Code of Massachusetts Regulations
760 CMR - HOUSING AND LIVABLE COMMUNITIES, EXECUTIVE OFFICE OF
Title 760 CMR 64.00 - Publicly-assisted Affordable Housing Preservation
Section 64.07 - Certificate of Exemption

Universal Citation: 760 MA Code of Regs 760.64

Current through Register 1531, September 27, 2024

760 CMR 64.07 contains standards and procedures for the issuance by the Department of a Certificate of Exemption, in accordance with M.G.L. c. 40T, § 6.

(1) Parties Seeking Exemptions.

(a) In the event of a claimed exemption under M.G.L. c. 40T, §§ 6(a)(iv), (v), or (vii), the Owner and the Third Party Purchaser must jointly seek Preliminary and Final Certificates of Exemption from the Department, confirming that the Sale is not subject to the provisions of M.G.L. c. 40T, §§ 3 and 4, or to 760 CMR 64.05 and 64.06.

(b) In the event of a claimed exemption under M.G.L. c. 40T, § 6(a)(vi), the Owner and the Affiliate Purchaser must jointly seek Preliminary and Final Certificates of Exemption from the Department, confirming that the Sale is not subject to the provisions of M.G.L. c. 40T, §§ 3 and 4, or to 760 CMR 64.05 and 64.06.

(c) In the event of a claimed exemption, either because:
1. the Sale falls into one of the exemption categories expressly listed in M.G.L. c. 40T, §§ 6(a)(i), (ii), (iii), or (viii); or

2. four years have passed after the date of the last event or occurrence that constituted a Termination, as set forth in M.G.L. c. 40T, § 10, then in either case the Owner and (in the case of a Preliminary Certificate of Exemption) the Third Party may individually or jointly, as the case may be, seek a Certificate or Certificates of Exemption from the Department, confirming that the Sale is not subject to the provisions of M.G.L. c. 40T, §§ 3 and 4, or to 760 CMR 64.05 and 64.06.

(2) Submission of Request to Department.

(a) The applicant(s) shall individually or jointly, as the case may be, submit a written request for a Certificate of Exemption in a form and with such documentation as required by the Department in guidance to establish the exemption to the satisfaction of the Department. Such guidance shall provide details as to the specific type of information required for the applicable category of exemption.

(b) The applicant(s) shall simultaneously provide a complete copy of the request to all Institutional Recipients and such additional parties as the Department may provide for in guidance.

(3) Process for Department's Review.

(a) The Department shall review the request and notify the applicant(s) within 15 days if the request is incomplete. The Department shall within 30 days after receipt of a complete request:
1. issue a Preliminary or Final Certificate of Exemption, as applicable, if it determines that the applicant(s) has/have complied with all applicable provisions of M.G.L. c. 40T and 760 CMR 64.00; or

2. issue a Preliminary or Final Certificate of Exemption, as applicable, subject to certain conditions; or

3. issue a written statement of its reasons for denying the requested Preliminary or Final Certificate of Exemption, as applicable.

(b) In the event of an unusually complex review, the Department may extend the review period by not more than 30 days by issuing prior written notice to the applicant(s). The time to respond completely to any request by the Department for action or additional information shall toll any time periods in 760 CMR 64.07(3)(a) or (b).

(c) The process of review shall be deemed an informal non adjudicatory process. The Department will review any written comments submitted and take these into consideration in making its determination on Preliminary and Final Certificates of Exemption. The Department shall provide a copy of its determination to all Institutional Recipients and to any person who submitted written comments on the request for exemption. The Department may rescind a Certificate of Exemption, if it subsequently discovers a willful misstatement or omission of material information in the request.

(d) Preliminary and Final Certificates of Exemption.
1. In the event that the Owner and a Third Party Purchaser or Affiliate have executed a Purchase Contract but have not yet completed the Sale, the Owner and the Third Party Purchaser or Affiliate may (or in the case of a submission under 760 CMR 64.07(1)(a) or (b), must) jointly submit a written request to the Department for a Preliminary Certificate of Exemption.

2. If the Department issues a Preliminary Certificate of Exemption, then it shall be presumed that a Final Certificate of Exemption will issue in due course under the standards and procedures of 760 CMR 64.07, so long as the new Owner can:
a. demonstrate to the Department that the material terms and conditions of the Preliminary Exemption have been met; and

b. provide such additional information as shall be required by the Department in guidance.

(e) Final Certificate of Exemption without Preliminary Certificate of Exemption.
1. A new Owner may seek a Final Certificate of Exemption after the completion of a Sale, without having previously obtained a Preliminary Certificate of Exemption in case of an exemption pursuant to 760 CMR 64.07(1)(c). In such case the information required by 760 CMR 64.07(2) and (3) shall be submitted in a single request for a Final Certificate of Exemption after the Sale.

2. If a Sale has occurred without a Preliminary Certificate of Exemption contrary to 760 CMR 64.07(1)(a) or (b), the Owner may request and receive a Final Certificate of Exemption upon providing the Department with all the information required for a Preliminary Certificate of Exemption and a Final Certificate of Exemption and meeting all applicable standards for receipt of a Preliminary Certificate of Exemption for the relevant category of exemption and such additional requirements as the Department may establish in guidance.

(f) A Preliminary Certificate of Exemption shall expire upon the first of the following to occur:
1. filing of a Final Certificate of Exemption by the Owner with the applicable registry of deeds or registry district of the land court;

2. the notification of the Department by the Owner and Third Party Purchaser (if applicable) that the Sale will not be completed; or

3. two years after the date of issuance of the Preliminary Certificate of Exemption (provided that the Department may extend such period upon demonstration of good cause and likelihood of completion of an exempt Sale within the extended period).

(g) The Purchaser after an exempt Sale is required to make a request for a Final Certificate of Exemption not later than three months after the exempt Sale, unless the Department determines that the Purchaser is diligently pursuing a plan pursuant to 760 CMR 64.02(2)(d)2.b. which will enable it to meet the requirements of 760 CMR 64.02(2)(d)1.a. or b., as applicable, in which case Purchaser is required to make a request for a Final Certificate of Exemption no later than the first to occur of:
1. the expiration of the Preliminary Certificate of Exemption pursuant to 760 CMR 64.07(3)(f)3.; or

2. three months after the execution and, if applicable, filing with the applicable registry of deeds or registry district of the land court of the final Affordability Restriction(s) approved by the Department pursuant to 760 CMR 64.02(2)(d)2.b.

(h) A Final Certificate of Exemption may be filed by the Owner with the registry of deeds or the registry district of the land court of the county in which the real property is located. Any rescission of a Final Certificate of Exemption by the Department shall be so filed by the Department.

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