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Rooftop Leasing – Landlords, Look Before You Leap!

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Written by: Paula G. Curry and Ronald W. Ruth

This month’s edition of Shopping Centers Today, the magazine of the International Council of Shopping Centers, Inc., features an article with the teaser “Higher Income – Landlords are Harnessing their Rooftops to Boost Profits,” noting that building owners are maximizing rooftop use in a variety of ways – everything from roof decks, to cell towers and solar arrays, to theme parks and open space parks.  While it’s tempting to seek to turn otherwise unproductive space into cash, building owners looking to make the leap should consider the following factors:

Massachusetts Permit Session Jurisdiction Explained

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Written by: Sander A. Rikleen and Jennifer L. Ioli 

On February 27th, the Massachusetts Appeals Court again held that certain land use appeals under Mass. G.L.c. 185, §3A, cannot be brought in Housing Court – they may only be brought in Superior Court or in the permit session of the Land Court. 

In Skawski v. Greenfield Investors Property Development, LLC, Mass. Appeals Court Docket No. 13-P-1947, the Court held that the Housing Court did not have jurisdiction over abutters’ appeal of a zoning special permit.  The Greenfield Planning Board had issued a special permit for a 135,000-square-foot retail facility.  The abutters elected to file their appeal in the Western Division of the Housing Court which, they contended, was an appropriate forum under the provisions of G.L.c. 40A, §17.  The developer argued that since its project qualified for the Land Court’s permit session, the appeal could not be heard in the Housing Court.  Three and one-half years later, the Appeals Court agreed, ruling that the developer’s motion to dismiss for lack of subject matter jurisdiction should have been granted.  Since the time within which to bring a timely appeal has long since passed, the abutters’ choice of the wrong forum is fatal to their claim.

What You Need To Know: Boston and Cambridge Energy Use Disclosure Ordinances

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Written by: Jennifer L. Ioli

On July 28, 2014, Cambridge, Massachusetts enacted an energy use disclosure ordinance, joining Boston and several other cities.  The Cambridge ordinance is similar to its Boston counterpart, but contains several differences.  Property owners in each municipality should be familiar with these ordinances.

Take Advantage of the Massachusetts Personal Property Tax Exemption for Solar Installations

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Written by: Margaret C. Kelty and Sander A. Rikleen 

With contributions by: Bethany A. Bartlett

The Massachusetts Appellate Tax Board recently addressed the situation in which a land owner used a solar power system to reduce the electricity bill for other land owned by the taxpayer’s affiliates.  In Forrestall Enterprises, Inc. v. Board of Assessors of the Town of Westborough, the Appellate Tax Board determined that a solar installation that did not supply power to the parcel on which it was installed, or to an adjoining parcel, was nonetheless exempt from personal property taxes. 

The land owner had installed a solar photovoltaic system (the “Solar System”) on property it owned in Westborough, Massachusetts.  Several additional properties in Westborough were owned by related entities, none of which abutted the parcel on which the Solar System was located.  The land owner entered into an agreement with National Grid in which the Solar System was connected to the electrical grid and the land owner received a credit for each kilowatt hour of power generated.  The land owner then used those credits to offset the cost of electricity usage at properties owned by related entities so that only the net electricity consumed was paid for.

Preexisting, Nonconforming Uses and Structures: A Recent Appeals Court Clarification

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Written by: Thomas P. Gorman 

Revisions to local zoning ordinances look prospectively.  Thus, when a zoning ordinance is enacted prohibiting a specific use in any particular district, a property engaged in such use before the enactment will be protected as a preexisting, nonconforming use.  This protection is subject to the requirements of G.L. c. 40A, § 6, which provides in part that preexisting nonconforming structures or uses may be extended or altered, provided that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. 

SJC Decision Permits Solicitation of Nominating Signatures at Supermarket Entrance

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Written by: Joshua M. Alper

Owners and operators of supermarkets and other commercial property in Massachusetts should be aware that on October 10th, the Supreme Judicial Court announced its decision in Glovsky vs. Roche Bros. Supermarkets, Inc., SJC-11434, which allows a candidate for public office to solicit nominating signatures at a supermarket entrance, even a solo site supermarket which does not operate as part of a shopping center or mall.

Recent Changes to the Law of Private Construction Contracts - Your Government is Here to Help You Again

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Written by: Peter Friedenberg

As part of the end-of-session rush at the General Court this summer, significant changes were made to Massachusetts law governing private construction contracts at the urging of general contractor and subcontractor industry groups. Members of the development and lending community were largely taken unaware as the bill moved forward, and unsuccessfully attempted in the later stages of the process to modify or defeat the legislation. Consequently, developers, lenders, contractors, sub-contractors, design professionals and attorneys need to be aware of substantial changes (and many unanswered questions) created by the new statute in the areas of withholding and release of retainage, defining substantial completion, and preparation of punchlists.

Recorded Deed with Defective Acknowledgement Fails to Provide Constructive Notice to Third Parties

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Written by: Anthony L. DeProspo

In a case of first impression, the Massachusetts Appeals Court recently held that a real property grantee could not be charged with constructive knowledge of a prior recorded deed which lacked proper notarization.  The Appeals Court decision in Allen v. Allen, 13-P-605 (Sept. 16, 2014), serves as a stark reminder that statutory formalities are strictly interpreted in the context of real estate conveyances.

A Primer: Economic Loss Doctrine Not Necessarily Bar to Tort Recovery

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Written by: Anthony L. DeProspo

Although the “economic loss doctrine” has historically barred recovery of certain classes of tort damages, the Massachusetts Supreme Judicial Court recently affirmed an Appeals Court decision holding that the doctrine did not bar a condominium association’s negligent construction claim against a developer for alleged faulty construction.  The Court’s ruling in Wyman v. Ayer Properties. LLC, SJC-11474 (July 19, 2014), based almost entirely on equitable principles, represents a potentially significant shift away from generally recognized principles of tort recovery.

Massachusetts Registered Land - A Primer

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Written by: Andrew Royce

Many out-of-state attorneys and real estate professionals are unfamiliar with the existence of registered land in Massachusetts.  Approximately 15 to 20% of Massachusetts land is registered, meaning that title is certified by the Commonwealth, the description of the land and a list of all encumbrances is found on a certificate of title issued by the Land Court, and documents affecting such land must be filed with the Registry District of the Land Court having jurisdiction over the county (or portion of the county) in which the land is located.  Although registered land systems have existed in several states, they are currently used extensively only in Massachusetts and Minnesota.

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