Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H2116 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	1 of 1
2	2	HOUSE DOCKET, NO. 673 FILED ON: 1/16/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 2116
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	David T. Vieira
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act relative to the maintenance of private roads, beaches and amenities in municipalities.
13	13	_______________
14	14	PETITION OF:
15	15	NAME:DISTRICT/ADDRESS :DATE ADDED:David T. Vieira3rd Barnstable1/16/2023 1 of 6
16	16	HOUSE DOCKET, NO. 673 FILED ON: 1/16/2023
17	17	HOUSE . . . . . . . . . . . . . . . No. 2116
18	18	By Representative Vieira of Falmouth, a petition (accompanied by bill, House, No. 2116) of
19	19	David T. Vieira relative to the maintenance of private roads, beaches and amenities.
20	20	Municipalities and Regional Government.
21	21	[SIMILAR MATTER FILED IN PREVIOUS SESSION
22	22	SEE HOUSE, NO. 2208 OF 2021-2022.]
23	23	The Commonwealth of Massachusetts
24	24	_______________
25	25	In the One Hundred and Ninety-Third General Court
26	26	(2023-2024)
27	27	_______________
28	28	An Act relative to the maintenance of private roads, beaches and amenities in municipalities.
29	29	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
30	30	of the same, as follows:
31	31	1 SECTION 1: Chapter 84 of the General Laws shall be amended in section 12 by deleting
32	32	2the words, “private way or bridge” in the first line and replacing them with the words, “private
33	33	3way, bridge or other common amenity”.
34	34	4 SECTION 2: Chapter 84 of the General Laws shall be amended in section 12 by inserting
35	35	5at the beginning of said section the following:
36	36	6 For the purposes of sections 12 through 14 of this chapter, the following terms shall have
37	37	7the following meanings:
38	38	8 “Common amenity” shall mean private parks, buildings, recreational facilities, beaches
39	39	9and the like intended for the use by property owners in a private subdivision or area; 2 of 6
40	40	10 “Proprietor” as used in this chapter shall mean the “owner” of land abutting a private
41	41	11road and who has the right to use the private road to access his property;
42	42	12 “Rightful occupant” shall mean any person other than a proprietor with a lawful right to
43	43	13use a private road, bridge or other private amenity by easement, grant or implication.
44	44	14 “Private Road” shall mean a way, whether paved or unpaved, intended primarily for the
45	45	15use of vehicles and shall include any and all appurtenances to such roads or ways, bridges and
46	46	16common amenities including but not limited to roadway rights of way, drainage, abutments,
47	47	17slopes, ramps and approaches and which are not maintained by a city or town.
48	48	18 “Servitude or Equitable servitude” for the purposes of section 12 to 14 of this chapter is
49	49	19an obligation of a proprietor or rightful occupant, whether such obligation is actual or implied, to
50	50	20participate financially or otherwise in the maintenance of private roads, bridges or other common
51	51	21amenities in a private subdivision.
52	52	22 SECTION 3: Said chapter 84 shall be further amended by adding after section 12, the
53	53	23following new section:-
54	54	24 Section 12A: Notwithstanding any general or special law to the contrary, an obligation
55	55	25imposed by a recorded document or otherwise for property owners or occupants to be
56	56	26responsible for or to contribute financially or otherwise to the maintenance of roads, bridges,
57	57	27beaches or other common amenities within a private subdivision shall be deemed to have created
58	58	28an equitable servitude and not a condition or restriction.
59	59	29 An equitable servitude is created when real property is conveyed intending to create a
60	60	30servitude, or if the requirements of a servitude by necessity are met. The creation of a private 3 of 6
61	61	31road, bridge, other structure, or common amenities such as parks and beaches requiring
62	62	32maintenance within a private development shall be deemed to create a servitude for the
63	63	33maintenance of the private road, bridge, structure, or common amenities. Such servitudes and
64	64	34servitudes by necessity shall continue as long as the need for maintenance continues or as long as
65	65	35the road, bridge, structure or amenity remains private.
66	66	36 SECTION 4: Chapter 84 shall be further amended by adding after section 12A, the
67	67	37following new section:-
68	68	38 Section 12B: a. Notwithstanding any law or special law to the contrary, the obligation of
69	69	39any person or entity, whose property abuts any private road or roads and bridges, and who has
70	70	40the right to access private roads, bridges, related beaches or other common amenities, or whose
71	71	41property does not abut such private roads, bridges, beaches and other common amenities but who
72	72	42has the use of such private roads, bridges, beaches, or other common amenities by grant or
73	73	43implication, to maintain or contribute to the maintenance of such roads, bridges, beaches or other
74	74	44common amenities shall continue as long as the privilege, right to use or benefit continues and as
75	75	45long as the road or roads, bridges and common amenities remain private regardless of whether
76	76	46any recorded covenants, conditions and restrictions affecting such subdivision, roads, bridges,
77	77	47beaches or other common amenities have expired.
78	78	48 b. The process for contribution, collection and maintenance of private roads bridges and
79	79	49other common amenities shall be as stated in any recorded document, relating thereto
80	80	50notwithstanding the fact that any conditions or restrictions imposed by said document have
81	81	51expired by the language of the document or by operation of law unless such process is amended
82	82	52by majority vote of owners and occupants having such rights and obligations. Votes to amend the 4 of 6
83	83	53provisions for collection of funds, increase or decrease in assessments and maintenance of roads,
84	84	54bridges, beaches and other common amenities shall be as stated in the recorded document. If
85	85	55there is no provision in such document for increasing or decreasing amounts to be paid in such
86	86	56document or there was no such document previously recorded, the proprietors and rightful
87	87	57occupants may call a meeting pursuant pursuant to the terms of the recorded document as
88	88	58properly amended, or if no such document was previously recorded, then pursuant to sections 12,
89	89	5913 and 14 of this chapter to determine those issues.
90	90	60 c. If no document has been recorded describing the process for determining such
91	91	61maintenance and contributions, proprietors and rightful occupants subject to a servitude shall
92	92	62have the power to create an association of property owners. Such an association may be created
93	93	63by using the provisions of sections 12, 13 and 14 of this chapter. Once an association has been
94	94	64created, all owners and rightful occupants subject to the servitude shall automatically become
95	95	65association members. The association shall establish and follow a formal process, described
96	96	66below, to determine by-laws, maintenance fees and other obligations. No proprietor or rightful
97	97	67occupant shall be required to pay any membership fee as a requirement to belonging to the
98	98	68association. Maintenance fees as determined by the association shall not be deemed to be
99	99	69membership fees.
100	100	70 The association shall have a board of directors consisting of three, five, or seven
101	101	71members. The directors shall be proprietors subject to a servitude, and shall be elected by
102	102	72majority vote of the proprietors and rightful occupants subject to the servitude. The directors
103	103	73shall serve a term to be determined by a meeting of proprietors and rightful occupants. The
104	104	74directors shall hold a general meeting at least once per year, wherein proprietors and rightful
105	105	75occupants belonging to the association may be heard. The directors shall reach decisions on by- 5 of 6
106	106	76laws of the association, maintenance, maintenance fees and other powers through a majority vote
107	107	77and such determinations shall be approved or disapproved by a majority of proprietors and
108	108	78rightful occupants at a meeting called for that purpose. Directors may call additional meetings as
109	109	79they deem necessary or at the request of three or more proprietors and rightful occupants. Notice
110	110	80of all meetings shall be mailed by first class mail, postage prepaid, or otherwise delivered to all
111	111	81reasonably known proprietors and rightful occupants at least fourteen days before the meeting. If
112	112	82the directors fail or refuse to call a meeting when required or when petitioned to do so by three or
113	113	83more proprietors and rightful occupants, proprietors and rightful occupants may convene such a
114	114	84meeting pursuant to section 12 of this chapter. Once an association has been created, any
115	115	85meeting of the proprietors and rightful occupants shall be governed by the by-laws and rules
116	116	86established by the association. No duly called meeting of the proprietors and rightful occupants
117	117	87shall be deemed invalid if reasonable efforts were made to notify all proprietors and rightful
118	118	88occupants who were reasonably known at the time the meeting notices were mailed or delivered.
119	119	89 An association shall have the power to do anything reasonably necessary to manage the
120	120	90roadways, bridges or other common amenities and administer the servitudes. Such powers shall
121	121	91include the power to raise funds necessary to carry out the functions of the association, and the
122	122	92power to enforce rules and regulations. In addition to seeking court enforcement, the association
123	123	93may adopt reasonable rules and procedures to encourage compliance and deter violations,
124	124	94including the imposition of fines, penalties, late fees, and the withdrawal of privileges to use
125	125	95common recreational and social facilities. The association shall have the power to make
126	126	96substantial alterations, improvements, and additions to the common property. Funds may be
127	127	97raised by levying assessments against the individually owned property, and by charging fees for
128	128	98services or for the use the roads and common amenities by rightful occupants. Such fees must be 6 of 6
129	129	99reasonably related to the costs of the operation and maintenance of the roads, bridges and other
130	130	100amenities. An association shall have the power to manage, acquire, and improve common
131	131	101property. An association shall have the power to sue and be sued. Associations shall have the
132	132	102duty to act fairly towards its members and allow all members to participate in decisions. Actions
133	133	103to collect maintenance and other fees may be taken in the District Court in the district where the
134	134	104property subject to the servitude lies.
135	135	105 SECTION 5. This act shall take effect upon its passage.