to it, and shall provide that no subsequent certificate shall be issued and no further papers registered relative to such land after a foreclosure of such mortgage.
Chapter 185: Section 26A. Complaints for confirmation of title without registration Section 26A. Complaints for the confirmation of title without registration may be made by the following persons:First, Persons who claim, singly or collectively, to own a legal estate or easement or right in land held and possessed in fee simple.
Second, Persons who claim, singly or collectively, to have the power of appointing or disposing of a legal estate or easement or right in land held and possessed in fee simple.
Third, Infants and other persons under disability, by their legally appointed guardians; but the person in whose behalf the petition is made shall be named as plaintiff.
Fourth, Corporations, by any officer duly authorized by a vote of the corporation or its governing board.
Chapter 185: Section 27. Filing of petition; memorandum relating to petition; duties of assistant recorder Section 27. The petition may be filed with the recorder, or with the assistant recorder at the registry of deeds for any district where the land, or any part thereof, lies. Upon filing his petition, the petitioner shall forthwith cause to be filed in the registry of deeds for each district where any part of the land lies a memorandum stating that the petition for registration has been filed, the date and place of filing, and a copy of the description in the petition of the land or of so much thereof as is within the district. Such memorandum shall be recorded and indexed by the register with the records of deeds. Each assistant recorder shall also keep an index of all petitions in his district, and in every case where the petition is filed with him shall transmit the petition, the papers and plans filed therewith and such memorandum, when recorded, to the recorder.
Chapter 185: Section 28. Form and content of complaint Section 28. The complaint shall be in writing, signed and sworn to by each plaintiff or by a person duly authorized in his behalf. It shall contain a description of the land. It shall also state the name in full and the address of the plaintiff, and the names and addresses of the adjoining owners and occupants, if known; and if not known, it shall state what search has been made to find them.
Chapter 185: Section 29. Land bounded on public or private way; content of complaint Section 29. If the complaint describes the land as bounded on a public or private way, it shall state whether or not the plaintiff claims any and what land within the limits of the way, and whether the plaintiff desires to have the line of the way determined.
Chapter 185: Section 2A. Repealed, 1937, 409, Sec. 4 Chapter 185: Section 3. Scheduling of sessions Section 3. The court may be held by one judge and simultaneous sessions may be held, either in the same county or in different counties, and shall be so arranged as to insure a prompt discharge of its business.
Chapter 185: Section 30. Complaint or registration made subject to existing recorded mortgage or lease Section 30. If a complaint is made subject to an existing recorded mortgage, the holder of which has consented thereto, or subject to a recorded lease for a term exceeding seven years, or if the registration is to be made subject to such a mortgage or lease executed after the time of the complaint and before the date of the transcription of the judgment, the plaintiff, before a judgment of registration is entered, shall, if required by the court, file a certified copy of such mortgage or lease, and shall cause the original, or, in the discretion of the court, a certified copy thereof, to be presented for registration; and no registration fee shall be charged for registering such original mortgage or lease or such certified copy.
Chapter 185: Section 31. Inclusion of two or more parcels; joinder Section 31. A complaint may include two or more contiguous parcels of land, or two or more parcels which constitute one holding under one and the same title, within the same registry district. But two or more persons, who claim in the same parcels different interests which collectively make up the legal estate in fee simple in each parcel, shall not join in one complaint for more than one parcel unless their interests are alike in each and every parcel. The court may at any time order a complaint to be amended by striking out one or more of the parcels, or by a severance of the complaint.
Chapter 185: Section 32. Amendments Section 32. Amendments to the complaint, including joinder, substitution, or discontinuance as to parties, shall be allowed by the court at any time upon just and reasonable terms; but all amendments shall be in writing, signed and sworn to, like the original.
Chapter 185: Section 33. Plan of land and muniments of title; filing; withdrawal; further survey Section 33. The plaintiff shall file with the complaint a plan of the land, and all original muniments of title within his control. Such original muniments as affect land not included in the complaint may be withdrawn upon filing certified copies thereof. If a complaint is dismissed or discontinued, the plaintiff may, with the consent of the court, withdraw such original muniments of title. The court may, in any case before judgment, require a further survey to be made for the purpose of determining boundaries and may order durable bounds to be set, and referred to in the complaint, by amendment. The expense of survey and bounds shall be taxed in the costs of the case and may be apportioned among the parties as justice may require. If no persons appear to oppose the complaint, such expense shall be borne by the plaintiff.
Chapter 185: Section 34. Additional facts in complaint; additional papers Section 34. The court may by general rule require additional facts to be stated in the complaint and may require the filing of additional papers.
Chapter 185: Section 35. Agent for non-resident plaintiff Section 35. If the plaintiff is not a resident of the commonwealth, he shall file with his complaint a paper appointing an agent residing in the commonwealth, giving his name in full and post office address, and shall therein agree that the service of any legal process in proceedings under or growing out of the complaint shall be of the same legal effect if made on said agent as if made on the plaintiff within the commonwealth. If the agent dies, or removes from the commonwealth, the plaintiff shall forthwith make another appointment; and if he fails so to do, the court may dismiss the complaint.
Chapter 185: Section 36. Transactions dealing with land after filing of complaint; record of disposition of case Section 36. After the filing of a complaint and before registration, the land therein described may be dealt with, and instruments relating thereto shall be recorded in the same manner, as if no such complaint had been filed; but all instruments left for record which relate to such land shall be indexed in the usual manner in the registry indexes and in the index of complaints. As soon as a complaint is disposed of, the recorder shall make a memorandum stating the disposition of the case, and shall send the same to the register of deeds for the proper district or districts, who shall record and index it with the records of deeds and in the index of complaints. If a judgment of registration of title is entered the land included in the judgment shall, when the judgment is transcribed as provided in section forty-eight, become registered land, and thereafter no deeds or other instruments which relate solely to such land shall be recorded with the records of deeds, but shall be registered in the registration book and filed and indexed with the records and documents relating to registered land.
Chapter 185: Section 37. Reference to examiner to search records and investigate facts; report; notice of report to plaintiff Section 37. Immediately after the filing of a complaint, the court shall enter an order referring it to one of the examiners of title, who shall search the records and investigate all facts stated in the complaint or otherwise brought to his notice, and shall file in the case a report thereon, concluding with a certificate of his opinion upon the title. The recorder shall give notice to the plaintiff of the filing of such report.
Chapter 185: Section 38. Publication of notice of filing of complaint Section 38. Unless the plaintiff withdraws his petition within fourteen days of the notice of the filing of the examiner’s report from the recorder, the recorder shall cause notice of the filing of the complaint to be published in a newspaper published in the district where any part of the land lies. The notice shall be issued by order of the court, attested by the recorder, and shall be in form substantially as follows:COMMONWEALTH OF MASSACHUSETTSLand CourtTo (here insert the names of all persons known to have an adverse interest, and the adjoining owners and occupants so far as known), and to all whom it may concern:Whereas a complaint has been presented to said court by (name or names and address) to register and confirm his (or their) title in the following described land (insert description).
If you desire to make any objection or defense to said complaint you or your attorney must file a written appearance and an answer under oath, setting forth clearly and specifically your objections or defense to each part of said complaint, in the office of the recorder of said court in Boston, (designation of location) or in the office of the assistant recorder of said court at the registry of deeds at ___ in the county of ___ where a copy of the plan filed with said complaint is deposited, on or before the ___ day of ___ next. Unless an appearance is so filed by or for you, your default will be recorded, the said complaint will be taken as confessed and you will be forever barred from contesting said complaint or any judgment entered thereon.
Witness, ________, Esquire, judge of said court, this ___ day of ___ in the year nineteen hundred and ___.
Attest with the seal of said court ___.
Recorder.
Chapter 185: Section 39. Return day of notice; mailing of copies; posting of copies Section 39. The return day of said notice shall be not less than twenty nor more than sixty days after the date of issue. The court shall also, within seven days after publication of said notice in a newspaper, cause a copy thereof to be sent by the recorder by mailing a registered letter to every person named therein whose address is known. The court shall also cause a duly attested copy of the notice to be posted in a conspicuous place on each parcel of land included in the complaint, by a sheriff or deputy sheriff, fourteen days at least before the return day thereof, and his return shall be conclusive proof of such service. If the plaintiff requests to have the line of a public way determined, the court shall order notice to be given by the recorder, by mailing a registered letter to the mayor of the city or to one of the selectmen of the town or towns where the land lies, or, if the way is a highway, to one of the county commissioners of the county or counties where the land lies. If the land borders on a river, navigable stream or shore, or on an arm of the sea where a river or harbor line has been established, or on a great pond, or if it otherwise appears from the complaint or the proceedings that the commonwealth may have a claim adverse to that of the plaintiff, notice shall be given in the same manner to the attorney general. The court may also cause other or further notice of the complaint to be given. The court shall, so far as it considers it possible, require proof of actual notice to all adjoining owners and to all persons who appear to have any interest in or claim to the land included in the complaint. Notice to such persons by mail shall be by registered letter. The certificate of the recorder that he has served the notice as directed by the court, by publishing or mailing, shall be filed in the case before the return day, and shall be conclusive proof of such service.
Chapter 185: Section 4. Processes Section 4. Processes issuing from the court shall bear teste of the judge, shall be under the seal of the court and be signed by the recorder.
Chapter 185: Section 40. Appointment of guardian ad litem; compensation Section 40. Upon the return of the notice, and upon proof of service of all orders of notice issued, the court may appoint a disinterested person to act as guardian ad litem for minors, and for persons under disability, and for all persons not in being, unascertained, unknown or out of the commonwealth, who may have an interest. The compensation of the guardian shall be determined by the court and paid as it may direct.
Chapter 185: Section 41. Answer Section 41. Any person who claims an interest, whether named in the notice or not, may appear and file an answer on or before the return day, or within such further time as the court may allow. The answer shall state all objections to the complaint, shall set forth the interest claimed by the person who files it, and shall be signed and sworn to by him or by a person in his behalf.
Chapter 185: Section 42. General default; order; judgment confirming title Section 42. If no person appears and answers within the time allowed, the court may at once upon motion of the plaintiff, no reason to the contrary appearing, order a general default to be recorded and the complaint to be taken for confessed. By the description in the notice, “to all whom it may concern”, all the world are made parties defendant and shall be concluded by the default and order. After such default and order, the court may enter a judgment confirming the title of the plaintiff and ordering registration thereof. The court shall not be bound by the report of the examiner of title, but may require other or further proof.
Chapter 185: Section 43. Hearing of contested cases; default of persons not appearing; reference to examiner; report; compensation of examiner Section 43. If, in any case, an appearance is entered and answer filed, the case shall be set down for hearing on the motion of either party, but a default and order shall first be entered against all persons who do not appear and answer, in the manner provided in the preceding section. The court may refer the case or any part thereof to one of the examiners of title, as master, to hear the parties and their evidence, and make report thereof to the court. His report shall have the same effect as that of a master appointed by the superior court in equity, and he shall proceed according to the rules of said court applicable to masters, except as the same may be modified by the rules of the land court. The compensation of a master appointed under this section and of an examiner under section twenty-four shall be awarded by the court and shall be paid by the commonwealth, except that compensation may be awarded by the court in its discretion as a part of the taxable costs of the proceedings, in which case the compensation shall be paid as decreed by said court.
Chapter 185: Section 44. Dismissal; withdrawal Section 44. If the court finds that the plaintiff has not title proper for registration, a judgment shall be entered dismissing the complaint, and such judgment may be ordered to be without prejudice, in whole or in part, but unless so ordered it shall bind the parties, their privies and the land in respect of any issue of fact which has been tried and determined. The plaintiff may withdraw his complaint at any time before final judgment, upon terms fixed by the court. The court may require a plaintiff who moves to withdraw his complaint or to substitute some other person as plaintiff, to stipulate that he shall be bound by the result of any issue of fact which has been tried and determined, and such stipulation shall bind the parties, their privies and the land itself.
Chapter 185: Section 45. Judgment of confirmation and registration; opening of judgment; remedies of aggrieved persons Section 45. If the court, after hearing, finds that the plaintiff has title proper for registration, a judgment of confirmation and registration shall be entered, which shall bind the land and quiet the title thereto, subject only to the exceptions stated in the following section. It shall be conclusive upon and against all persons, including the commonwealth, whether mentioned by name in the complaint, notice or citation, or included in the general description “to all whom it may concern”. Such judgment shall not be opened by reason of the absence, infancy or other disability of any person affected thereby, nor by any proceeding at law or in equity for reversing judgments or decrees; subject, however, to the right of any person deprived of land, or of any estate or interest therein, by a judgment of registration obtained by fraud to file a complaint for review within one year after the entry of the judgment, provided no innocent purchaser for value has acquired an interest. If there is any such purchaser, the judgment of registration shall not be opened but shall remain in full force and effect forever, subject only to the right of appeal as provided by law from time to time. But any person aggrieved by such judgment in any case may pursue his remedy in tort against the plaintiff or against any other person for fraud in procuring the judgment.
Chapter 185: Section 46. Encumbrances affecting certificates of title Section 46. Every plaintiff receiving a certificate of title in pursuance of a judgment of registration, and every subsequent purchaser of registered land taking a certificate of title for value and in good faith, shall hold the same free from all encumbrances except those noted on the certificate, and any of the following encumbrances which may be existing:First, Liens, claims or rights arising or existing under the laws or constitution of the United States or the statutes of this commonwealth which are not by law required to appear of record in the registry of deeds in order to be valid against subsequent purchasers or encumbrances of record.
Second, Taxes, within three years after they have been committed to the collector.
Third, Any highway, town way, or any private way laid out under section twenty-one of chapter eighty-two, if the certificate of title does not state that the boundary of such way has been determined.
Fourth, Any lease for a term not exceeding seven years.
Fifth, Any liability to assessment for betterments or other statutory liability, except for taxes payable to the commonwealth, which attaches to land in the commonwealth as a lien; but if there are easements or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easements or rights shall remain so appurtenant notwithstanding such failure, and shall be held to pass with the land until cut off or extinguished by the registration of the servient estate, or in any other manner.
Sixth, Liens in favor of the United States for unpaid taxes arising or existing under the Internal Revenue Code of 1954 as amended from time to time and any other federal lien which may be filed in the commonwealth.
Seventh, Liens in favor of the commonwealth for unpaid taxes arising or existing under the laws of the commonwealth.
Chapter 185: Section 47. Contents of judgment of registration Section 47. Every judgment of registration shall bear date of the year, month, day, hour and minute of its entry and shall be signed by the recorder. If the owner is under disability it shall relate the nature thereof, and if a minor, shall state his age. It shall contain a description of the land as finally determined by the court, shall set forth the estate of the owner and also, in such manner as to show their relative priority, all particular estates, mortgages, easements, liens, attachments and other encumbrances, including rights of husband or wife, if any, to which the land or the owner’s estate is subject, and may contain any other matter properly to be determined in pursuance of this chapter. The judgment shall be stated in a form convenient for transcription upon the certificates of title hereinafter mentioned.
Chapter 185: Section 48. Transcription of judgment in district where land lies; owner’s duplicate certificate; land lying in more than one district Section 48. Immediately upon the entry of the judgement of registration, the recorder shall send a certified copy thereof, under the seal of the court, to the register of deeds for the district or districts where the land lies, and the register, as assistant recorder, shall transcribe the judgement in a book to be called the registration book, in which a leaf or leaves in consecutive order shall be devoted exclusively to each title, and note therein the day, hour and minute when said judgement is transcribed. The entry made by the assistant recorder in this book in each case shall be the original certificate of title, shall be signed by him and sealed with the seal of the court. All certificates of title shall be numbered consecutively, beginning with number one. A certified copy of the judgement of registration shall be filed and numbered by the assistant recorder, with a reference noted on it to the place of record of the original certificate of title. If, however, a complaint includes land lying in more than one district, the court shall cause the part lying in each district to be described separately by metes and bounds in the judgement or judgements of registration, the recorder shall send to the assistant recorder for each registry district a copy of the judgement containing a description of the land within that district, and the assistant recorder shall register the same; and thereafter, for all matters pertaining to registration, the portion in each district shall be treated as a separate parcel of land.
Chapter 185: Section 49. Original and transfer certificates Section 49. The certificate first registered in pursuance of a judgment of registration in regard to any parcel of land shall, in the registration book, be entitled “Original certificate of title, entered pursuant to judgment of the land court, dated at” (stating time and place of entry of judgment and the number of the case). The certificate shall take effect from the date of the transcription of the judgment. Subsequent certificates relating to the same land shall be in like form, but shall be entitled “Transfer from No. ___” (the number of the last previous certificate relating to the same land), and also the words “Originally registered” (date, volume and page of registration).
Chapter 185: Section 5. Repealed, 1978, 478, Sec. 84 Chapter 185: Section 50. Repealed, 1996, 481, Sec. 2 Chapter 185: Section 51. Subdivision; application for new certificates Section 51. An owner who subdivides a tract of registered land into lots shall file with the recorder a plan thereof, when applying for a new certificate or certificates, and the court, before issuing the same, shall cause the plan to be verified, and require that all boundaries, streets and passageways shall be distinctly and accurately delineated thereon.
Chapter 185: Section 52. Perpetuation of registration; withdrawal; notice of voluntary withdrawal Section 52. The obtaining of a judgment of registration and the entry of a certificate of title shall be regarded as an agreement running with the land and binding upon the plaintiff and his successors in title that the land shall be and forever remain registered land and subject to this chapter and all acts in amendment thereof, unless withdrawn under this section or under section 16 of chapter 183A, and except as provided in section 26 of this chapter.
If all of a parcel of land which is registered under this chapter is acquired by the commonwealth or any agency, department, board, commission, or authority of the commonwealth or any political subdivision thereof or any authority of any such political subdivision, such acquisition shall be a sufficient ground for withdrawal of the registered land from the provisions of this chapter and the land shall be so withdrawn upon the filing of a complaint with the court by the public entity which has acquired the registered land and its approval by the court.
All of the owners of the fee simple estate in all of a parcel of land that has been registered under this chapter may voluntarily withdraw the registered land from the provisions of this chapter by filing a notice of voluntary withdrawal, endorsed by a justice of the land court as provided in this section, in the registry district of the land court where the land lies. Such notice of voluntary withdrawal shall be noted on the memorandum of encumbrances for the certificate of title. Upon the filing of such notice, the land shall be deemed withdrawn from the provisions of this chapter and shall become unregistered land, and the owners shall hold title thereto at the time of such filing free of all liens and encumbrances, including adverse possession and prescriptive rights, except those set forth or referred to in section 46 and those noted on the certificate of title or filed for registration before the filing of the notice of voluntary withdrawal, as though a judgment of confirmation without registration had been recorded under section 56A.
As used in this section, “notice of voluntary withdrawal” shall mean an instrument in writing signed and acknowledged by all owners of the land to be voluntarily withdrawn, which contains the following information: names and addresses of all owners; the certificate of title number with the registration book and page numbers; the description of the land in the form contained in the certificate of title; and the street address of such land, if any, and which bears the endorsement of a justice of the land court approving the voluntary withdrawal as provided in this section. Upon filing with the land court of a complaint to withdraw land, the plaintiff shall deposit with the recorder a sum sufficient to cover costs of the proceeding. The court shall then appoint one of the examiners of title, who shall make a report to the court as to the identity of the current record owner and of all mortgagees and lessees with interests of record in the land. A justice of the land court shall approve the application and shall endorse the plaintiff’s notice of voluntary withdrawal if: (a) the registered land constitutes less than 50 per cent of the total area of a single parcel or of two or more contiguous parcels in common ownership; (b) the registered land consists of less than 10 per cent of the portion of the land area to which an original certificate of title pertains, the rest of the land area to which such certificate pertains having been conveyed since the original registration under this chapter; (c) the owners of the registered land have submitted the land to the provisions of chapter 183A or 183B or have created interests in the land to which chapter 183B is applicable pursuant to section 3 of chapter 760 of the acts of 1987; or (d) the court finds that the owners of the registered land have demonstrated other good cause for withdrawal under this section, including but not limited to, economic hardship by reason of the land being registered, unless, notice having been given to mortgagees and lessees of record, an outstanding objection has been filed by a mortgagee or lessee of record. Notwithstanding any such outstanding objection, the application may be approved, unless the court determines there is good cause for the objection. The justices of the land court shall establish rules and practices, including an appropriate filing fee for the application as are necessary to implement this section.
Chapter 185: Section 53. Prescription, adverse possession or right of way by necessity Section 53. No title to registered land, or easement or other right therein, in derogation of the title of the registered owner, shall be acquired by prescription or adverse possession. Nor shall a right of way by necessity be implied under a conveyance of registered land.
Chapter 185: Section 54. Evidentiary effect of original certificate or copies thereof Section 54. The original certificate in the registration book and any copy thereof duly certified under the signature of the recorder or an assistant recorder and the seal of the court shall be received as evidence in all courts of the commonwealth, and shall be conclusive as to all matters contained therein, except as otherwise provided in this chapter.
Chapter 185: Section 55. Contents of certificate of title Section 55. Every certificate of title shall set forth the names of all the persons whose estates make up the estate in fee simple in the whole land.
Chapter 185: Section 56. Recorder’s duties relating to indexes and records Section 56. The recorder, under the direction of the court, shall make and keep indexes of all complaints and of all judgments of registration, and shall also index and classify all papers and instruments filed in his office relating to complaints and to registered titles. The recorder shall also, under the direction of the court, cause forms of indexes and
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