Legislative Update – June 7, 2006

2005-2006 GENERAL COURT

Legislative Update – June 7, 2006

E. Christopher Kehoe, Edward A. Rainen, Co-Chairs,
REBA Legislation Committee
Edward J. Smith, REBA Legislative Counsel

Through REBA’s Legislation Committee and Board of Directors a significant number of pending bills are reviewed and positions taken on behalf of REBA. Technical advice is also made available to the Massachusetts House and Senate from time to time.

For copies of legislation visit the General Court’s web site: www.state.ma.us/legis

Priority List

S. 577 Makes execution authority requirements for subordination of mortgage and certain powers of attorney consistent with those for assignment or discharge of mortgage (i.e. no recorded vote necessary for signatory’s authority.) Status: Incorporated by amendment to S. 2278, infra (REBA position: support)

S. 2278 REBA’s omnibus mortgage discharge reform bill. Status: Passed by the
Senate and House, as amended; St. 2006, c. 63. (REBA position:
support)

S. 894 Facilitates registration at the Land Court of instruments executed on behalf
of a corporation. See also H. 793. Status: Committee on the
Judiciary (REBA position: support)

S. 921 Enacts a good and clear record and marketable title act. See also
H.762. (Landowners Title Protection Act). Status: Committee on the
Judiciary (REBA position: support)

S. 1891 Proposes fifty-year statute of limitations under MGL c.40, § 54A relative
to statutory restriction on land in or appurtenant to old railroad rights-of-
way. Status: Joint Committee on Transportation (REBA position:
support)

S. 2104 Authorizes the recovery of attorneys fees in the enforcement of certain
conservation-related and affordable housing restrictions by municipalities
and certain other holders of restrictions. See also H. 4143. Status: Joint
Committee on the Judiciary; text incorporated into Senate amendment to H. 4968 and passed by the Senate; see H. 4968 infra. (REBA position: support)

H. 795 Establishes a 50-year limitation on sand rights and other profits à prendre,
subject to extension, except that in no case shall any such interest in land
expire any earlier than three years from the legislation’s effective date.
Status: Joint Committee on the Judiciary (REBA position: support)

H. 904 Permits certain corporations to perform real estate closings, notwith-
standing statutory prohibition on the practice of law by non-
attorneys. Status: Joint Committee on the Judiciary (REBA position:
oppose)

H. 2606 DOR “tax loop-holes bill” bill. See also H.21. Includes provisions:
(a) to apply the deeds transfer excise tax to transfers of less than fee title
interests in real estate and transfers of controlling interests in any entity
that holds real estate. Status: Not included in final bill. REBA position:
opposed to expanded deeds excise.

(b) to establish a lien on other taxpayer real property in the case of grantor
trusts and “disregarded” entities. Status: Passed with REBA amendment
to require identification of the particular record title holder on such state
tax liens (St. 2005, c. 163, § 18)

(c) to extend 6-year duration of recorded liens for child support to 10
years, subject to extension, consistent with the duration of state tax liens.
Status: St. 2005, c. 163, §45

Other Legislation

S. 149 Requires the Commonwealth to reimburse cities and towns that adopt
“smart growth” districts under M.G.L. c. 40R, for the added education
costs to school districts that result from increased housing production.
Status: St. 2005, c. 141.

S. 166 Livable Communities Act. Status: Joint Committee on Community
Development & Small Business

S. 168 Proposes a Massachusetts Land Use Reform Act. See also H. 3544.
Status: Joint Committee on Municipalities & Regional Government
jointly with the Joint Committee on Community Development & Small
Business.

S. 859 Establishes a Western Division of the Land Court, sitting in Worcester
Status: Joint Committee on the Judiciary

S. 917 Creates an estate of homestead by operation of law and without the
need for a recorded instrument. See also S. 856. Status: Joint Committee
on the Judiciary

S. 922 Requires a recital of the names and addresses of owners of land taken by
eminent domain to be included in the instrument of taking. See also
H.763. Status: Joint Committee on the Judiciary (REBA position:
support)

S. 923 Legislation relative to notice of contract under M.G.L. c.254 and
dissolution of mechanics liens. See also H. 764. Status: Joint Committee
on the Judiciary

S. 1078 Establishes new procedural requirements in foreclosing residential
mortgages, including expanded notice of debtor’s rights; right to cure up
to one day prior to the conduct of the foreclosure sale; non-responsibility
of debtor for mortgagee’s legal fees if default is cured within 60 days of
mortgagee’s notice of intent to foreclose; requirement of court approval
for foreclosure sale conducted earlier than 180 days after notice of intent
to foreclose; requirement of a court determination of fair market value of
the property foreclosed in any suit for deficiency; and post-foreclosure
accounting requirements, including relative to price upon any resale by
foreclosing mortgage holder within 18 months. Status: Joint Committee
on the Judiciary

S. 1169 Expands zoning protection for lawful, non-conforming single-family
and two-family dwellings. Status: Joint Committee on Municipalities &
Regional Government

S. 1171 Legislation to relax the statute of limitations for use violations under
G.L. c. 40A, § 7 Status: Joint Committee on the Judiciary

S. 1245 Sustainable Development Act. Status: Joint Committee on Environment,
Natural Resources & Agriculture

S. 2152 Requires installation of approved carbon monoxide detectors in
residential property. Status: St. 2005, c. 123.

S. 2200 Purports to reverse recent holding by the Land Court re: M.G.L. c.
260, § 31, so as to prevent the acquisition of title by adverse
possession of land or interests in land taken or acquired by the
commonwealth or any political subdivision by “purchase, gift, grant,
eminent domain, tax taking or otherwise” and held for “any public
purpose.” (purports to be retroactive to December 1987) Status: Joint
Committee on the Judiciary

H. 648 Omnibus revision of the Massachusetts Homestead Act. Status: Joint
Committee on the Judiciary

H. 737 Relative to the Uniform Durable Power of Attorney Act. Status: Joint
Committee on the Judiciary

H. 739 Relative to the spousal elective share. Status: Joint Committee on the
Judiciary

H. 808 Filed by the State Secretary, legislation to authorize the use of electronic
notarization of instruments. Status: Joint Committee on the Judiciary

H. 853 Establishes a recitation of statutory powers for fiduciaries having legal
title to or control over real or personal property for which there are
environmental issues requiring action by the fiduciary. Status: Joint
Committee on the Judiciary

H. 956 Provides that the acquisition of a new homestead estate shall not “defeat”
or “discharge” a previous homestead of record. Status: Joint Committee
on the Judiciary (REBA position: opposed as drafted)

H.1823 Provides for a stay of mortgage foreclosure proceedings in any action filed
during, or within 90 days after, a service member’s active duty in the
armed forces when the service member’s ability to comply with the
obligation is materially affected by active duty in the armed forces.
Status: Joint Committee on the Judiciary

H.1838 Provides for a $100 fine for a mortgagee to fail to record a discharge upon
receipt of the mortgage payoff. Status: Joint Committee on the Judiciary

H. 3553 Legislation to relax the statute of limitations for use violations under
G.L. c. 40A, § 7. Joint Committee on the Judiciary

H. 3748 Proposes adoption of the Uniform Real Property Electronic Recording
Act. Status: Joint Committee on the Judiciary

H. 4968 Bill to expedite the land use permitting process and the resolution of
related disputes, including to create a new Permit Session of the Land
Court to decide certain permitting-related appeals; restrict 10-citizen
interventions in c. 91 licensing and municipal harbor plan approvals;
allow local zoning approvals to take effect and owners to proceed at
risk pending any appeal and, subject to local acceptance, changes to
G.L. c.43D for “priority development sites.” Status: Passed by the
House; amended by the Senate to eliminate provisions for the Land
Court Permit Session and for permit issuance notwithstanding
pending appeal, and to incorporate provisions of S. 2104, REBA bill
on restrictions, supra; joint House-Senate conference committee
pending