PART
II. REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE
CHAPTER 184. GENERAL
PROVISIONS RELATIVE TO REAL PROPERTY
Chapter 184: Section 31. Restrictions, defined
Section 31. A conservation restriction means a
right, either in perpetuity or for a specified number of years, whether or not
stated in the form of a restriction, easement, covenant or condition, in any
deed, will or other instrument executed by or on behalf of the owner of the
land or in any order of taking, appropriate to retaining land or water areas
predominantly in their natural, scenic or open condition or in agricultural,
farming or forest use, to permit public recreational use, or to forbid or limit
any or all (a) construction or placing of buildings, roads, signs, billboards
or other advertising, utilities or other structures on or above the ground, (b)
dumping or placing of soil or other substance or material as landfill, or
dumping or placing of trash, waste or unsightly or offensive materials, (c)
removal or destruction of trees, shrubs or other vegetation, (d) excavation,
dredging or removal of loam, peat, gravel, soil, rock or other mineral
substance in such manner as to affect the surface, (e) surface use except for
agricultural, farming, forest or outdoor recreational purposes or purposes
permitting the land or water area to remain predominantly in its natural
condition, (f) activities detrimental to drainage, flood control, water
conservation, erosion control or soil conservation, or (g) other acts or uses
detrimental to such retention of land or water areas.
A preservation restriction means a right, whether or not stated in the form
of a restriction, easement, covenant or condition, in any deed, will or other
instrument executed by or on behalf of the owner of the land or in any order of
taking, appropriate to preservation of a structure or site historically
significant for its architecture, archeology or associations, to forbid or
limit any or all (a) alterations in exterior or interior features of the
structure, (b) changes in appearance or condition of the site, (c) uses not
historically appropriate, (d) field investigation, as defined in section
twenty-six A of chapter nine, without a permit as provided by section
twenty-seven C of said chapter, or (e) other acts or uses detrimental to
appropriate preservation of the structure or site.
An agricultural preservation restriction means a right, whether or not
stated in the form of a restriction, easement, covenant or condition, in any
deed, will or other instrument executed by or on behalf of the owner of the
land appropriate to retaining land or water areas predominately in their
agricultural farming or forest use, to forbid or limit any or all (a)
construction or placing of buildings except for those used for agricultural
purposes or for dwellings used for family living by the land owner, his
immediate family or employees; (b) excavation, dredging or removal of loam,
peat, gravel, soil, rock or other mineral substance in such a manner as to
adversely affect the land’s overall future agricultural potential; and (c)
other acts or uses detrimental to such retention of the land for agricultural
use. Such agricultural preservation restrictions shall be in perpetuity except
as released under the provisions of section thirty-two. All other customary
rights and privileges of ownership shall be retained by the owner including the
right to privacy and to carry out all regular farming practices.
A watershed preservation restriction means a right, whether or not stated in
the form of a restriction, easement, covenant or condition, in any deed, will
or other instrument executed by or on behalf of the owner of the land
appropriate to retaining land predominantly in such condition to protect the
water supply or potential water supply of the commonwealth, to forbid or limit
any or all (a) construction or placing of buildings; (b) excavation, dredging
or removal of loam, peat, gravel, soil, rock or other mineral substance except
as needed to maintain the land and (c) other acts or uses detrimental to such
watershed. Such watershed preservation restrictions shall be in perpetuity
except as released under the provisions of section thirty-two. All other
customary rights and privileges of ownership shall be retained by the owner,
including the right to privacy.
An affordable housing restriction means a right, either in perpetuity or for
a specified number of years, whether or not stated in the form of a
restriction, easement, covenant or condition in any deed, mortgage, will,
agreement, or other instrument executed by or on behalf of the owner of the
land appropriate to (a) limiting the use of all or part of the land to
occupancy by persons, or families of low or moderate income in either rental
housing or other housing or (b) restricting the resale price of all or part of
the property in order to assure its affordability by future low and moderate
income purchasers or (c) in any way limiting or restricting the use or enjoyment
of all or any portion of the land for the purpose of encouraging or assuring
creation or retention of rental and other housing for occupancy by low and
moderate income persons and families. Without in any way limiting the scope of
the foregoing definition, any restriction, easement, covenant or condition
placed in any deed, mortgage, will, agreement or other instrument pursuant to
the requirements of the Rental Housing Development Action Loan program or the
Housing Innovations Fund program established pursuant to section three of
chapter two hundred and twenty-six of the acts of nineteen hundred and
eighty-seven or pursuant to the requirements of any program established by the
Massachusetts housing partnership fund board established pursuant to chapter
four hundred and five of the acts of nineteen hundred and eighty-five,
including without limitation the Homeownership Opportunity Program, or pursuant
to the requirements of sections twenty-five to twenty-seven, inclusive, of
chapter twenty-three B, or pursuant to the requirements of any regulations or
guidelines promulgated pursuant to any of the foregoing, shall be deemed to be
an affordable housing restriction within the meaning of this paragraph.
Chapter 184: Section 32. Effect, enforcement,
acquisition, and release of restrictions
Section 32.
No conservation restriction, agricultural preservation or watershed
preservation restriction as defined in section thirty-one, held by any
governmental body or by a charitable corporation or trust whose purposes
include conservation of land or water areas or of a particular such area, and
no preservation restriction, as defined in said section thirty-one, held by any
governmental body or by a charitable corporation or trust whose purposes
include preservation of buildings or sites of historical significance or of a
particular such building or site, and no affordable housing restriction as
defined in said section thirty-one, held by any governmental body or by a
charitable corporation or trust whose purposes include creating or retaining or
assisting in the creation or retention of affordable rental or other housing
for occupancy by persons or families of low or moderate income shall be
unenforceable on account of lack of privity of estate
or contract or lack of benefit to particular land or on account of the benefit
being assignable or being assigned to any other governmental body or to any
charitable corporation or trust with like purposes, or on account of the
governmental body the charitable corporation or trust having received the right
to enforce the restriction by assignment, provided (a) in case of a restriction
held by a city or town or a commission, authority or other instrumentality
thereof it is approved by the secretary of environmental affairs if a
conservation restriction, the commissioner of the metropolitan district
commission if a watershed preservation restriction, the commissioner of food
and agriculture if an agricultural preservation restriction, the Massachusetts
historical commission if a preservation restriction, or the director of housing
and community development if an affordable housing restriction, and (b) in case
of a restriction held by a charitable corporation or trust it is approved by
the mayor, or in cities having a city manager the city manager, and the city
council of the city, or selectmen or town meeting of the town, in which the
land is situated, and the secretary of environmental affairs if a conservation
restriction, the commissioner of the metropolitan district commission if a
watershed preservation restriction, the commissioner of food and agriculture if
an agricultural preservation restriction, the Massachusetts historical
commission if a preservation restriction, or the director of housing and
community development if an affordable housing restriction.
[ Second
paragraph applicable as provided by 2006, 205, Sec. 22.]
Such conservation, preservation,
agricultural preservation, watershed preservation and affordable housing
restrictions are interests in land and may be acquired by any governmental body
or such charitable corporation or trust which has power to acquire interest in
the land, in the same manner as it may acquire other interests in land. The
restriction may be enforced by injunction or other proceeding, and shall
entitle representatives of the holder to enter the land in a reasonable manner
and at reasonable times to assure compliance. If the court in any judicial
enforcement proceeding, or the decision maker in any arbitration or other
alternative dispute resolution enforcement proceeding, finds there has been a
violation of the restriction or of any other restriction described in clause
(c) of section 26 then, in addition to any other relief ordered, the petitioner
bringing the action or proceeding may be awarded reasonable attorneys' fees and
costs incurred in the action proceeding. The restriction may be released, in
whole or in part, by the holder for consideration, if any, as the holder may
determine, in the same manner as the holder may dispose of land or other
interests in land, but only after a public hearing upon reasonable public
notice, by the governmental body holding the restriction or if held by a
charitable corporation or trust, by the mayor, or in cities having a city
manager the city manager, the city council of the city or the selectmen of the
town, whose approval shall be required, and in case of a restriction requiring
approval by the secretary of environmental affairs, the Massachusetts historical
commission, the director of the division of water supply protection of the
department of conservation and recreation, the commissioner of food and
agriculture, or the director of housing and community development, only with
like approval of the release.
No restriction that has been
purchased with state funds or which has been granted in consideration of a loan
or grant made with state funds shall be released unless it is repurchased by
the land owner at its then current fair market value. Funds so received shall
revert to the fund sources from which the original purchase, loan, or grant was
made, or, lacking such source, shall be made available to acquire similar
interests in other land. Agricultural preservation restrictions shall be
released by the holder only if the land is no longer deemed suitable for
agricultural or horticultural purposes or unless two-thirds of both branches of
the general court, by a vote taken by yeas and nays, vote that the restrictions
shall be released for the public good. Watershed preservation restrictions
shall be released by the holder only if the land is deemed by the commissioner
of the metropolitan district commission and the secretary of environmental
affairs to no longer be of any importance to the water supply or potential
water supply of the commonwealth or unless two-thirds of both branches of the
general court, by a vote taken by yeas and nays, vote that the restrictions
shall be released for the public good.
Approvals of restrictions and
releases shall be evidenced by certificates of the secretary of environmental
affairs or the chairman, clerk or secretary of the Massachusetts historical
commission, or the commissioner of food and agriculture, or the director of
housing and community development or the city council, or selectmen of the
town, as applicable duly recorded or registered.
In determining whether the
restriction or its continuance is in the public interest, the governmental body
acquiring, releasing or approving shall take into consideration the public
interest in such conservation, preservation, watershed preservation,
agricultural preservation or affordable housing and any national, state,
regional and local program in furtherance thereof, and also any public state,
regional or local comprehensive land use or development plan affecting the
land, and any known proposal by a governmental body for use of the land.
This section shall not be construed
to imply that any restriction, easement, covenant or condition which does not
have the benefit of this section shall, on account of any provisions hereof, be
unenforceable. Nothing in this section or section thirty-one and section
thirty-three shall diminish the powers granted by any general or special law to
acquire by purchase, gift, eminent domain or otherwise to use land for public
purposes.
[ Seventh
paragraph effective until
Nothing in this section shall
prohibit the department of telecommunications and energy from authorizing the
taking of easements for the purpose of utility services provided that (a) said
department shall require the minimum practicable interference with farming
operations with respect to width of easement, pole locations and other
pertinent matters, (b) the applicant has received all necessary licenses,
permits, approvals and other authorizations from the appropriate state
agencies, (c) the applicant shall compensate the owner of the property in the
same manner and the same fair market value as if the land were not under
restriction.
[ Seventh
paragraph as amended by 2008, 522, Sec. 40 effective April 15, 2009. For text
effective until
Nothing in this section shall
prohibit the department of public utilities or the department of telecommunications
and cable from authorizing the taking of easements for the purpose of utility
services provided that (a) said department shall require the minimum
practicable interference with farming operations with respect to width of
easement, pole locations and other pertinent matters, (b) the applicant has
received all necessary licenses, permits, approvals and other authorizations
from the appropriate state agencies, (c) the applicant shall compensate the
owner of the property in the same manner and the same fair market value as if
the land were not under restriction.
Chapter 184: Section 33. Public restriction tract index
Section 33. Any city or town may file with the
register of deeds for the county or district in which it is situated a map or
set of maps of the city or town, to be known as the public restriction tract
index, on which may be indexed conservation, preservation, agricultural
preservation, watershed preservation and affordable housing restrictions and
restrictions held by any governmental body. Such indexing shall indicate
sufficiently for identification (a) the land subject to the restriction, (b)
the name of the holder of the restriction, and (c) the place of record in the
public records of the instrument imposing the restriction. Maps used by
assessors to identify parcels taxed, and approximate boundaries without
distances, shall be sufficient, and, where maps by parcels are not available,
addition to other maps of approximate boundaries of restricted land shall be
sufficient. If the names of the holders and the instrument references cannot be
conveniently shown directly on the maps, they may be indicated by appropriate
reference to accompanying lists. Such maps may also indicate similarly, so far
as practicable, (a) any order or license issued by a governmental body entitled
to be recorded or registered, (b) the approximate boundaries of any historic or
architectural control district established under chapter forty C or any special
act, ordinance or by-law where a certificate of appropriateness may be required
for exterior changes, (c) any landmark certified by the Massachusetts
historical commission pursuant to section twenty-seven of chapter nine, (d) any
other land which any governmental body may own in fee, or in which it may hold
any other interest, and (e) such additional data as the filing governmental
body may deem appropriate.
Whenever any instrument of acquisition of a restriction or order or other
appropriate evidence entitled to be indexed in a public restriction tract index
is at the option of the holder of the right to enforce it submitted for such
indexing, the register shall make, or require the holder of the right to
enforce the restriction or order or interest to make, appropriate additions to
the tract index.
The maps shall be in such form that they can be readily added to, changed,
and reproduced, and shall be a public record, appropriately available for
public inspection. If any governmental body, other than a city or town in which
the land affected lies, holds a right to enforce a restriction or order or an
interest entitled to be indexed in a public restriction tract index for any
city or town which has not filed such an index, or if the secretary of
environmental affairs or the Massachusetts historical commission or the
commissioner of food and agriculture or the director of housing and community
development approves a conservation or preservation restriction or agricultural
or watershed preservation restriction or affordable housing restriction held by
a charitable corporation or trust so entitled, and the city or town does not
within one year after written request to the mayor or selectmen file a
sufficient map or set of maps for the purpose, the holding governmental body or
approving secretary, director or commission may do so.
The registers of deeds, or a majority of them, may from time to time make
and amend rules and regulations for administration of public restriction tract
indexes, and the provisions of section thirteen A of chapter thirty-six shall not
apply thereto. No such rule, regulation or any amendment thereof shall take
effect until after it has been approved by the attorney general. New tract
indexes may be filed, from time to time, upon compliance with such rules and
regulations as may be necessary to assure against omission of prior additions
and references still effective.