Local protections for tenants facing condo conversion
The state condo law allows towns and cities to adopt, by a 2/3rd vote of their local legislative bodies, local ordinances or bylaws regulating condominium conversion that are stronger than, or which otherwise differ from, the statewide law.22 To get a copy of your local ordinance or bylaw, contact your city or town hall. What follows are brief descriptions of each of the local condo ordinances in Massachusetts. (While Cambridge does not have a local condo ordinance, it is discussed here given its special status as a formerly rent controlled community that did not adopt a post-rent-control condo ordinance.)
Endnotes
22 . Chapter 527 of the Acts of 1983, Section 2 (approved November 30, 1983). Even if local legislation is adopted, certain of the statewide baseline protections cannot be altered. Thus, a city or town cannot extend protections to properties not covered by the statewide law, and additional protections for certain classes of properties—housing accommodations converted from non-housing to housing uses after November 30, 1983, or which were constructed or substantially rehabilitated pursuant to any federal mortgage insurance program, without any interest subsidy or tenant subsidy attached thereto, or financed through the Massachusetts Housing Finance Agency, with an interest subsidy attached thereto—are prohibited. Chapter 527 of the Acts of 1983, Section 2 (approved November 30, 1983)
23 . See Chapter 35, Article 3 of the General Bylaws of Abington. The Abington bylaw extends to buildings with three or more units; coverage of 3-unit buildings may exceed the enabling authority granted by the state condo law. Chapter 35, Article 4 of the General Bylaws of Abington.
24 . See Chapter 128 of the Acts of 1981 (approved May 8, 1981), as amended by Chapter 548 of the Acts of 1987 (approved December 8, 1987).
25 . Authorities on Massachusetts condominium laws have come to the same conclusion. See Brown & Keenan, Massachusetts Condominium Law, §9.04-H (2nd ed. 1996) (Somerville and Acton condo conversion enabling laws probably survived abolition of rent control); see also endnote 9.
26 . Adopted at Amherst Town Meeting on March 29, 1984, as Article 1. Amherst, General Bylaws, Art. IV, Condominium and Cooperative Conversion, §§1-7. Amherst’s bylaw applies to buildings with two or more rental units. As with Abington’s bylaw, there is a question of whether extension of the bylaw to 2- and 3-family buildings would exceed the enabling authority granted by the state condo law. There is a provision in the Amherst bylaw that says it shall not apply to any property exempted by the state condo law. Amherst, General Bylaws, Art. IV, Condominium and Cooperative Conversion, §4(d).
27 . See Chapter 797 of the Acts of 1969 (approved August 24, 1969); Chapter 863 of the Acts of 1970.
28 . In 1985, Boston attempted to establish a removal permit system. The Supreme Judicial Court found that this system was not authorized by the city's rent control enabling law as it would provide protections which were not related to tenant displacement. See Greater Boston Real Estate Board v. City of Boston ("GBREB I"), 397 Mass. 870 (1986). Boston subsequently obtained additional home rule authority allowing it to regulate the conversion of apartments to condominiums. See Chapter 45 of the Acts of 1987 (approved May 6, 1987).
29 . G.L. c. 40P, often referred to as "Question 9," which was the number of the ballot initiative in 1994; see also Ash v. Attorney General, 418 Mass. 344 (1994) (finding that abolition of rent control in more than one community was a subject that could be put to statewide initiative); Massachusetts v. Tobias, 419 Mass. 665 (1995) (refusing to invalidate referendum results despite balloting problems).
30 . Chapter 282 of the Acts of 1994 (approved January 4, 1995).
31 . Both G.L. c. 40P and Chapter 282 of the Acts of 1994 (approved January 4, 1995) provided that condominium conversion protections authorized by Chapter 527 of the Acts of 1983 (approved November 30, 1983) were not barred by their general prohibitions on rent control and other tenant protections, so long as they were not part of a rent control scheme (i.e., laws that required below-market rents). Similarly, the Boston Housing Court found that Boston might be able to provide protections under Chapter 527 of the Acts of 1983 (approved November 30, 1983), as rent control protections ended. See Greater Boston Real Estate Board v. Boston Rent Equity Board, Boston Housing Court, 95-CV-00475 (Daher, C.J., June 26, 1995). “Moreover, the City and the Rent Board retain their authority to continue to regulate condominium conversions. The Rent Board derives such authority from St. 1983, c. 527, which statute expressly is excluded from the definition of ‘rent control’ in [c. 282]… . the City derived its authority, should it become necessary, from that Act as well as from the City’s original enabling statute. The provisions of [c. 282] that limit the powers of cities and towns to impose or enforce ‘rent control’ to ‘covered units’ and for prescribed periods of time do not apply to condominium conversions authorized under c. 527.…”
32 . In Greater Boston Real Estate Board v. City of Boston, Boston Housing Court, 96-CV-0087 (Daher, C.J., Feb. 1, 1996), the Housing Court indicated that an ordinance adopted by the city in late 1995 (Chapter 9 of the Ordinances of 1995 of the City of Boston) might be invalidated on vagueness grounds. The City then withdrew that ordinance and adopted another in the spring of 1996 (Chapter 3 of the Ordinances of 1996 of the City of Boston). This ordinance was invalidated by the Housing Court (see Greater Boston Real Estate Board v. City of Boston, Boston Housing Court, 96-CV-00752 (Daher, C.J., Nov., 22, 1996)), and subsequently by the Supreme Judicial Court, because it extended protections to tenants who had moved into condominium units after they had been converted. This was found to be beyond the authority granted by Chapter 527 of the Acts of 1983 (approved November 30, 1983). The SJC found that the remaining provisions of the ordinance could not be severed. See Greater Boston Real Estate Board v. City of Boston ("GBREB II"), 428 Mass. 797 (1999).
33 . See Chapter 8 of the Ordinances of 1999 of the City of Boston, as extended and revised by Chapter 12 of the Ordinances of 2004, Chapter 9 of the Ordinances of 2009, and Chapter 16 of the Ordinances of 2014 (current version at Municipal Code c. X, §10-2.10 (2006).
34 . If an owner converted the property between the end of rent control and November 1999 and gave proper notice to the tenants under the statewide law, the notice period might be limited to the statewide period, but only if the owner filed papers saying this with Boston's Rental Housing Resource Center by January, 2000. See Municipal Code, c. X, § 10-2.13.B (1999).
35 . Between late 1999 and 2004, relocation benefits were $1,500 for all tenants, and $2,000 for elderly, disabled, or low- and moderate-income tenants. These relocation benefits were enhanced as part of the 2004 and 2014 amendments to Boston’s condo law.
36 . In Perry v. Boston Rent Equity Board, 404 Mass. 780 (1989), 404 Mass. 780 (1989), the Supreme Judicial Court recognized that a notice of condo conversion might only be issued to permit conveyancing of individual units without any intent to displace the tenants. However, the drafters of Boston’s condo ordinance recognized that existing tenants should get the right of first refusal at the time of first sale of the unit, even if there was no intent to displace the tenant then.
37 The 2014 amendment to Boston’s condo ordinance changed the designation from the Rental Housing Resource Center to the Rental Housing Center. The Rental Housing Center is based at the City’s Department of Neighborhood Development at 26 Court Street.
38 . See Chapter 601 of the Acts of 1981 (effective November 27, 1981).
39 . See Article XXXIX and XXXIX-A of the Bylaws of the Town of Brookline, Conversion of Multifamily Rental Housing and Condominium Conversion Protection for Non-Controlled Tenants (1986).
40 . See Chapter 282 of the Acts of 1994, Section 3 (approved January 4, 1995), which defined, as part of rent control, "the conversion of such housing accommodations to the condominium or cooperative form of ownership," and specifically included Chapter 601 of the Acts of 1981 (approved November 27, 1981) as part of the regulatory scheme being eliminated. On the other hand, the non-rent-controlled conversion permit system would not appear to have been barred by G.L. c. 40P.
41 . See amendment to Brookline, Mass., General Bylaws §5.2 (2015).
42 . Haverhill, Mass., Code, c. 255, §255-99 (2016).
43 . Haverhill, Mass., Ordinances, c. 255, §255-99A (2016). The city council must consider the following factors: (1) the impact of the conversion on the stock of affordable rental housing in the city; (2) the availability of condominium and cooperative units in the city; (3) the impact of the conversion on the physical integrity of the building, the financial viability of the property as rental housing, and the ability of the owner of the property to properly rehabilitate the building where necessary; (4) the potential for relocating the tenants to comparable housing within the city; and (5) the age, physical condition, financial situation, and length of tenancy of the tenants. Haverhill, Mass., Ordinances, c. 255, §255-99C (2016). If the owner fails to assist with relocation or find comparable substitute housing for the tenants, the notice period can be extended up to three years; otherwise, the notice requirements of the statewide law, Chapter 527 of the Acts of 1983 (approved November 30, 1983), apply. Haverhill, Mass., Ordinances, c. 255, §255-99E (2016). Buildings exempted under Chapter 527 of the Acts of 1983 (approved November 30, 1983)—two- and three-family owner-occupied buildings and buildings with six units or fewer—are also exempted under the Haverhill Ordinance. Haverhill, Mass., Ordinances, c. 255, §255-99G (2016).
44 . Lexington, Mass., Code c. 63 (2015) (adopted May 13, 1987, and approved by the Attorney General, August 17, 1987).
45 . Malden, Mass., Rev. Ordinances, c. 3, §3.11 (2016). It is presumed under the ordinance that any eviction is for the purpose of a condominium conversion where certain conditions occur. For instance, there is a conversion when a unit in a building has been sold as a condo; where a master deed has been filed for a building where the unit in question is located; where a master deed has been filed within six months after seeking to "recover possession"; or where any tenant in the building has received a condo notice. The Malden ordinance adopts a variation on one of the concepts first proposed by the ad hoc committee in 1978. Under Malden's law, a person cannot bring any action to "recover possession" of a housing accommodation for condo conversion if the vacancy rate in the city is 5% or less. If that condition exists, a landlord cannot bring an action for eviction until the later of the expiration of the lease agreement or two years from the date of the original conversion notice. However, this section applies only to units where the occupants are in whole or in part over 60 years of age, or where they have lived in the unit for at least five years. The burden is on the tenant to prove age or length of residency. Coverage by this law includes all housing units, excluding only those owned or operated by the federal or state government and two- or three-family owner-occupied units constructed after 1968, except those that have been "substantially rehabilitated" before December 31, 1980. The planning board must issue a certificate of eviction before a court can grant a summary process judgment. The portion of the ordinance that exceeds the statewide law in terms of the scope of buildings covered is not permitted under the statewide law.
46 . See Chapter 270 of the Code of the City of Marlborough, Article IV (formerly Chapter 63, §§132-134 and 136-140, including §127A as added in July 2005, of the Code of the City of Marlborough).
47 . See New Bedford, Mass., Code of Ordinances, c. 13, §13-5 (2016) (enacted by Ordinances of Jan. 14, 1988, §1). As with some other local laws, there is a question whether the coverage of 3-unit buildings is beyond the enabling authority granted by the state condo law.
48 . Newburyport, Mass., Code of Ordinances, c. 5, Art. VIII (2016).
49 . See Chapter 847 of the Acts of 1974 (approved August 14, 1974). Special permits are usually required where housing development is denser than is usually permitted under local zoning laws. See G.L. c. 40A, §9; Middlesex & Boston St. Ry. Co. v. Board of Aldermen of Newton, 371 Mass. 849 (1977).
50 . This legislation, Chapter 218 of the Acts of 1985 (approved July 31, 1985), was obtained through a home rule amendment and took the form of an amendment to Chapter 37 of the Acts of 1976 (approved March 31, 1976), which was a prior rent control enabling law for Somerville. However, the 1985 enabling act provided authority independent of rent control, which arguably survived the abolition of rent control in 1994. As of 1985, Somerville had chosen not to have a local rent control ordinance.
51 . There is some question as to whether Chapter 218 of the Acts of 1985 (approved July 31, 1985) survives passage of G.L. c. 40P and Chapter 282 of the Acts of 1994 (approved January 4, 1995), which prohibit municipalities from having any laws which are part of a scheme of rent control. As a result, and in order to avoid legal challenge, Somerville is only partially enforcing its local condominium ordinance and has withdrawn its implementing regulations.
52 . The ordinance applies to all rental units except: (a) where the master deed was filed and purchase and sale agreements were signed before September 11, 1980; (b) where the apartments were occupied by the owner before a tenant occupied them; or (c) where the unit will be occupied by the owner or the owner’s immediate family.
53 . See Chapter 218 of the Acts of 1985 (approved July 31, 1985); Somerville, Mass., Condominium Conversion Ordinances of 1985-89, Art. IV.
54 . The definition of elderly, handicapped, and low-to-moderate income in Somerville’s 1985 ordinance are the same as in Chapter 527 of the Acts of 1983 (approved November 30, 1983).
55 . The Law Department of the City of Somerville drafted and recommended new rules for the notice provisions in the existing ordinance, Condominium Conversion Ordinance at Sec. 7-67(a). The recommendation will be adopted or rejected by the Condominium Review Board (“CRB”) after public hearing. If approved, the recommendation would require that for future conversions not currently pending before the CRB where no master deed has yet been filed, a minimum 1 or 2 year notice be provided to the tenants and CRB prior to the filing of a master deed with the Registry of Deeds.