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Chapter 17Condominium ControlLegal Tactics: Tenants' Rights in MassachusettsEighth Edition, May 2017Is Your Apartment - Pullout . 391Condo Laws: A Brief History . 393Protections for Tenants Under the State Condo Law . 3941.2.3.4.Proper Notice of ConversionRight to PurchaseRent ProtectionsMoving ExpensesLocal Protections for Tenants Facing Condo Conversion . 3961. Abington2. Acton3. Amherst4. Boston5. Brookline6. Cambridge7. Haverhill8. Lexington9. Malden10. Marlborough11. New Bedford12. Newburyport13. Newton14. SomervilleProtections for Tenants Living in Condos . 404Chapter 17: Condominium Control 389

390 s Chapter 17: Condominium Control

Pullout 17Is Your ApartmentBecoming a Condo?Tenants’ Rights in MassachusettsIf your landlord wants to convert yourapartment to a condominium (condo), andyour building has more than 3 apartments,you have rights under state law.Some towns and cities also have local condolaws that give you more rights.The Right to NoticeYour landlord must give you written noticeof plans to convert your apartment to acondo. She must send the notice by certifiedmail or hand-deliver it to you. The noticemust include a statement of your rights.Protect YourselfLocal Condo RightsYour landlord must send the notice to you atleast 1 year before the date she wants you tomove out.Some towns and cities have local condolaws that give you more rights such as:If you have a limited income, are 60 years orolder, or have a disability, the landlord mustgive you notice at least 2 years before thedate she wants you to move out. In Lexington, tenants with school-agechildren, or family, health or financialproblems, may qualify for 5 yearsnotice before they have to move out. In Boston, condo owners are neverallowed to evict tenants if they do nothave a valid legal reason. In New Bedford, condo owners mustsend notice in different languages.Communities with local condo laws verhillLexingtonMaldenMarlboroughNew BedfordNewburyportNewtonSomervilleSome cities and towns require at least3-5 years notice.The move-out date on the notice must notbe sooner than the end date in your writtenlease.You do not have to move out automaticallyby the move-out date. If your landlord wantsyou out, she must file an eviction case incourt. If a judge gives your landlordpermission to evict you, you will have tomove out. But the court may give you moretime to find another place to live.Ask your Town/City Hall for a copy ofthe local condo laws.Chapter 17: Condominium Control 391

Right to BuyWhen your landlord gives you notice of acondo conversion, she must also give you thefirst chance to buy your apartment. This iscalled the “right of first refusal.”With the notice of conversion, the landlordmust include a “Purchase & Sale Agreement”that lists the asking price of your apartment.She cannot advertise the sale for 90 days.If you want to buy your apartment, you have90 days to negotiate with the landlord.After 90 days, the landlord can sell it tosomeone else. The new owner will be yourlandlord.Finding a New PlaceYour landlord must help you find a newapartment, if you do not want to buy yourapartment or you cannot afford to buy it andyou are elderly, have a disability, or have alow income. The new apartment must be inthe same town. And the rent and conditionmust be similar to your current apartment. Ifyour landlord does not find you a newapartment, you have the right to stay 2 yearspast the move-out date on the notice.Protection fromRent IncreasesLandlords may not increase the rent by alarge amount to make you leave before themove-out date.If you have a lease, your landlord can onlyincrease your rent before the lease ends if ithas a Tax Escalator clause and property taxesgo up.392 s Chapter 17: Condominium ControlIf your lease ends before the move-out dateor you do not have a lease, your landlord canincrease your rent.The rent increase cannot be more than 10%of your current rent, or the change in theConsumer Price Index since last year,whichever is less. So, if the Consumer PriceIndex went up 0.8%, your rent could go upby no more than 0.8%.Moving ExpensesIf you move out voluntarily before the dateon the notice, and you are up-to-date withyour rent, the landlord must pay your movingexpenses. Give the landlord advance noticeof the date you are moving. Keep all receiptsof your moving expenses.They must pay up to 750 in moving benefitsor up to 1,000 if you are elderly, disabled, orhave a low income.Some cities and towns have higher movingbenefits. In Boston, landlords must pay up to 6,000 for all tenants and 10,000 for elderly,disabled, or lower income tenants.After the ConversionIf you do not buy the condo, but you rent itafter it becomes a condo, you are a tenant. Ifyou rent a condo, the condo owner mustnotify you, in writing, of the name andphone number of the person responsible forrepairs.You may find it harder to get repairs incommon areas done because the condoassociation may have to approve the Tactics: Tenants Rights inMassachusettsMay 2017

Chapter 17Condominium Controlby Mac McCreightThis chapter tells you how state law protectstenants facing condominium (condo) andcooperative (coop) conversion,1 what localordinances protect tenants against condoconversion, and what rights tenants have whenfacing problems caused by absentee condoowners.Tenants need to be vigilant to be sure thatcondominium conversion is not beingcontemplated, or if it is, that they get the full setof rights and protections provided by state law.Condo Laws:A Brief HistoryIn the late 1970s and early 1980s acondominium boom hit Massachusetts. A newmarket for condos was created by a prosperouseconomy that attracted young professionals andfirst-time home buyers who needed a cheaperform of homeownership and sought entranceinto the expensive real estate market.Apartments in Boston and its suburbs becamevulnerable to condominium conversion.Thousands of rental units were converted tocondominium ownership.2 In somecommunities the entire stock of rental housingwas converted.As condominiums continued to escalate invalue, property owners converted their rentalsto condominiums and absentee owners boughtcondos as investments. As a result, unitspreviously affordable to lower-income residentswere converted to condos and becameunaffordable.3Italicized words are in the Glossarythat adopted certain basic protections fortenants. The law also allowed communities toadopt greater or different protections.4Then, in the early 1990s, the condo marketsagged and there was a glut of newly convertedcondos. While at first condos providedaffordable shelter to young families, manyowners became dissatisfied with thecumbersome rules and regulations, as well aswith the lack of freedom to make repairs oralterations without condominium associationapproval. At the same time, absentee owners ofmany condominiums saw their investments fail,causing them to ignore or abandon theirresponsibilities as owners. More and morecondominiums fell into disrepair. In response,the state legislature adopted more laws toprotect tenants and responsible condominiumowners.In the mid-1990s came the abolition of rent andeviction controls, coupled with a real estateboom. Market forces dramatically raised rentlevels for tenants, and the purchase ofcondominium units had become in many casesunrealistic even for middle-income tenants.During the foreclosure crisis from 2006 untilrecently, there was a lot of uncertainty in themarket. Some of the tenants facingdisplacement due to foreclosure were in unitsconverted to condominiums, and some of theseunits were later reconverted. Some of theproperties were not covered by condoconversion protections because they had 3 unitsor less.In 1983, in response to the threat ofdisplacement tenants faced as a result of condoconversion, the state legislature passed a lawChapter 17: Condominium Control 393

Key Termsto KnowUnder both state and local condo laws,the following words usually mean:5Protections forTenants Under theState Condo LawLow or Moderate Income Your income isconsidered low or moderate if it equals80% of the median income in your areafor a household of your size. Contactyour local housing authority for thefigure in your area.In 1983, the legislature passed a statewidecondominium and cooperative conversioneviction law, providing certain basic protectionsfor tenants in Massachusetts.7 The state condolaw, which applies to buildings with 4 or moreunits, provides that in most situations a landlordwho wants to convert her rental units tocondominiums or a cooperative must provideevery tenant with the following protections:8Elderly You are considered elderly ifyou are 62 years or over. Handicapped People with physicaldisabilities are considered handicapped. Master Deed The master deed is adocument that includes a statement thatthe owner wants to convert the propertyin question into condominiums. Itincludes a description of the land onwhich the building or buildings arelocated; a description of the building; aset of plans showing the layout; astatement of the purpose of eachbuilding and unit, including restrictionson use; the method by which the masterdeed may be amended; the name andmailing address of the managementagent; a statement that by-laws have beenenacted; and the name of the lessor ofeach lease. A master deed must berecorded in the registry of deeds or landregistration office where the real estate islocated.6The state condo law covers all types of housingexcept:Proper notice of conversion,The right of "first refusal"to buy the apartment,Rent protections, andThe right to moving expenses.Public housing,Buildings with 3 or less unitsRooming houses occupied by residentswho stay less than 14 days, andAny building that has not been used forresidential purposes for at least one yearprior to an owner’s filing a master deed fora condo conversion. In addition to the statewide condo law, thefollowing communities have adopted localcondo ordinances, providing tenants with greateror different protections: AbingtonActonAmherstBostonBrooklineHaverhill LexingtonMaldenMarlboroughNew BedfordNewburyportNewtonSomervilleIf you live in any of the above communities,your local condo law applies to you and the394 s Chapter 17: Condominium Control

state condo law does not (although certainstatewide protections cannot be altered).Included in this chapter is a brief explanationabout each of these local ordinances. To get acopy of your local condo law, contact yourlocal town or city hall.Unfortunately, neither the state law norlocal laws provide any protections forconversions of properties with 3 or fewerunits. If you are a tenant in a building with 3 orfewer units that is converting to a condos youare still protected by regular landlord-tenant law,your lease, or any subsidy or use restrictions onthe property.Note: The statewide condo law and localcondo ordinances based on the statewidelaw were not affected by the abolition ofrent control-related regulation in 1994.91. Proper Notice ofConversionIf your landlord wants to convert theapartments in your building into condominiumsor a cooperative, the landlord must send you awritten notice at least 1 year before she wantsyou to move out. If you are a low- or moderateincome tenant or there is an elderly orhandicapped person in your household, yourlandlord must give you 2 years' notice beforeshe wants you out.10 (As noted below, this 2year period must be extended for elderly,handicapped, or low- and moderate-incometenants if the landlord fails to find comparablehousing within the notice period.)A condo conversion notice does not mean thatyou have to automatically move out of yourapartment. The purpose of this notice is tolegally terminate your tenancy. In order to moveyou out, your landlord must file an eviction casein court and a judge must give your landlordpermission to evict you. Unless a judge givesyour landlord permission to evict you, youdo not have to move out of your apartment.In addition, the court may give youadditional time to relocate.11A condo conversion notice must be handdelivered to you or sent by certified mail. Thenotice must include a statement of your rights.If You Have a Lease: If you have a leaseand the term of your lease ends after thedate on the condo conversion notice, yourlandlord cannot force you out before thedate on your lease. If she does, you mayhave legal defenses or counterclaims that youcan use to prevent or delay your eviction.For example, if the notice your landlordsent you was improper, a judge shoulddismiss your eviction case. For informationabout what your rights are during theeviction process and how to fight aneviction, see Chapter 12: Evictions.If you decide to move out before the date onthe notice of a conversion, you may be entitledto moving expenses. Make sure to give yourlandlord proper notice that you are moving out.See the section in this chapter called MovingExpenses and Chapter 11: Moving Out.2. Right to PurchaseUnder the state condo law, when a landlordgives you notice of conversion, she must alsooffer you the first right to purchase your unit.12This is called a "right of first refusal."13 Thelandlord must do this by including with thecondo conversion notice a document called a"purchase and sale agreement." This documentwill tell you how much the landlord wants tosell the unit for once it is converted into acondo. If you want and can afford to buy theapartment, you have 90 days to negotiate apurchase price with the landlord. During this90-day period, the landlord cannot offer to sellthe unit to anyone else.14If you do not want to buy the unit or cannotafford to buy it, the landlord can sell the unit onthe open market after the 90-day period haspassed.15 Any person or entity buying your unitwill then become your new landlord. This newlandlord must follow all the provisions of thestate condo law, and must honor your right toChapter 17: Condominium Control 395

remain in your apartment until the expiration ofyour notice or your lease.If you are an elderly, handicapped, or low- ormoderate income tenant and you do not buy theunit at the end of 90 days, the landlord musthelp you find a new apartment.16 This apartmentmust be in the same town where you now liveand must be comparable to your currentapartment in terms of rent and conditions. Ifyour landlord does not find you a comparableapartment, you are entitled to up to anadditional two years in your current apartment.173. Rent ProtectionsIf you receive notice of a conversion, the lawcontrols how much your landlord can increaseyour rent. The owner of the building or anysubsequent owner of your condo cannotincrease your rent by more than 10% per yearor the increase in the Consumer Price Index theyear before your landlord gave you notice,whichever is less.18 This applies to tenants withor without leases. For example, if your landlordgave you notice that your apartment was beingconverted to a condo in 2016, and the increasein the Consumer Price Index was 0.8% in 2015,your rent could not be raised more than 0.8%.If you have a written lease, your landlord cannotraise your rent until the lease expires. The oneexception is that the landlord can increase theamount of rent as described in the previousparagraph if you have what is called a "taxescalator clause" in your lease. If your lease hasa tax escalator clause, your landlord may be ableto raise the rent before the lease expires if theproperty taxes go up.19 See Chapter 5: Rent formore information about tax escalator clauses.If you have a written lease, the landlord mustalso renew your lease for however long you areallowed to remain in your apartment under theidentical terms. For example, if you had a leasethat expired September 1, 2016, and thelandlord gave you one-year notice of condoconversion in February 2016, the landlordwould have to extend your lease on its originalterms until February 2017.396 s Chapter 17: Condominium ControlIn an effort to avoid giving tenants propernotice of conversion or moving expenses, somelandlords have attempted to raise rents beforethey actually file a master deed, thereby forcingexisting tenants out. Under the law, however,the owner merely has to have an "intent toconvert" in order for tenants to be protectedagainst rent increases.204. Moving ExpensesIf you get a notice of conversion, your landlordmay have to pay a certain amount to cover yourmoving costs. A landlord must pay your movingexpenses if: You do not owe any rent, and You voluntarily move out before the dateon the conversion notice.You are entitled to a maximum of 750. If youare an elderly, handicapped, or low- ormoderate-income tenant, you are entitled to amaximum of 1,000.21 You must document youractual moving expenses.Local Protectionsfor Tenants FacingCondo ConversionThe state condo law allows towns and cities toadopt, by a 2/3rd vote of their local legislativebodies, local ordinances or bylaws regulatingcondominium conversion that are strongerthan, or which otherwise differ from, thestatewide law.22 To get a copy of your localordinance or bylaw, contact your city ortown hall. What follows are brief descriptionsof each of the local condo ordinances inMassachusetts. (While Cambridge does nothave a local condo ordinance, it is discussedhere given its special status as a formerly rentcontrolled community that did not adopt apost-rent-control condo ordinance.)

1. AbingtonAbington has a local bylaw that requires ownersor developers to obtain a permit to convert anexisting structure to condominium orcooperative ownership.23 The developer orowner must first give notice of the intent toconvert to the tenants. This notice to tenantsmust be mailed by registered mail, return receiptrequested, set forth generally the tenants’ rightsunder the bylaw, and include a copy of thebylaw.After an owner or developer gives tenants thenotice of intent to convert, she can then file anapplication for a permit to convert with theTown Clerk, who gives the application to thePlanning Board. The application must include afiling fee, copies of the notices of intent, andother items that may be required by thePlanning Board. The owner or developer mustobtain a permit prior to filing the master deed.The Planning Board must then hold a publichearing within 60 days of the filing of theapplication. It must publish a notice of thishearing in the local paper and send it by mail tothe applicant, owners, and tenants. The Boardmust take final action on the permit applicationwithin 30 days of the public hearing. If noaction is taken, the permit is automaticallyconsidered granted. A copy of the permit mustbe filed with the recorded master deed, and theapplicant must notify the Town Clerk within 10days of recording the master deed. Permitsexpire if a master deed is not filed within 12months of the Planning Board’s issuing thepermit, and an 18-month period must passbefore another permit may be filed.A condominium conversion permit must begranted if the Planning Board finds that theapplicant has fully complied with the localbylaws. A permit may be denied if it is shownthat tenants’ rights were violated prior to theapplication’s filing. The Planning Board mayalso revoke (take back) a permit if five or moretenants petition the Board and show thattenants’ rights have been violated during the 12or 24-month conversion notice period.Within 60 days of the filing of the master deed,the owner or developer must offer to sell eachunit to the tenant occupying the unit on termsand conditions substantially the same as ormore favorable than those in the state condolaw. See Protections for Tenants under theState Condo Law in this chapter.The owner may not proceed with evictionwithin the 12-month period following therecording of the master deed, or within 24months in the case of low- to moderate-income,handicapped, or elderly tenants as defined in thestate condo law. There is no explicit exceptionto these protections for other types of evictionunrelated to condo conversion. There are nospecific additional protections beyond what thestate condo law provides in terms of theowner’s requirement to help low- andmoderate-income, handicapped, and elderlytenants find comparable housing, or to providerelocation assistance.During the conversion notice period, the ownerhas a right to enter the unit to inspect, obtaindata, or show the unit to prospective or actualworkers or purchasers. The owner must give 2days advance notice and may only enter atreasonable times and a tenant may notunreasonably withhold her consent for anowner to enter.Harassment by the owner is barred. Thisincludes unreasonable requests to enter a unit,failure of the owner to make repairs in a timelyand professional manner, imposition ofunjustifiable increases in rent (as measured bythe state condo law), failure to provide thetenant with essential services, and verbalharassment or threats against the tenant.The definitions of “elderly” and “handicapped”in the Abington bylaws differ from the statecondo law: elders are persons age 60 or older,and handicapped includes people with mentaldisabilities.Chapter 17: Condominium Control 397

2. ActonIn 1981, Acton obtained special state enablingauthority to regulate condo conversion beforethe statewide law was passed. This authority wasrevised in 1987.24 Since its condominiumregulation was not based on rent control, itshould not have been affected by the abolitionof rent control-related laws in 1994.25Acton's enabling law prohibits conversion orremoval of certain types of housing as rentalhousing without a permit. Housing that requiresa permit includes buildings with 6 units ormore, or non-owner-occupied buildings with 5units or more. Permits must be granted if: The owner has given proper notice to alltenants of periods to vacate, rights of firstrefusal, relocation benefits, assistance inlocating comparable housing, andappropriate provisions for extension ofrental agreements and rent limitationsduring the notice period. The noticeperiods, rights of first refusal, andrelocation benefits are the same as those inthe statewide law; andThe owner has provided certification froma registered engineer or architect that theunits meet all applicable building and healthcodes.3. AmherstUnder Amherst’s bylaw, adopted in 1984, nocondominium or cooperative conversion ispermitted unless a conversion permit has beenobtained.26 Permits can be obtained only ifeither (a) the vacancy rate for rental units in thetown is above 5%, or (b) prohibiting aconversion would constitute an unconstitutionaltaking, which the Board of Selectmen mustspecifically determine.The Board must consider a number of factorswhen deciding whether to grant or deny apermit, including:398 s Chapter 17: Condominium Control The impact of the proposed conversion onthe tenants; The availability of rental housing ofcomparable type, quality, and cost in thetown; The ease or difficulty of the affectedtenants in finding alternative rentalhousing; Any efforts to lessen the impact on thetenants (including guaranteed rights toremain for fixed periods, payment ofmoving expenses and other relocationcosts, and securing of alternative housing); The physical condition of the property, andthe financial viability of the property ifmaintained as rental housing; Whether the property (or units in it) isvacant, for how long, and why; and The age, financial status, and health of theaffected tenants and the length of theirtenancies.An application for a conversion permit must beaccompanied by a written plan setting out anorderly process for conversion, and adescription of the governing process by whichthe owners’ association or cooperativecorporation shall operate during and afterconversion. The Board of Selectman may alsocondition the granting of a permit upon theowner’s making special provisions for certainunits and the tenants in those units. No permitis to be granted unless an independent licensedengineer or architect certifies that the propertymeets all applicable building and health codes.The Board may enact regulations related to theprocedure for conversion permits and impose areasonable filing fee.Tenants may not be evicted for the purpose ofpermitting renovation, rehabilitation, oroccupancy by purchasers for 9 months after anapplication for a conversion permit, or for 6months after a permit is granted, whichever is

longer. Harassment is prohibited, as is thefailure to make necessary repairs or providerequired services, or the seeking ofunreasonable rent increases during the noticeperiod. Tenants have the right of first refusal topurchase their units. There is no provisionbeyond what the state condo law provides forlonger notice periods, extensions of leases, orrelocation benefits (although the Board couldinclude such conditions in its permit decision). There is a 5-year notice period for elderly,handicapped, or low- to moderate-incomehouseholds, in comparison to the statewide2- to 4-year period. Boston’s ordinance includes people withmental disabilities in the definition of“handicapped.” The 5-year notice period is automatic,unlike the statewide law, which requires thetenant to show that the owner did notprovide relocation assistance in order to getan extension of up to 2 years on theoriginal 2-year period. The notice period applies to both newconversions and units already convertedand occupied by elderly, disabled, or lowto-moderate-income tenants whopreviously had rent control protectionsagainst condominium conversion eviction.34 If an owner has given a notice of proposedconversion, the tenant's lease is to beextended through the notice period, andrent increases through the notice period arelimited to 10% per year or the annualpercentage increase in the Consumer PriceIndex, whichever is less. The owner may evict the tenant only for"just cause." If a tenant is in a unit at the time ofconversion and has not received a notice ofa condo conversion eviction, any eviction ispresumed to be a condo conversioneviction—unless the owner can show thatthis was not the case (for example, theowner simply wanted a higher rent, butintends to keep the unit as rental housing). Relocation benefits are substantially morethan those under the statewide law ( 6,000for all tenants, and 10,000 for elderly,disabled, or low- to moderate-incometenants).354. BostonIn Boston, between 1979 and 1994,condominium conversion protections wereprovided under the city's rent control laws.27Initially, protections were limited to extendednotice periods, right of first refusal, movingexpenses, and relocation assistance, similar tothose ultimately adopted in the statewide law.Beginning in 1984, a condominium conversioneviction ban was established for elderly,disabled, and low- to moderate-income tenants.This was gradually expanded to encompassmore groups. Finally, in 1988, the cityestablished a general ban on condominiumconversion evictions and required that ownersseek removal permits to convert units tocondominiums.28In 1994, rent control laws were abolished by anarrow statewide referendum vote.29 After theexpiration of transitional rent controlprotections in 1995-1996, condo protectionscould no longer be based on rent controlauthority.30 As a result of the efforts of housingadvocates, Boston then adopted a local condoordinance based on the authority in thestatewide condo law.31 Early efforts to adopt alocal condo ordinance in 1995 and 1996,however, were invalidated by litigation filed bythe Greater Boston Real Estate Board.32 In1999, the Boston condo ordinance was finallyadopted and currently remains in effect.33Boston's law differs from the statewide law inthe following respects:Chapter 17: Condominium Control 399

There are two rights of first refusal: (i) atthe time the property is first converted tocondominiums or cooperatives, even if it isnot the owner's intent at that time todisplace the tenant;36 and (ii) any time theowner intends to displace the tenant inorder to facilitate sale or occupancy of acondominium unit. The tenant is to beoffered the unit on the same or betterterms that are offered to third parties andto have a 90-day period to enter into apurchase and sale agreement.Boston's Rental Housing Center is to begiven copies of various notices and affidavitsfrom the owner to monitor compliance.37If there is a dispute about whether a tenantis low- to moderate- income, elderly, ordisabled and therefore entitled to enhancedprotections, either the Center or the courts,at the parties' preference, can resolve thedispute. Other disputes are to be resolvedby the courts.5. BrooklineUp until 2006, the status of condominiumconversion controls in Brookline was unclear.In 1981, Brookline originally provided condoconversion protections under local rent andeviction control laws. Those provisions endedwith the end of rent control in 1994-1996.However, since 1981 Brookline also had aspecial condo conversion enabling law separatefrom its rent control scheme. This localenabling law prohibited any person fromconverting an apartment building or othermultifamily dwelling containing four or moreresidential units to a condominium without firstobtaining a special permit.38 Based on this, in1986 Brookline adopted two local bylawsregarding condo conversion and protection oftenants in properties not otherwise covered byits local rent control law.39 In 1994, thestatewide law eliminating rent control explicitlyreferred to Brookline’s 1981 condo law as oneof the laws which was being abolished.40400 s Chapter 17: Condominium ControlIn 1998, Brookline revised its bylaws, andeliminated any reference to rent control laws orto special income, age, or disabilityqualifications. The result was that specialprotections for e

condos as investments. As a result, units previously affordable to lower-income residents were converted to condos and became unaffordable.3 In 1983, in response to the threat of displacement tenants faced as a result of condo conversion, the state legislature passed a law that adopted certain basic protections for tenants.

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