Code of Massachusetts Regulations
760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF
Title 760 CMR 64.00 - Publicly-assisted Affordable Housing Preservation
Section 64.02 - Definitions
(1) Capitalized terms used in 760 CMR 64.00 and not specifically defined in 760 CMR 64.00 shall have the meaning set forth in M.G.L. c. 40T.
Certificate of Compliance - has the meaning set forth in 760 CMR 64.08.
Certificate of Exemption - has the meaning set forth in 760 CMR 64.07.
Curative Notice - has the meaning set forth in 760 CMR 64.03(5).
Defective Notice - has the meaning set forth in 760 CMR 64.03(5).
Disposition to an Affiliate. M.G.L. c. 40T, § 1, excludes certain dispositions to an affiliate of the Owner from the definition of Sale that would otherwise initiate the obligation to provide notice and seek exemption pursuant to M.G.L. c. 40T, § 6(a)(vi). As excluded from the definition of Sale in M.G.L. c. 40T, § 1, Disposition means:
(a) the transfer of a limited partner interest in a limited partnership to an Affiliate of the general partner, provided that any accompanying transfer of the general partner interest is also to an Affiliate of the general partner;
(b) the transfer of a general partner interest in a limited partnership to an Affiliate of the General Partner;
(c) the transfer of a membership interest of an LLC member without management rights to an Affiliate of a managing member, provided that any accompanying transfer of the managing member's management interest or authority is also to an Affiliate of the managing member; or
(d) the transfer of a managing membership interest of an LLC member to an Affiliate of the managing member of the LLC.
Due Diligence Materials - has the meaning set forth in 760 CMR 64.05.
Equivalent Affordability Restriction - means a continuing or replacement Affordability Restriction that meets the following tests:
(a) there is no reduction in the total number of Publicly-assisted Housing units or in the number of units made available to each of Low Income, Very Low Income, and Extremely Low Income households (to the extent units are required to be made available to such households under the existing Affordability Restriction);
(b) there is no increase in the maximum rents currently charged to Tenants for occupancy of any Publicly-assisted Housing rental unit, as such maximum limit may change from time to time pursuant to the Government Program applicable to an existing Affordability Restriction;
(c) any requirements to renew Affordability Restrictions that affect the Publicly-assisted Housing are maintained;
(d) the Equivalent Affordability Restriction is a written agreement recorded or suitable for recording in a registry of deeds or registry district of the land court, or other substantially equivalent written agreement acceptable to the Department, that is enforceable by the Department or another governmental entity, or by any non-governmental entity that has the power to enforce the existing Affordability Restriction; and
(e) if the existing Affordability Restriction was subject to the approval of the Department under M.G.L. c. 184, the Equivalent Affordability Restriction shall be subject to the Department's approval (but solely with respect to compliance with the requirements of said M.G.L. c. 184).
(f) A Curative Equivalent Affordability Restriction is imposed in conjunction with a Curative Notice in order to cure a Defective Notice, in accordance with 760 CMR 64.03(5), or to cure material noncompliance with the due diligence requirements, in accordance with 760 CMR 64.05(3). Its duration shall be determined by the Department in accordance with the applicable provision of 760 CMR 64.00.
(g) An existing Equivalent Affordability Restriction is an Affordability Restriction in place and continuing at the time of cessation, discharge, or removal of another Affordability Restriction that, as to the Affordability Restriction that is ending, meets the requirements of an Equivalent Affordability Restriction.
(h) 760 CMR 64.02(1): Equivalent Affordability Restriction shall not be construed to impose a maximum limit on the number of Extremely Low Income, Very Low Income, or Low Income households.
Extended Time Period - has the meaning set forth in 760 CMR 64.03(5).
Inspection - means an examination of the condition of the premises generally, including dwelling units, building systems, common areas and common grounds, including but not limited to examinations related to environmental, engineering, structural and/or zoning matters; and, further, shall include minimally invasive actions and/or procedures such as sampling building surfaces and collecting soil samples with a narrow gauge auger to establish the condition and functionality of building components or systems that are not in plain view or to investigate the extent of potential issues such as water infiltration, mold and the presence of hazardous materials such as lead paint and asbestos.
Institutional Recipient - means the Department, the Community Economic Development Assistance Corporation (CEDAC), the tenant organization (if any) for the affected Publicly-assisted Housing, the chief executive officer of the municipality in which affected Publicly-assisted Housing is located, and the legal services organization recognized by the Department as covering the geographic area of the affected Publicly-Assisted Housing.
LLC - means Limited Liability Company.
Notice - means a Notice of Intent to Complete Termination, a Notice of Intent to Sell to a Preservation Purchaser, a Notice of Future Termination, or an Offer to Sell.
Notice of Future Termination or Two-year Termination Notice - means the notice required to be given by the Owner under M.G.L. c. 40T, § 2(a). See 760 CMR 64.03.
Notice of Intent to Complete Termination or One-year Termination Notice - means the notice required to be given by the Owner under M.G.L. c. 40T, § 2(b). See 760 CMR 64.03.
Notice of Intent to Sell to Preservation Purchaser - means the notice that the Owner intends to pursue a potential Sale of Publicly-assisted Housing to a Preservation Purchaser and to request an exemption from M.G.L. c. 40T, §§ 3 and 4, pursuant to M.G.L. c. 40T, § 6(a)(iv), (v), (vi), or (vii). See 760 CMR 64.03.
Offer to Sell - means the notice and offer required to be given by the Owner under M.G.L. c. 40T, § 2(c). See 760 CMR 64.03.
Preservation Purchaser - means a Purchaser who commits to Preserve Affordability of Publicly-assisted Housing by:
(a) entering into a Purchase Contract that contemplates a transaction that would be exempt from the provisions of M.G.L. c. 40T, §§ 3 and 4, pursuant to M.G.L. c. 40T, § 6(a)(iv), (v), (vi), or (vii); and
(b) upon performance of the Purchase Contract, assumes any existing Affordability Restriction(s) and/or enters into one or more new Affordability Restrictions to the extent required by the requirements for exemption pursuant to M.G.L. c. 40T, § 6(a)(iv), (v), (vi), or (vii).
Preserve Affordability - has the meaning set forth in M.G.L. c. 40T, § 1, as further affected by 760 CMR 64.02(2).
Purchase Contract. In addition to the types of agreements enumerated in M.G.L. c. 40T, § 1, Purchase Contract shall include, without limitation, a binding offer to purchase or letter of intent between an Owner and a Purchaser.
Purchaser - means a party who has entered into a Purchase Contract with an Owner and who will, upon performance of the Purchase Contract, become the new Owner of the Publicly-assisted Housing.
Sale - as set forth in M.G.L. c. 40T, § 1, shall include:
(a) a transfer, directly or indirectly, of:
1. all or substantially all of the ownership interest in the Owner; or
2. of all or substantially all of the management or controlling interest of the Owner together with a transfer of some or all the ownership interest of such management or controlling interest, whether by transfer of the partnership interests of a limited partnership, the member interest of a limited liability company (LLC), a class of stock or portfolio of shares of a corporation, the beneficial interest in a passive trust, or by other means, but not including:
a. with respect to a limited partnership, the transfer of any other limited partner interest not in combination with the transfer of the general partner interest, which may include a transfer also qualified as a Disposition to an Affiliate under 760 CMR 64.02(1): Disposition to an Affiliate (a); or
b. with respect to an LLC, the transfer of any other member interest not in combination with the transfer of the managing member interest or the interest held by the manager or its Affiliate, which may include a transfer also qualified as a Disposition to an Affiliate under 760 CMR 64.02(1): Disposition to an Affiliate (c); or
c. any transfer similar in substance to the transfers described in 760 CMR 64.02: Sale (a) and (b); and
(b) a transfer of any interest that causes dissolution of the Owner under applicable state law governing corporations, trusts, partnerships, or LLCs.
Simultaneous Replacement. As used in the definition of Termination in M.G.L. c. 40T, § 1, the term Simultaneous Replacement shall include the continuance, by assumption by a Purchaser or otherwise, of an Existing Equivalent Affordability Restriction that remains in place notwithstanding the cessation, discharge, or removal of an Affordability Restriction imposed by a different Government Program.
Successor Designee - has the meaning set forth in 760 CMR 64.04(4).
Termination - has the meaning set forth in M.G.L. c. 40T, § 1, as further affected by the definition of Equivalent Affordability Restriction in 760 CMR 64.02(1).
Third-party Purchaser - means a Purchaser who is not the Department, a Designee, or an Affiliate.
(2) Standards for "Preserve Affordability ". In making a determination as to whether a Purchaser has taken the necessary actions to Preserve Affordability, the Department shall take the following factors into consideration. In each case the burden shall be on the party seeking the determination to provide sufficient evidence to support the Department's determination.
(a) Reasonable and Diligent Actions. In making a determination as to whether the Purchaser has undertaken reasonable and diligent actions to retain, renew or secure Subsidies affecting Publicly-assisted Housing, the Department will consider, in its reasonable discretion, the following factors and information.
1. If the opportunity exists to retain or renew Subsidies under an existing Government Program, the Purchaser must show either:
a. that it made all necessary filings and took all other necessary actions in a complete, timely, and diligent manner, and the Subsidies have been retained or renewed; or
b. new equivalent Subsidies have been secured.
2. If a request to retain or renew Subsidies is denied despite reasonable and diligent actions, or if the availability of Subsidies under an existing Government Program has been reduced or terminated, the Purchaser must show that it undertook diligent efforts to identify and secure an alternative source(s) of Subsidies. In identifying potential Subsidies, the Purchaser shall show, at a minimum, that it consulted with the Department to obtain information about the full range of alternative federal and state Subsidy programs, and that it consulted with the Affected Municipality to obtain information about the full range of alternative local Subsidy programs. A Purchaser who is suspended, debarred, or otherwise prohibited from participating in a Subsidy program that is otherwise available, shall not be considered to have complied with 760 CMR 64.02(2)(a).
(b) Quality Housing. In making a determination as to whether the Purchaser has taken into account the need to ensure that the Publicly-assisted Housing provides quality housing to its Tenants, the Department will consider, in its reasonable discretion, whether a reduction in the total number of affordable units or the number of bedrooms per unit is justified by the aggregate effect of some or all of the following factors:
1. substandard physical condition of the building that fails to meet the requirements of current building, fire, or energy codes;
2. substandard physical condition of the building that fails to meet the requirements of current accessibility codes;
3. the need to provide space within the building dedicated to programs and facilities directly serving the Low Income Tenant population;
4. the need to improve the quality of life of the Low Income Tenant population and/or the marketability of the Publicly-assisted Housing to the Low Income Tenant population; and
5. the need to meet regional Low-income housing needs, including the need for larger units to accommodate families; provided in each case that units should not materially exceed the Department's current minimum dimensional standards for affordable housing units found in the Department's Construction/Rehabilitation Guidelines for developments that receive state assistance, published on the Department's website.
(c) Comparable Replacement Units. In making a determination as to whether the Purchaser has replaced lost units with comparable deed-restricted Publicly-assisted Housing units at an alternative site to the extent of available Subsidies and to the extent feasible, the Department will consider, in its reasonable discretion, the following factors and information. The Purchaser shall provide with respect to the proposed replacement the following information, to the extent applicable:
1. plans of the alternative site and the housing units to be provided and the number of units (to be further categorized by the number of bedrooms per unit) covered by each Affordability Restriction;
2. a copy of the Affordability Restriction(s) to be imposed on the replacement units;
3. a development and/or construction schedule;
4. a financial pro forma and preliminary financing commitment(s); and
5. satisfactory evidence that zoning and all other required approvals have been issued or may reasonably be expected to issue in due course. If the proposed development will not provide the full number of replacement units, the Purchaser must show that it complied with the standards of 760 CMR 64.02(2)(a) in trying to obtain available Subsidies. The Department shall make continuing compliance with this requirement a condition of a Certificate of Exemption, unless the Department or another governmental entity has imposed substantially equivalent requirements. Such conditions may include, at the Department's discretion, the power to impose a lien on the alternative site, not to be released except with the Department's consent upon full compliance.
(d) Minimum Expectations.
1. The Department expects a request for a Certificate of Exemption on the basis of Preserving Affordability to include Affordability Restrictions meeting all of the following requirements to the extent applicable:
a. If an Affordability Restriction pursuant to project-based rental assistance under M.G.L. c. 40T, § 1, Publicly-assisted Housing(i) or (xiii) currently applies to the Publicly-assisted Housing, the Owner and Purchaser must commit to enter into a binding written agreement with the Department suitable for recording in a registry of deeds or registry district of the land court to renew, either at the time of the Sale or at such time as the existing Subsidy contract expires if it remains in effect after the Sale, the current Subsidies imposing such Affordability Restrictions on substantially equivalent terms and conditions for the longest term permissible by the agency administering the applicable Subsidies, and to continue to request such renewals on similar terms up to such time as is necessary to cover the date 30 years from the date of sale.
b. If an Affordability Restriction that does not qualify under 760 CMR 64.02(2)(d)1.a. currently applies to the Publicly-assisted Housing, the Owner and Purchaser must assure through a combination of existing, renewable, and new Affordability Restrictions that such Affordability Restrictions on the affected property will be maintained for at least thirty years from the date of the applicable Sale for the same total number of Publicly-assisted Housing units and the same number of units restricted to each of Low Income, Very Low Income, and Extremely Low Income households as are covered by Affordability Restrictions at the time of the Sale.
c. If a request for a Certificate of Exemption on the basis of Preserving Affordability concerns Publicly-Assisted Housing subject to Affordability Restrictions covered by both 760 CMR 64.02(2)(d)1.a. and b., the Minimum Expectations applicable to both such provisions shall apply.
2. If a request for a Certificate of Exemption on the basis of Preserving Affordability does not meet the requirements of 760 CMR 64.02(2)(d)1.a. and b., to the extent applicable, the Owner and Purchaser must:
a. demonstrate that exceptional circumstances exist preventing them from meeting the requirements of 760 CMR 64.02(2)(d)1.a. or
b., as applicable, including, but not limited to, demonstration of taking extraordinary diligent action to determine that Subsidies meeting the requirements of 760 CMR 64.02(2)(d)1.a. or b.,were not available or were available only on terms that are economically unfeasible; or b. in the case of an interim or bridge Sale based on the Purchaser's representation that a subsequent Sale or financing transaction will provide for extending existing Affordability Restrictions or additional Affordability Restrictions, submit a plan acceptable to the Department indicating how they will meet the requirements of 760 CMR 64.02(2)(d)1.a. or b., as applicable, prior to securing a Final Certificate of Exemption.
3.
a. For property subject to the provisions of M.G.L. c. 40T, § 6, during the four-year period covered by M.G.L. c. 40T, § 10, the Department shall determine appropriate Minimum Expectations on a case-by-case basis, in its sole discretion, depending on the circumstances.
b. The Department may issue administrative guidance in regard to the application of Minimum Expectations pursuant to 760 CMR 64.02(2)(d).
