Skip to Content

Session Law

2004

Jump to:

Chapter 323 AN ACT AUTHORIZING THE TOWN OF MARION TO DEVELOP AND MAINTAIN A SUBSIDIZED HOUSING PLAN FOR LOW AND MODERATE INCOME HOUSING.

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. There is hereby established in the town of Marion a subsidized housing plan for the development and maintenance of low and moderate income housing.

SECTION 2. For the purposes of this act, the term "property" shall mean property for which a covenant has been granted pursuant to this section. For the purposes of this act, the term "grantor" shall mean the person or persons who is the original grantor or grantors of the covenant pursuant to this section. The covenant shall be in a form prescribed by the town and, notwithstanding any general law to the contrary, shall be granted to the town in perpetuity by the owner of the property. The covenant shall incorporate sections 4 and 5 in their entirety.

For the time in which the grantor owns the property, the town shall fully exempt property taxes due on residential real estate for which a covenant has been granted to the town pursuant to this section; provided however, that in no event shall the town exempt property taxes due on property for which a covenant has been granted to the town pursuant to this section unless: (1) the covenant has been first recorded in the Plymouth county registry of deeds; (2) the grantor has submitted to the assessors a certification by the building inspector for the town that the property complies with the state sanitary code, and to the extent applicable, state and local building and fire safety codes; (3) the property is not otherwise subsidized low or moderate income housing, or built or developed, pursuant to sections 20 to 23, inclusive, of chapter 40B of the General Laws; (4) the grantor occupies the property as a principal residence and domicile; and (5) the household income of the occupants of the property, at the time the covenant is recorded, is at or below 80 per cent of the area median income adjusted for household size and the number of bedrooms in the housing unit as determined by the U.S. Department of Housing and Urban Development or successor agency. The property owner shall comply with all reasonable requests by the town to ensure compliance with this section. Compliance with the state sanitary code, or other codes, may be waived by vote of the board of selectmen for the town of Marion. The board of selectmen may grant the property owner all or part of the necessary funds to bring the property into compliance with all or part of the state sanitary code, and to the extent applicable, state and local building and fire safety codes. In the alternative, the board of selectmen may enter into an agreement with the property owner, which shall provide that the town will provide the property owner all or part of the necessary funds to bring the property into compliance with all or part of the state sanitary code, and to the extent applicable, state and local building and fire safety codes. The property owner who enters into such an agreement shall be responsible for reimbursing the town in an amount equal to the funds provided plus interest, which shall be at a rate determined by the parties.

SECTION 3. Any subsequent owner of the property for which a covenant has been recorded pursuant to section 2, including a child grantee pursuant to paragraph (a) of section 4, shall be entitled to an abatement. The abatement shall be equal to the difference in taxes otherwise due between (i) the maximum low or moderate income selling price as determined by the department of housing and community development, and (ii) the full and fair market value of the property without a restrictive covenant pursuant to said section 2. For the purposes of this act, the term "subsequent owner" shall mean an owner or owners of the property other than the grantor.

In no event, shall an abatement be granted pursuant to this section unless: (1) the property is not otherwise subsidized low or moderate income housing, or built or developed, pursuant to sections 20 to 23, inclusive, of chapter 40B of the General Laws; and (2) the owner of the property occupies the property as a principal residence and domicile. The property owner shall comply with all reasonable requests by the town to ensure compliance with this section.

SECTION 4. (A) A grantor may convey property for which a covenant has been recorded pursuant to section 2 to a child or children of the grantor, with or without consideration.

(B) Except for a conveyance to a child grantee pursuant to paragraph (A), no property, or any portion thereof, subject to a covenant under this act shall be conveyed except pursuant to the following provisions: the property owner shall notify the board of selectmen of his intent to convey the property and shall submit to the board of selectmen a certification by the building inspector for the town that the property complies with the state sanitary code, and to the extent applicable, state and local building and fire safety codes. The certification shall be dated no earlier than 4 months prior to submission. Compliance, for purposes of this act, with the state sanitary code, or other codes, may be waived by vote of the board of selectmen for the town of Marion. The board of selectmen may grant the property owner all or part of the necessary funds to bring the property into compliance with all or part of the state sanitary code, and to the extent applicable, state and local building and fire safety codes. In the alternative, the board of selectmen may enter into an agreement with the property owner, which shall provide that the town will provide the property owner all or part of the necessary funds to bring the property into compliance with all or part of the state sanitary code, and to the extent applicable, state and local building and fire safety codes. The property owner who enters into such an agreement shall be responsible for reimbursing the town in an amount equal to the funds provided plus interest, which shall be at a rate determined by the parties. For a period of 120 days subsequent to the notification of intent to convey, the town shall have a first refusal option to purchase the property for the maximum affordable price for that property as would be determined by the department of housing and community development for households at or below 80 per cent of the area median income. No conveyance of the property shall be consummated unless and until either the said option period shall have expired or the grantor shall have been notified in writing by the board of selectmen that said option will not be exercised. Said option may be exercised only by certified mail at such address as may be specified in the owner's notice of intention and by recording notice of the exercise of said option in the registry of deeds within said option period. Notices of intention shall be deemed to have been duly mailed to the board of selectmen if addressed to them or in care of the town clerk.

Each such notice of intent, notice of exercise of the option, and notice that the option will not be exercised, shall contain the name of the record owner of the property, the record owner's mailing address, and a description of the premises adequate for identification thereof.

If the town does not exercise its option to purchase the property, there shall be a lottery conducted by the town clerk. The lottery shall consist of 2 eligibility pools:-

(i) town residents, and town employees regardless of residence with a minimum 2 years consecutive employment with the town immediately prior to the sale of the property; and (ii) all other persons, provided that no person shall be eligible for inclusion in the lottery pools whose income, along with the income of other household members, in the last full year exceeded 80 per cent of the area median income adjusted for household size and number of bedrooms in the housing unit as determined by the United States Department of Housing and Urban Development or successor agency. A sequential rotation shall be maintained by the town to ensure that lottery selections from the local preference pool will never exceed 70 per cent of the combined lottery selections. The property shall not be sold for a price in excess of the maximum affordable price for that property as would be determined by the department of housing and community development for households at or below 80 per cent of the area median income. Except for good cause, the seller and the selected buyer must enter into a written agreement for the purchase and sale of the property, subject to standard rights of inspection and mortgage contingency provisions, within 10 days of his selection. If the buyer fails to do so, the seller may request a new selection from the lottery.

(C) Notwithstanding the provisions of paragraphs (A) and (B), or any conditions of the covenant pursuant to section 2, the grant of a mortgage or the imposition of a betterment, lien, attachment, or levy upon execution, or other form of statutory security shall not be considered a conveyance in violation of the covenant pursuant to section 2, provided that foreclosure upon title pursuant to any such instrument, or a forced sale pursuant to such instrument or other proceeding, shall be considered a conveyance subject to the provisions of this act, and shall be subject to the procedures set forth in paragraph (B).

SECTION 5. (A) In the event that the owner and the town reach an agreement pursuant to section 2 or subsection (B) of section 4, which provides that the town shall provide all or part of the necessary funds to the owner to bring the property into compliance with the state sanitary code, and to the extent applicable, state and local building and fire safety codes the owner who enters into such an agreement shall reimburse the town in the amount equal to the funds provided plus interest, which shall be at a rate determined by the parties. A notice of such agreement shall be recorded as a betterment and constitute a lien, subject to the provisions of chapter 80 of the General Laws relative to the apportionment, division, reassessment and collection of assessment, abatement and collections of assessments, and to interest; provided, however, that for purposes of this section, such lien shall take effect by operation of law on the day immediately following the due date of such assessment or apportioned part of such assessment and such assessment shall bear interest at rate agreed to by town and the owner. In addition to remedies available under said chapter 80, the owner shall be personally liable for the repayment of the amount due the town under this section; provided, however, that upon assumption of such personal obligation by a purchaser or other transferee of all of the original owners interest in the property at the time of conveyance and the recording of such assumption, the owner shall be relieved of such personal liability.

Any costs incurred under the provisions of this section may be funded by an appropriation or issuance of debt, provided that any debt incurred shall be subject to the provisions of chapter 44 of the General Laws and shall not exceed 20 years.

Any appropriation or borrowing by the town for purposes contained within this section shall not be included for the purpose of computation of the levy or borrowing limits otherwise imposed upon such town by the General Laws.

An agreement between an owner and the town pursuant to this section shall not be considered a breach of limitation or prohibition contained in a note, mortgage or contract on the transfer of an interest in property.

(B) If a conveyance of property for which a covenant has been recorded pursuant to section 2 is not in compliance with the terms of this act, there shall be a penalty imposed. The penalty shall be the greater of either: (i) 150 per cent of the amount by which the total sale price exceeds the maximum affordable price for that property as would be determined by the department of housing and community development for households at or below 80 per cent of the area median income, or (ii) 150 per cent of the total amount of all taxes on the property which were exempted or abated, plus interest from the date or dates those taxes would otherwise have been due. A covenant which has been recorded pursuant to section 2 shall constitute a lien on the property for the purpose of securing the payment of the penalty imposed pursuant to this section. This lien shall take priority over all other liens, voluntary or involuntary, which were perfected after the covenant was first recorded. All penalties and interest imposed by this section shall also constitute a personal debt of the person who violated the provisions of this act, and may be recovered in an action of contract or in any other appropriate action, suit or proceeding brought by the town.

(C) A breach or violation of the covenant shall not affect the validity or enforceability of any of the covenant's provisions by the town.

SECTION 6. Property on which the taxes due are exempted or abated pursuant to this act shall be included in the department of housing and community development's subsidized housing inventory.

House of Representatives, July 21, 2004.

This Bill having been returned by His Excellency the Governor with his objections thereto in writing (see House 4994) has been passed by the House of Representatives, notwithstanding said objections, two-thirds of the House (134 yeas to 22 nays) having agreed to pass the same.

Sent to the Senate for its action.


Thomas M. Finneran, Speaker.
Steven T. James, Clerk.

Senate, July 22, 2004.

Passed by the Senate, notwithstanding the objections of His Excellency the Governor, two-thirds of the members present (33 yeas to 5 nays) having approved the same.

Robert E. Travaglini, President.
William F. Welch, Clerk.

Office of the Secretary August 24, 2004.

Error