SENATE DOCKET, NO. 2556 FILED ON: 4/27/2010
SENATE . . . . . . . . . . . . . . No. 2402
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The Commonwealth of Massachusetts
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In the Year Two Thousand Ten
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An Act relative to the disposition of museum property.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
SECTION 1. The General Laws are hereby amended by inserting, after chapter 200A, the following chapter:-
CHAPTER 200B. Disposition of Museum Property
Section 1. As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-
“Claimant”, a person, other than the lender, who claims to be legally entitled to, or who establishes legal entitlement to, property held by a museum.
“Lender”, a person who loans property to a museum and whose name appears in the museum’s records as the person legally entitled to the property held by the museum.
“Loan”, a deposit of property with a museum for a specified period of time, that is not accompanied by a transfer of title to the property or other evidence of donative intent; but does not include a consignment of property for sale.
“Museum,” an institution or entity located in the commonwealth that:
(i) is operated by a nonprofit corporation, trust, association, public agency or educational institution;
(ii) is operated primarily for educational, scientific, historic preservation, cultural or aesthetic purposes; and
(iii) owns, borrows, cares for, exhibits, studies, archives or catalogues property.
The word, “museum” shall include, but shall not be limited to, historical societies, historic sites, landmarks, parks, archives, monuments, botanical gardens, arboreta, zoos, nature centers, planetaria, aquaria, libraries, technology centers and art, history, science and natural history museums.
“Person”, an individual, association, partnership, corporation, trust, estate or other entity having a legal interest in property in the custody of a museum.
“Property”, tangible objects, animate or inanimate, in the custody of a museum.
“Undocumented property”, property:
(i) that is held by a museum;
(ii) that is assumed to be a gift to the museum; and
(iii) whose ownership cannot be determined by reference to the museum’s records.
Section 2. (a) A notice to a lender or claimant under this chapter shall contain:
(1) the lender’s or claimant’s name, if known;
(2) the lender’s or claimant’s address, if known;
(3) a description of the property on loan to the museum;
(4) the date of the loan, if known, or the approximate date the property came into the custody of the museum;
(5) the name of the museum; and
(6) the name, address and telephone number of the appropriate museum official or office to be contacted regarding the property.
(b) A notice mailed to a lender or claimant under this chapter shall be sent by certified mail, return receipt requested, to the lender’s or claimant’s address. Notice shall be deemed to have been provided if the museum receives, within 60 days of mailing the notice to the lender or claimant a return receipt indicating a completed delivery to the lender’s or claimant’s address. The date of a notice provided under this subsection shall be the date of delivery to the lender’s or claimant’s address, as identified in the return receipt.
(c) If notice to a lender or claimant is not given in accordance with subsection (b), or if, after a diligent search of its records, a museum does not know or cannot determine the lender’s or claimant’s identity or address, notice may be given by publication, in which case notice shall be published:
(1) at least once per week for 3 successive weeks in a newspaper of general circulation in the county or municipality in which the museum is located; and
(2) if the museum has in its records the lender’s or claimant’s address, at least once per week for 3 successive weeks in a newspaper of general circulation in the county or municipality in which the lender or claimant is located.
For purposes of this chapter, the date of notice given under this subsection shall be the date of the last published notice under either clause (1) or (2), whichever occurs later.
Section 3. (a) Unless a written loan agreement provides otherwise, a museum may apply conservation measures to, or dispose of, undocumented property or property on loan to the museum without the lender’s or claimant’s permission or notice to the lender or claimant if:
(1) immediate action is required to protect the undocumented property or property on loan; or
(2) the property on loan has become a hazard to the health and safety of the public or to the museum’s staff, and if at least 1 of the following applies:
(i) the property poses an immediate risk of harm to the museum’s staff or collection or to the general public, in which case the museum may dispose of the property without delay and shall notify the lender or claimant of the action taken within 30 days;
(ii) the museum is unable to reach the lender or claimant at the lender’s or claimant’s address or phone number and is required to take action within 30 days; or
(iii) the museum contacts the lender or claimant and the lender or claimant does not agree to the protective measures the museum recommends and does not, or is unable to, terminate the loan and collect the property within the time the museum determines the action is necessary.
(b) Unless a written loan agreement provides otherwise, a museum that applies conservation measures to or disposes of loaned property in accordance with subsection (a) shall:
(1) acquire and may enforce a lien on the loaned property in the amount of the costs incurred by the museum;
(2) not be liable to the lender or claimant for damage to, or loss of, the loaned property so long as the museum had a reasonable belief at the time the action was taken that the action was necessary; and
(3) if the museum applied conservation measures, not be liable to the lender or claimant for damage to, or loss of, the loaned property so long as the museum exercised reasonable care in choosing and applying such conservation measures.
Section 4. (a) Unless a written loan agreement provides otherwise, a museum may give notice of the museum’s intent to terminate a loan of property at any time if:
(1) the property was loaned to the museum for an indefinite term; or
(2) the property was loaned to the museum for a specified term and the term has expired.
(b) A mailed notice of intent to terminate a loan shall comply with subsection (b) of section 2, and shall include the following statement: “The records of (name of museum) indicate that you have property on loan to it. The museum hereby terminates the loan. If you desire to claim the property, you must contact the museum, establish your ownership of the property, and make arrangements to collect the property. If you fail to do so within 1 year after the date on which this notice was delivered, you will be considered to have donated the property to the museum and the museum will become the owner of the property.”
(c) If a lender or claimant does not respond to a notice of intent to terminate a loan under this chapter and does not collect the property within 1 year from the date of the notice the museum shall acquire title to the property and may sell, dispose of or retain the property.
Section 5. Property in the possession of a museum for which the museum does not know, and has no reasonable means of determining, the identity of the lender or claimant shall become the property of the museum if no person has claimed the property within 7 years after the museum can document the museum’s possession of the property. The museum shall become the owner of the property free from all claims on the day after the 7-year period ends. This section shall not apply to stolen or confiscated property.
Section 6. (a) Unless a written loan agreement exists between the parties, no action for damages shall be brought against a museum or the museum’s employees, agents, officers or trustees because of injury, damage to or loss of property loaned to the museum more than 2 years after the date the museum provided notice to the lender or claimant of the damage or loss.
(b) No action shall be brought against a museum or the museum’s employees, agents, officers or trustees to recover loaned or undocumented property more than 2 years after the date the museum provides notice to the lender or claimant of the museum’s intent to terminate a loan or the museum’s assertion of title to undocumented property.
(c) No action shall be brought against a museum or the museum’s employees, agents, officers or trustees to recover loaned property more than 2 years after the expiration date of the most recent written contract between the lender or claimant and the museum.
(d) A lender or claimant shall be deemed to have donated loaned property to a museum if the lender or claimant fails to contact the museum and establish the lender’s or claimant’s claim to the property after receiving notice of the museum’s intent to claim title to the property or dispose of the property or fails to file an action to recover the loaned property within the periods specified in subsections (b) and (c).
(e) A person who purchases property from a museum shall acquire title to the property if, prior to the person’s purchase, the museum acquired title to the property under this chapter.
(f) Notwithstanding subsections (d) and (e), a lender or claimant who has not received notice of intent to terminate a loan or notice of the museum’s assertion of title to undocumented property and who proves that the museum received satisfactory notice of interest in the property under subsection (b) of section 7, may recover the property or, if the property has been disposed of, the reasonable value of the property at the time the museum disposed of the property.
(g) If a person claims a competing interest with a second person in property loaned to a museum, the burden shall be on the person claiming the competing interest to prove such person’s interest in the property. A museum shall not be liable for the return of property to a claimant who has produced reasonable proof of ownership if, at the time the museum returned the property, the claimant’s claim was uncontested.
Section 7. (a) (1) A museum accepting a loan of property shall inform the lender, in writing, of the provisions of this chapter at the time the loan is made. A copy of this chapter or a citation to this chapter within the loan agreement shall satisfy the requirements of this subsection.
(2) A museum shall notify a lender or claimant of the museum’s change of address or dissolution.
(3) A museum shall retain all written records regarding property acquired under this chapter for at least 10 years from the date that the museum acquired title to the property or until the dissolution of the museum, whichever occurs first.
(b)(1) A lender, a lender’s heir or legal agent, or a claimant shall notify the museum promptly, in writing, of a change in ownership of loaned property or if there is a change in the name or address of the lender or claimant.
(2) A lender or claimant may file with a museum a written notice of interest in the property held by the museum. A notice of interest in the property shall:
(i) contain an adequate description of the property to enable the museum to identify the property;
(ii) be accompanied by documentation sufficient to establish the lender or claimant as the owner of the property; and
(iii) be signed under penalty of perjury by the lender or claimant, or by a person authorized to act on behalf of the lender or claimant.
Section 8. This chapter shall not be construed to abrogate the rights and obligations of a lender, claimant or museum identified in a written agreement.
This chapter shall not preclude a museum from using any other statutory or judicial method of establishing or perfecting title to property in the museum’s custody.
SECTION 2. A museum holding property on loan as of the effective date of this act shall be subject to chapter 200B of the General Laws.