HOUSE DOCKET, NO. 3945        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2425

The Commonwealth of Massachusetts

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PRESENTED BY:

Mike Connolly

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act addressing international real estate speculation.

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PETITION OF:

HOUSE DOCKET, NO. 3945        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2425

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act addressing international real estate speculation.

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. For purposes of this act, the following words and phrases shall have the following meanings:-

“Alien”, any person not a citizen or national of the United States.

"Alien purchaser", the transferee, grantee or recipient of any real property interest who is an alien.

"Purchase price", all consideration paid or transferred by or on behalf of an alien purchaser to a seller or his or her nominee, or for his or her benefit, for the transfer of any real property interest, and shall include, but not be limited to, all cash or its equivalent so paid or transferred; all cash or other property paid or transferred by or on behalf of the alien purchaser to discharge or reduce any obligation of the seller; the principal amount of all notes or their equivalent, or other deferred payments, given or promised to be given by or on behalf of the alien purchaser to the seller or his nominee; the outstanding balance of all obligations of the seller which are assumed by the alien purchaser or to which the real property interest transferred remains subject after the transfer, determined at the time of transfer, but excluding real estate taxes and other municipal liens or assessments which are not overdue at the time of transfer; the fair market value, at the time of transfer, of any other consideration or thing of value paid or transferred by or on behalf of the alien purchaser, including, but not limited to, any property, goods or services paid, transferred or rendered in exchange for such real property interest.

"Real property interest", any present or future legal or equitable interest in or to real property, and any beneficial interest therein, including the interest of any beneficiary in a trust which holds any legal or equitable interest in real property, the interest of a partner or member in a partnership or limited liability company, the interest of a stockholder in a corporation, the interest of a holder of an option to purchase real property, the interest of a buyer or seller under a contract for purchase and sale of real property, and the transferable development rights created under chapter 183A of the General Laws; but shall not include any interest which is limited to any of the following: the dominant estate in any easement or right of way; the right to enforce any restriction; any estate at will or at sufferance; any estate for years having a term of less than 30 years; any reversionary right, condition, or right of entry for condition broken; and the interest of a mortgagee or other secured party in any mortgage or security agreement.

"Seller", the transferor, grantor or immediate former owner of any real property interest.

"Time of transfer", the time at which any real property interest transfer is legally effective as between the parties thereto, and, in any event, with respect to a transfer evidenced by an instrument recorded with the appropriate registry of deeds or filed with the assistant recorder of the appropriate registry district, not later than the time of such recording or filing.

SECTION 2. (a) There is hereby imposed a fee equal to 15 per cent of the purchase price upon the transfer of any real property interest to an alien purchaser in any real property situated in a city or town that accepts the provisions of this act. Said fee shall be the liability of the alien purchaser of such real property interest, and any agreement between the alien purchaser and the seller or any other person with reference to the allocation of the responsibility for bearing said fee shall not affect such liability of the alien purchaser. The fee shall be paid to the city or town, or its designee, and shall be accompanied by a copy of the deed or other instrument evidencing such transfer, if any, and an affidavit signed under oath or under the pains and penalties of perjury by the alien purchaser or his or her legal representative and the seller or his or her legal representative, attesting to the true and complete purchase price and the basis, if any, upon which the transfer is claimed to be exempt in whole or in part from the fee imposed hereby. The city or town, or its designee, shall promptly thereafter execute and issue a certificate indicating that the appropriate fee has been paid or that the transfer is exempt from the fee. The register of deeds for the land in which the property is located, shall not record or register, or receive or accept for recording or registration, any deed, except a mortgage deed, to which has not been affixed such a certificate executed by the city or town or its designee. Failure to comply with this requirement shall not affect the validity of any instrument.

(b) The city or town shall deposit all fees received hereunder with the city or town treasurer. The treasurer shall deposit such fees into an affordable housing trust fund of the city or town, established pursuant to section 55C of chapter 44 of the General Laws or any special act creating such affordable housing trust fund. The fee imposed hereunder shall be due simultaneously with the time of transfer of the transfer upon which it is imposed. Notwithstanding the foregoing, whenever there is a conveyance of real property interests and a conveyance of personalty related thereto at or about the same time, the allocations of payments between real estate and personalty agreed to by the alien purchaser and seller shall not determine the amount of the fee due pursuant to this section; instead, the city or town may require payment of the fee referred to in real property interests so conveyed as determined by the city or town.

SECTION 3. At any time within 7 days following the issuance of the certificate of payment of the fee imposed by this act, the alien purchaser or his or her legal representative may return said certificate to the city or town, or its designee for cancellation, together with an affidavit signed under oath or under the pains and penalties of perjury that the transfer, with respect to which such certificate was issued, has not been consummated, and thereupon the fee paid with respect to such transfer shall be forthwith returned to the alien purchaser or his or her legal representative.

SECTION 4. (a)  A transfer of real property interests shall be exempt from the fee established by this act if the real property is used as the principal place of residence by the alien purchaser.

(b) Except as otherwise provided, the alien purchaser shall have the burden of proof that any transfer is exempt under this section and any otherwise exempt transfer shall not be exempt in the event that such transfer, by itself or as part of a series of transfers, was made for the primary purpose of evading the fee imposed by this act.

SECTION 5. (a) An alien purchaser who fails to pay all or any portion of the fee established by this act on or before the time when the same is due shall be liable for the following additional payments in addition to said fee: (a) the alien purchaser shall pay interest on the unpaid amount of the fee to be calculated from the time of transfer at a rate equal to 14 per cent per annum; and (b) any person who, without fraud or willful intent to defeat or evade a fee imposed by this act, fails to pay all or a portion of the fee within 30 days after the time of transfer, shall pay a penalty equal to 5 per cent of the outstanding fee as determined by the city or town for each month or portion thereof thereafter that the fee is not paid in full; provided, however, that in no event shall the amount of any penalty imposed hereunder exceed 25 per cent of the unpaid fee due at the time of transfer. Whenever the city or town determines that all or a portion of a fee due under this act was unpaid due to fraud with intent to defeat or evade the fee imposed by this act, a penalty equal to the amount of said fee as determined by the city or town shall be paid by the alien purchaser in addition to said fee.

(b) All fees, penalties and interest required to be paid pursuant to this act shall constitute a personal debt of the alien purchaser and may be recovered in an action of contract or in any other appropriate action, suit or proceeding brought by the city or town; said action, suit or proceeding shall be subject to the provisions of chapter 260 of the General Laws.

(c) If any alien purchaser liable to pay the fee established by this act neglects or refuses to pay the same, the amount, including any interest and penalty thereon, shall be a lien in favor of the city or town upon all property and rights to property, whether real or personal, belonging to such alien purchaser.

(d) In any case where there has been a refusal or neglect to pay any fee, interest or penalties imposed by this act, whether or not levy has been made, the city or town, in addition to other modes of relief, may direct a civil action to be filed in a district or superior court of the commonwealth to enforce the lien of the city or town under this act with respect to such liability or to subject any property of whatever nature, of the delinquent, or in which he or she has any right, title or interest, to the payment of such liability.

SECTION 6. Any city or town that has accepted section 55C of chapter 44 of the General Laws or has provided for an affordable housing trust fund through a special law may accept the provisions of this act pursuant to the procedure set forth in section 4 of chapter 4 of the General Laws.