Condo Media - May 2022 - 32

IMPROVING PROCEDURES
The bill provides the necessary
framework for the property owners to
form an owners' association, or just a
maintenance process without an association
where none currently exists,
including requirements with respect
to establishing an association board,
as the case may be, and, also establishes
requirements to be adhered to
with respect to the raising of funds as
reasonably related to the cost of maintenance
and repairs of the common
amenities. The association may also
make assessments for maintenance
and repair costs and establish liens
against the titles of those who do not
pay their assessed share.
Among the key elements of S. 2303
are the following:
(a)
the bill includes private utility
lines within the scope of the
common amenities covered by
these provisions;
(b)
a clearly defi ned process for calling
a meeting of property owners for
the purpose of establishing an owners'
association and/or a maintenance
process has been included in the current
bill, and a certifi cation that the notice
requirements of the statute have been
complied with is required to be
recorded;
(c)
provisions have been included to
require certain basic information
regarding an owners' association or a
separate maintenance process created
pursuant to the statute to be recorded
at the registry of deeds and to allow
persons to rely in good faith on the
information identifying the members
of the common association board and
the association's address that appears
at the registry of deeds;
(d)
as noted above, the ability of an
owners' association to lien the
property of owners that fail to pay
their allocable share of maintenance
and repair costs is provided for in the
current bill similar to the ability of a
condominium association to establish
a lien for unpaid condominium
charges; and
32 CONDOMEDIA May 2022
(e)
provisions are included in the bill
pursuant to which a statement
from the owners' association can be
obtained and recorded for the purpose
of establishing that a property owner
has paid its share of maintenance
and repair costs as of the date of
the statement, again drawing upon
analogous statutory provisions
applicable in the condominium context.
The bill revises M.G.L. c. 254 to
establish a framework for an association's
enforcement of a lien for unpaid
maintenance and repair costs. This
would parallel the framework that applies
to unpaid condominium charges or
time-share expenses, also governed by
Chapter 254.
PROTECTIONS FOR
INDIVIDUAL OWNERS
In new Section 12A of M.G.L. c. 84, the
bill has introduced the concept of an
owner being able to disclaim an appurtenant
right that is created subsequent
to the date the owner acquired the title
to his or her property. This is intended
to address the concern that expenses for
common amenities may be thrust upon
owners. The thinking is that once an
owner takes a title to a property with the
appurtenant right in place, that owner
takes with knowledge that he or she may
have to pay his or her share of costs associated
with that appurtenant right. Section
12A gives an owner the ability not
to accept a new appurtenant right that
will be of minimum benefi t to the owner
and thereby to avoid the costs associated
with that appurtenant right. Further,
Section 13 provides that any common
association or maintenance process (or
amendment thereto) that is established
through a meeting called under Section
13 must be fair and equitable towards
all owners. By including the " fair and
equitable " language, an owner who has
been treated badly by his or her fellow
owners when a maintenance process or
common association is set up has support
under this language to take action
to protect himself or herself from the
inequitable treatment.
The bill seeks to be fair to property
owners both individually and collectively,
recognizes that those who use the roads
and amenities are the logical parties to
pay for their upkeep, and further recognizes
that, with proper management and
through the use of transparent owners'
associations, dangerous and crumbling
private infrastructure items can be
repaired and future issues arising out
of the failure to maintain such private
infrastructure can be minimized.
PRIVATE WAYS AND
LENDER FINANCING
Another very practical reason for the
legislation relates to fi nancing of residential
mortgages in the secondary market.
Fannie Mae regulations require an
enforceable maintenance agreement for
any property that abuts a private way.
If there is no homeowners' association
(HOA), either the lender often has to get
some type of waiver from the investor
or the loan must be fi nanced through a
community bank that portfolios the loan,
perhaps on less favorable terms.
Currently, the bill has been referred
to the Joint Committee on Transportation
who has recommended the bill for
further study. Thus, is it unknown at
this time if this bill will gain the support
necessary to get it out of study and push
it through to passage in both chambers
on the Hill during the current legislative
session. It is expected that if the bill is not
successful in this current legislative session,
that the bill will be refi led and hopefully
gain the necessary support so that
one day the existing provisions of M.G.L.
c. 84, § 12, 13, and 14 will be updated to
provide the much needed assistance to
property owners faced with assuring that
private ways and other common amenities
are maintained, and assuring, also,
that all owners benefi tting from the use
of such ways and amenities will pay their
fair share.
■ DOUGLAS A. TROYER, ESQ.
IS A PRINCIPAL WITH THE LAW FROM
MORIARTY TROYER & MALLOY LLC.
Condo Media - May 2022

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