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HOUSE DOCKET, NO. 4359 FILED ON: 1/30/2025
HOUSE . . . . . . . . . . . . . . . No. 3903
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Thomas W. Moakley and Julian Cyr
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act authorizing the town of Nantucket to impose a real estate transfer fee for affordable and
workforce housing and related capital improvements.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Thomas W. MoakleyBarnstable, Dukes and Nantucket1/30/2025Julian CyrCape and Islands2/3/2025 1 of 13
HOUSE DOCKET, NO. 4359 FILED ON: 1/30/2025
HOUSE . . . . . . . . . . . . . . . No. 3903
By Representative Moakley of Falmouth and Senator Cyr, a joint petition (accompanied by bill,
House, No. 3903) of Thomas W. Moakley and Julian Cyr (by vote of the town) that the town of
Nantucket be authorized to impose a real estate transfer fee for affordable and workforce housing
and related capital improvements. Revenue. [Local Approval Received.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Fourth General Court
(2025-2026)
_______________
An Act authorizing the town of Nantucket to impose a real estate transfer fee for affordable and
workforce housing and related capital improvements.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1. For purposes of this act, the words and phrases set forth in this section shall
2have the following meanings:
3 “Affordable Housing Restriction" is a recorded instrument held by a qualified holder
4which encumbers and/or restricts a real property interest so that the real property interest is
5perpetually or for a term of at least thirty (30) years limited to use as a residence occupied by a
6low or moderate income household which earns less than a specified income level, the upper
7limit of which may not exceed two hundred forty percent (240%) of the Nantucket median
8income. A “qualified holder” is a governmental body or charitable corporation or trust which
9qualifies under the terms of chapter one hundred eight-four of the General Laws (“Chapter 184”)
10to hold an affordable housing restriction. Without limiting the generality of the foregoing,
11“Affordable Housing Restriction” includes but is not limited to any instrument which conforms 2 of 13
12to the requirements of (i) a Nantucket Housing Needs Covenant as described in Chapter 301 of
13the Acts of 2002 and defined in the Town of Nantucket Code.
14 "Housing and Community Development Fund", shall refer to a discrete fund or account,
15established by the county treasurer of the Nantucket County under the provisions of this act.
16 "Eligible Applicants", shall refer to non-profit and for-profit corporations and
17organizations, individuals, and public entities.
18 "Purchaser", shall refer to the transferee, grantee or recipient of any real property interest.
19 "Purchase price", all consideration paid or transferred by or on behalf of a purchaser to a
20seller or his nominee, or for his benefit, for the transfer of any real property interest, and shall
21include, but not be limited to, all cash or its equivalent so paid or transferred; all cash or other
22property paid or transferred by or on behalf of the purchaser to discharge or reduce any
23obligation of the seller; the principal amount of all notes or their equivalent, or other deferred
24payments, given or promised to be given by or on behalf of the purchaser to the seller or his
25nominee; the outstanding balance of all obligations of the seller which are assumed by the
26purchaser or to which the real property interest transferred remains subject after the transfer,
27determined at the time of transfer, but excluding real estate taxes and other municipal liens or
28assessments which are not overdue at the time of transfer; the fair market value, at the time of
29transfer, of any other consideration or thing of value paid or transferred by or on behalf of the
30purchaser, including, but not limited to, any property, goods or services paid, transferred or
31rendered in exchange for such real property interest.
32 "Real property interest", shall refer to any present or future legal or equitable interest in
33or to real property, and any beneficial interest therein, including the interest of any beneficiary in 3 of 13
34a trust which holds any legal or equitable interest in real property, the interest of a partner or
35member in a partnership or limited liability company, the interest of a stockholder in a
36corporation, the interest of a holder of an option to purchase real property, the interest of a buyer
37or seller under a contract for purchase and sale of real property, and the transferable development
38rights created under chapter one hundred eighty-three A of the General Laws; but shall not
39include any interest which is limited to any of the following: the dominant estate in any easement
40or right of way; the right to enforce any restriction; any estate at will or at sufferance; any estate
41for years having a term of less than 30 years; any reversionary right, condition, or right of entry
42for condition broken; and the interest of a mortgagee or other secured party in any mortgage or
43security agreement.
44 "Seller", shall refer to the transferor, grantor or immediate former owner of any real
45property interest.
46 "Time of transfer" of any real property interest shall mean the time at which such transfer
47is legally effective as between the parties thereto, and, in any event, with respect to a transfer
48evidenced by an instrument recorded with the appropriate registry of deeds or filed with the
49assistant recorder of the appropriate registry district, not later than the time of such recording or
50filing.
51 “Town” shall refer to the Town of Nantucket acting by and through the Select Board.
52 SECTION 2. There is hereby imposed a fee equal to one half per cent (½%) of the
53purchase price upon the transfer of any real property interest in any real property situated in
54Nantucket County. Said fee shall be the liability of the seller of such real property interest, and
55any agreement between the purchaser and the seller or any other person with reference to the 4 of 13
56allocation of the responsibility for bearing said fee shall not affect such liability of the seller. The
57fee shall be paid to the Town of Nantucket, or its designee, and shall be accompanied by a copy
58of the deed or other instrument evidencing such transfer, if any, and an affidavit signed under
59oath or under the pains and penalties of perjury by the purchaser or his legal representative and
60the seller or his legal representative, attesting to the true and complete purchase price and the
61basis, if any, upon which the transfer is claimed to be exempt in whole or in part from the fee
62imposed hereby. The Town, or its designee, shall promptly thereafter execute and issue a
63certificate indicating that the appropriate fee has been paid or that the transfer is exempt from the
64fee, stating the basis for the exemption. The register of deeds for Nantucket County, and the
65assistant recorder for the registry district of Nantucket County, shall not record or register, or
66receive or accept for recording or registration, any deed, except a mortgage deed, to which has
67not been affixed such a certificate executed by the Town or its designee. Failure to comply with
68this requirement shall not affect the validity of any instrument. The Town shall deposit all fees
69received hereunder with the Town treasurer. The treasurer shall deposit such fees in the
70Affordable Housing Trust Fund. The fee imposed hereunder shall be due simultaneously with the
71time of transfer of the transfer upon which it is imposed. Notwithstanding the foregoing,
72whenever there is a conveyance of real property interests and a conveyance of personalty related
73thereto at or about the same time, the allocations of payments between real estate and personalty
74agreed to by the purchaser and seller shall not determine the amount of the fee due pursuant to
75this section; instead, the Town may require payment of the fee referred to in real property
76interests so conveyed as determined by the Town.
77 SECTION 3. At any time within seven days following the issuance of the certificate of
78payment of the fee imposed by section two, the seller or his legal representative may return said 5 of 13
79certificate to the Town or its designee for cancellation, together with an affidavit signed under
80oath or under the pains and penalties of perjury that the transfer, with respect to which such
81certificate was issued, has not been consummated, and thereupon the fee paid with respect to
82such transfer shall be forthwith returned to the seller or his legal representative.
83 SECTION 4. The following transfers of real property interests shall be exempt from the
84fee established by section 10. Except as otherwise provided, the seller shall have the burden of
85proof that any transfer is exempt under this section and any otherwise exempt transfer shall not
86be exempt in the event that such transfer (by itself or as part of a series of transfers) was made
87for the primary purpose of evading the fee imposed by section 10.
88 (a) Transfers to the government of the United States, the commonwealth, and any of their
89instrumentalities, agencies or subdivisions, including but not limited to transfers to the Town of
90Nantucket, the County of Nantucket.
91 (b) Transfers which, without additional consideration, confirm, correct, modify or
92supplement a transfer previously made.
93 (c) Transfers made as gifts without consideration. In any proceedings to determine the
94amount of any fee due hereunder, it shall be presumed that any transfer for consideration of less
95than fair market value of the real property interest transferred was made as a gift without
96consideration to the extent of the difference between the fair market value of the real property
97interest transferred and the amount of consideration claimed by the seller to have been paid or
98transferred, if the purchaser shall have been at the time of transfer the spouse, the lineal
99descendant, or the lineal ancestor of the seller, by blood or adoption, and otherwise it shall be 6 of 13
100presumed that consideration was paid in an amount equal to the fair market value of the real
101property interest transferred, at the time of transfer.
102 (d) Transfer to the trustees of a trust in exchange for a beneficial interest received by the
103purchaser in such trust; distributions by the trustees of a trust to the beneficiaries of such trust.
104 (e) Transfers by operation of law without actual consideration, including but not limited
105to transfers occurring by virtue of the death or bankruptcy of the owner of a real property
106interest.
107 (f) Transfers made in partition of land and improvements thereto, under chapter two
108hundred and forty-one of the General Laws.
109 (g) Transfers to any charitable organization as defined in clause Third of section five of
110chapter fifty-nine of the General Laws, or any religious organization, provided that the real
111property interest so transferred will be held by the charitable or religious organization solely for
112its public charitable or religious purposes.
113 (h) Transfers to a mortgagee in foreclosure of the mortgage held by such mortgagee, and
114transfers of the property subject to a mortgage to the mortgagee in consideration of the
115forbearance of the mortgagee from foreclosing said mortgage.
116 (i) Transfers made to a corporation or partnership or limited liability company at the time
117of its formation, pursuant to which transfer no gain or loss is recognized under the provisions of
118section three hundred and fifty-one or seven hundred and twenty-one of the Internal Revenue
119Code of 1986, as amended; provided, however, that such transfer shall be exempt only in the
120event that (1) with respect to a corporation, the transferor retains an interest in the newly formed 7 of 13
121corporation which is equivalent to the interest the transferor held prior to the transfer, or (2) with
122respect to a partnership or limited liability company, the transferor retains after such formation
123rights in capital interests and profit interests within such partnership or limited liability company
124which are equivalent to the interest the transferor held prior to the transfer.
125 (j) Transfers made to a stockholder of a corporation in liquidation or partial liquidation of
126the corporation, and transfers made to a partner of a partnership or to a member of a limited
127liability company in dissolution or partial dissolution of the partnership or limited liability
128company; but the transfer shall be exempt only if (i) with respect to a corporation, the transferee
129receives property (including real property interests and other property received) which is the
130same fraction of the total property of the transferor corporation as the fraction of the
131corporation's stock owned by the transferee prior to the transfer or (ii) with respect to a
132partnership or limited liability company, the transferee receives property (including real property
133interests and other property received) which is the same fraction of the property of the
134partnership or limited liability company as the fraction of the capital and profit interests in the
135transferor formerly owned by the transferee.
136 (k) Transfers consisting of the division of marital assets under the provisions of section
137thirty-four of chapter two hundred and eight of the General Laws or other provisions of law.
138 (l) Transfers of property consisting in part of real property interests situated in Nantucket
139County and in part of other property interests, to the extent that the property transferred consists
140of property other than real property situated in Nantucket County; provided that the purchaser
141shall furnish the Town with such information as it shall require or request in support of the claim
142of exemption and manner of allocation of the consideration for such transfers. 8 of 13
143 (m) The first $2 million of the sale price of any transfer or series of transfers of real
144property interests in a single transaction. Said exemption may be adjusted as determined annually
145by the affirmative vote of two-thirds of voters at an annual or special town meeting.
146 (n) Transfers of minority interests in corporations, trusts, partnerships or limited liability
147companies which are publicly traded, which trades are not part of a series of transfers which
148together constitute a transfer of control of a corporation, trust, partnership or limited liability
149company.
150 SECTION 5. (a) The Town treasurer shall keep a full and accurate account stating when,
151from or to whom, and on what account money has been paid or received relative to the activities
152of the Trust Fund and the Housing Fund. Said account shall be subject to examination by the
153director of accounts or his agent pursuant to section forty four of chapter thirty five of the
154General Laws.
155 (b) Schedules of beneficiaries of trusts, list of stockholders of corporations and lists of
156partnerships filed with the Trust Fund for the purpose of determining or fixing the amount of the
157fee imposed under section ten or for the purpose of determining the existence of any exemption
158under section twelve shall not be public records for the purposes of section ten of chapter sixty-
159six of the General Laws.
160 SECTION 6. A seller who fails to pay all or any portion of the fee established by section
161two on or before the time when the same is due shall be liable for the following additional
162payments in addition to said fee:
163 (a) Interest: The seller shall pay interest on the unpaid amount of the fee to be calculated
164from the time of transfer at a rate equal to fourteen per cent per annum. 9 of 13
165 (b) Penalties: Any person who, without fraud or willful intent to defeat or evade a fee
166imposed by this chapter, fails to pay all or a portion of the fee within thirty days after the time of
167transfer, shall pay a penalty equal to five per cent of the outstanding fee as determined by the
168Town for each month or portion thereof thereafter that the fee is not paid in full; provided,
169however, that in no event shall the amount of any penalty imposed hereunder exceed twenty five
170per cent of the unpaid fee due at the time of transfer. Whenever the Town determines that all or a
171portion of a fee due under this chapter was unpaid due to fraud with intent to defeat or evade the
172fee imposed by this chapter, a penalty equal to the amount of said fee as determined by the Town
173shall be paid by the seller in addition to said fee.
174 SECTION 7. (a) The Town shall notify the purchaser and the seller by registered or
175certified mail of any failure to discharge in full the amount of the fee due under this Act and any
176penalty or interest assessed. The Town shall grant a hearing on the matter of the imposition of
177said fee, or of any penalty or interest assessed, if a petition requesting such hearing is received by
178the Town within thirty days after the mailing of said notice. The Town shall notify the purchaser
179and the seller in writing by registered or certified mail of its determination concerning the
180deficiency, penalty or interest within fifteen days after said hearing. Any party aggrieved by a
181determination of the Town concerning a deficiency, penalty or interest may, after payment of
182said deficiency, appeal to the district or superior court within three months after the mailing of
183notification of the determination of the Town. Upon the failure to timely petition for a hearing, or
184appeal to said courts, within the time limits hereby established, the purchaser and seller shall be
185bound by the terms of the notification, assessment or determination, as the case may be, and shall
186be barred from contesting the fee, and any interest and penalty, as determined by the Town. All
187decisions of said courts shall be appealable. Every notice to be given under this section by the 10 of 13
188Town shall be effective if mailed by certified or registered mail to the purchaser or the seller at
189the address stated in a recorded or registered instrument by virtue of which the purchaser holds
190any interest in land, the transfer of which gives rise to the fee which is the subject of such notice;
191and if no such address is stated or if such transfer is not evidenced by an instrument recorded or
192registered in the public records in Nantucket County, such notice shall be effective when so
193mailed to the purchaser or seller in care of any person appearing of record to have a fee interest
194in such land, at the address of such person as set forth in an instrument recorded or registered in
195Nantucket County.
196 (b) All fees, penalties and interest required to be paid pursuant to this chapter shall
197constitute a personal debt of the seller and may be recovered in an action of contract or in any
198other appropriate action, suit or proceeding brought by the Town; said action, suit or proceeding
199shall be subject to the provisions of chapter two hundred and sixty of the General Laws.
200 (c) If any seller liable to pay the fee established by this act neglects or refuses to pay the
201same, the amount, including any interest and penalty thereon, shall be a lien in favor of the Town
202upon all property and rights to property, whether real or personal, belonging to either such
203purchaser or such seller. Said lien shall arise at the time of transfer and shall continue until the
204liability for such amount is satisfied. Said lien shall in any event terminate not later than six years
205following the time of transfer. Said lien shall not be valid as against any mortgagee, pledgee,
206purchaser or judgment creditor unless notice thereof has been filed by the Town (i) with respect
207to real property or fixtures, in the registry of deeds for Nantucket County, or (ii) with respect to
208personal property, in the office in which a security or financing statement or notice with respect
209to the property would be filed in order to perfect a nonpossessory security interest belonging to 11 of 13
210the person named in the relevant notice, subject to the same limitations as set forth in section
211fifty of chapter sixty two C of the General Laws.
212 (d) Sellers applying for an exemption under subsections (a) through (n) of section four
213shall be required at the time of application for exemption to execute an agreement legally
214binding on sellers and separately legally binding upon any Legal Representative of the sellers (1)
215assuming complete liability for any fee, plus interest and penalties if any, waived on account of
216an allowed exemption subsequently determined to have been invalid, and (2) submitting to the
217jurisdiction of the trial court of the commonwealth sitting in Nantucket County. Fees, plus
218interest and penalties if any, shall be calculated as of the date of the initial property transfer.
219Execution of the above-described agreement shall not be required of any mortgagee, pledge,
220purchaser or judgment creditor unless notice of the agreement has been recorded or filed by the
221Town.
222 In any case where there has been a refusal or neglect to pay any fee, interest or penalties
223imposed by this act, whether or not levy has been made, the Town, in addition to other modes of
224relief, may direct a civil action to be filed in a district or superior court of the commonwealth to
225enforce the lien of the Town under this section with respect to such liability or to subject any
226property of whatever nature, of the delinquent, or in which he has any right, title or interest, to
227the payment of such liability.
228 The Town may issue a waiver or release of any lien imposed by this section. Such waiver
229or release shall be conclusive evidence that the lien upon the property covered by the waiver or
230release is extinguished. 12 of 13
231 SECTION 8. The fee described in section 2 shall be of a ten-year duration from the date
232this act shall take effect. This fee may continue for five-year periods by a majority vote at a
233Town Meeting authorizing the fee. The fee described by section 2 may be (1) decreased, or (2)
234eliminated by two-thirds vote of Town Meeting. In the event that Town Meeting votes to
235eliminate the fee, the balance of any fees previously collected shall be transferred to the Town of
236Nantucket and held by the treasurer in a separate account, and shall first be used to satisfy any
237outstanding liabilities or obligations incurred by the Town of Nantucket or the Affordable
238Housing Trust as a result of imposition of the fee, and the remainder may be expended without
239further appropriation by the Select Board for affordable housing purposes. In the event that the
240liabilities and obligations of the Town of Nantucket or the Affordable Housing Trust exceed the
241amounts transferred to the Town, the fee shall remain in full force and effect until such liabilities
242and obligations have been satisfied.
243 SECTION 9. The provisions of this act are severable, and if any provision hereof,
244including without limitation any exemption from the fee imposed hereby, shall be held invalid in
245any circumstances such invalidity shall not affect any other provisions or circumstances. This act
246shall be construed in all respects so as to meet all constitutional requirements. In carrying out the
247purposes and provisions of this act, all steps shall be taken which are necessary to meet
248constitutional requirements whether or not such steps are required by statute.
249 SECTION 10. If the Town has determined that a fee is due by asserting the application
250of the evasion of fee doctrine described in section 2 then the seller shall have the burden of
251demonstrating by clear and convincing evidence as determined by the Town that the transfer, or
252series of transfers, possessed both: (i) a valid, good faith business purpose other than avoidance
253of the fee set forth in section 2and (ii) economic substance apart from the asserted fee avoidance 13 of 13
254benefit. In all such cases, the transferee shall also have the burden of demonstrating by clear and
255convincing evidence as determined by the Town that the asserted non-fee-avoidance business
256purpose is commensurate with the amount of the fee pursuant to section 2 to be thereby avoided.
257 SECTION 11. Pursuant to state enabling legislation pending with the General Court for
258the adoption of an act providing cities and towns the option to support affordable housing with a
259fee on certain real estate transactions, the legislative body of a city or town by a majority vote
260may adopt said act upon the passage of said act by the Senate and the House of Representatives
261of the General Court, and furthermore, a favorable majority vote of this Article by this Town
262Meeting is also deemed to be a vote by Town Meeting to adopt said act providing cities and
263towns the option to support affordable housing with a fee on certain real estate transactions,
264provided the provisions contained herein are consistent with the provisions of said act.
265 SECTION 12. This act shall take effect ninety (90) days following the date of passage.