Code of Massachusetts Regulations
760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF
Title 760 CMR 64.00 - Publicly-assisted Affordable Housing Preservation
Section 64.03 - Notices
Universal Citation: 760 MA Code of Regs 760.64
Current through Register 1531, September 27, 2024
760 CMR 64.03 contains procedures for the giving of Notices by the Owner.
(1) The following categories of notice (each a Notice) to be given by the Owner are governed by 760 CMR 64.03:
(a) notice of the future Termination of an
Affordability Restriction affecting Publicly-assisted Housing, as required by M.G.L.
c. 40T, § 2(a) (a Notice of Future Termination). Where more than one
Termination may occur, the Owner may send one written notice so long as the
Terminations are scheduled to occur within one year of each other, the notice is
given at least two years prior to the earliest termination, and the notice otherwise
complies with 760 CMR 64.03.
(b) notice
of the Owner's intent to complete the Termination of an Affordability Restriction
affecting Publicly-assisted Housing or that such Termination will occur without
action by the Owner, as required by M.G.L. c. 40T, § 2(b) (a Notice of Intent
to Complete Termination).
(c) notice of
the Owner's intent to pursue a potential Sale of Publicly-assisted Housing, and its
offer to sell such Publicly-assisted Housing to the Department or its Designee, as
required by M.G.L. c. 40T, § 2(c) (an Offer to Sell).
(d) notice of the Owner's intent to pursue a
potential sale to a Preservation Purchaser (a Notice of Intent to Sell to a
Preservation Purchaser).
(2) Forms of Notices.
(a)
Each notice shall state:
1. the address of the
Publicly-assisted Housing;
2. the name
and address of the Owner and project sponsor, and the name, address, phone number,
and email of the Owner's designated contact person;
3.
a. the
Government Program that is the basis of each Affordability Restriction(s) that may
Terminate in regard to 760 CMR 64.03(1)(a) and (b) and 760 CMR 64.03(4)(e) and the
number of units that would be affected by the Termination; or
b. the Government Program that is the basis of
each Affordability Restriction(s) affecting the Publically-assisted Housing in
regard to 760 CMR 64.03(1)(c) and (d).
4. such other information requested by the
Department in regard to all notices, as set forth in administrative guidance issued
by the Department; and
5. information
specific to the type of Notice, as set forth in administrative guidance issued by
the Department.
(b) Use of a
current form of Notice issued by the Department shall satisfy the requirements of
760 CMR 64.03(2) if accurate and complete.
(3) Delivery of Notices.
(a) The Owner shall provide any Notice to:
1. all Tenants; and
2. all Institutional Recipients.
The envelope of any Notice provided to Institutional Recipients shall state, in 12 point all caps letters, "ATTENTION: CHAPTER 40T NOTICE."
(b) Notices shall be
delivered as provided in M.G.L. c. 40T, § 2(d). The Owner shall maintain a
record of all Notices delivered, including the date and manner of delivery. The
Owner shall make such record available to the Department upon request.
(4) Timing of Notices.
(a) A Notice of Future
Termination shall be delivered not less than two years and not more than three years
before the Termination of an Affordability Restriction affecting Publicly-assisted
Housing.
(b) A Notice of Intent to
Complete Termination shall be delivered not less than one year and not more than 18
months before Termination of an Affordability Restriction affecting
Publicly-assisted Housing.
(c) A Notice
of Intent to Sell to a Preservation Purchaser shall be delivered prior to the Owner
entering into any Purchase Contract with a prospective Preservation Purchaser. A
Notice of Intent to Sell to a Preservation Purchaser shall remain in effect until
the first of the following to occur:
1. rescission
by the owner with notice to all parties entitled to receive the Notice of Intent to
Sell to a Preservation Purchaser, which shall be required before an Owner who has
issued a Notice of Intent to Sell to a Preservation Purchaser may issue an Offer to
Sell in regard to the Publicly-assisted Housing,
2. a Final Certificate of Exemption certificate is
issued for a Sale to A Preservation Purchaser in regard to the Publicly-assisted
Housing, or
3. 18 months from the date
of the receipt of the Notice of Intent to Sell to a Preservation Purchaser by the
Department.
(d) An Offer to
Sell shall be delivered prior to the Owner entering into any Purchase Contract with
a prospective Purchaser, relating to a proposed Sale of Publicly-assisted Housing
unless the Owner has delivered a Notice of Intent to Sell to a Preservation
Purchaser. Once an Owner has delivered an Offer to Sell to the Department, the Owner
may not rescind the Offer to Sell other than pursuant to a determination by the
Department that:
1. the proposed transaction meets
the requirements of a Sale to a Preservation Purchaser and that rescission will
cause no substantial harm to the interests protected by M.G.L. c. 40T and
760 CMR 64.00; and
2. not less than six months have passed since the
last date on which an offer, to purchase by a Designee pursuant to M.G.L. c. 40T,
§ 3, could have been made.
(e) If Publicly-assisted Housing is subject to a
project-based contract under § 8 of the U.S. Housing Act of 1937 or another
Affordability Restriction relating to rental assistance which by its terms is
renewed upon intervals of less than two years and the owner can demonstrate
reasonable and diligent action to renew the Affordability Restriction then, pursuant
to administrative guidance, the Department may authorize an alternative form of
notice to tenants in lieu of a Notice of Future Termination or a
Notice of Intent to Complete Termination. In the event that the subsidizing agency
denies or fails to renew a Subsidy, and such denial or failure is not due to the
Owner's failure to comply with applicable program requirements, such alternative
notice shall be considered equivalent to timely service of a Notice of Future
Termination and Notice of Intent to Complete Termination in accordance with 760 CMR
64.03.
(f) If the Owner determines not
to renew a subsidy subject to 760 CMR 64.03(4)(e), or otherwise fails to comply with
the requirements of 760 CMR 64.03(4)(e), the Owner shall provide a timely Notice of
Future Termination and Notice of Intent to Complete Termination.
(5) Defective Notice.
(a) If an Owner failed to give
a Notice in a timely manner, or if the content or delivery of a Notice was defective
(a Notice given in each of these circumstances constituting a "Defective Notice" for
purposes of 760 CMR 64.03), then the Owner shall give proper curative Notice in
accordance with the requirements set forth in 760 CMR 64.03(5) (Curative Notice) and
such guidance as the Department may issue. The Department shall not issue any
Certificate of Exemption,
760 CMR
64.07, or Certificate of Compliance,
760 CMR
64.08, in regard to Publically-assisted Housing
until any failure to provide a Notice or any Defective Notice in regard to such
property has either been cured, or found by the Department to be a de
minimis defect, or found by the Department not to be defective, in each
case in accordance with 760 CMR 64.03(5).
(b) Curative Notice shall not be required in the
event of a de minimis defect in a Notice that caused no substantial
harm to the interests protected by M.G.L. c. 40T and
760 CMR 64.00 as determined by the
Department. An owner may request in writing a determination by the Department that a
Notice is sufficient, that defects in such Notice (if any) are de minimus,
and that no curative notice is required.
(c) If a Curative Notice is delivered less than
two years before a Termination in the case of a Notice of Future Termination or less
than one year before a Termination in the case of a Notice of Intent to Complete
Termination, such Curative Notice shall have the effect of extending any time period
set forth in M.G.L. c. 40T or
760 CMR 64.00 as effective from
the date of the Curative Notice (the Extended Time Period).
(d)
Extended Time Period
Required.
1. In giving Curative
Notice when an Extended Time Period is required, the Owner shall be required to
demonstrate reasonable and diligent action to extend the Termination date of an
Affordability Restriction pertaining to the Defective Notice for the Extended Time
Period. Where such Affordability Restriction expires by its own terms and the Owner
does not have the power to extend it or, after taking reasonable and diligent
action, cannot extend it for the Extended Time Period, the Owner shall be bound to
continue the effect of the Affordability Restriction for the Extended Time Period
pursuant to a Curative Equivalent Affordability Restriction.
2. Before the Curative Notice is accepted as
complete and compliant by the Department, the Owner shall enter into a Curative
Equivalent Affordability Restriction for the Extended Time Period, notwithstanding
the expiration of the Subsidy. The Department may provide in guidance standardized
terms for Curative Equivalent Affordability Restrictions.
(e) The Department shall determine the
effectiveness of any Curative Notice for an Offer to Sell or a Notice of Intent to
Sell to a Preservation Purchaser based upon the facts and circumstances and the
effectiveness of the curative undertakings agreed to by the Owner in such Notice to
achieve the purposes of M.G.L. c. 40T and
760 CMR 64.00.
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