Contributed By Greenberg Traurig, LLP (Boston)
Real estate law requires diversified skills which need to be tailored to specific transactions. Clients have different needs and approach deals with different goals and concerns. Real estate attorneys must be able to work with each client, explain the complexities and unique aspects of a transaction to the client, determine the client’s objectives (especially the client’s tolerance for risk), and then close the transaction in a way that satisfies the client’s goals. This requires attention to detail, the ability to anticipate issues, and the ability to differentiate between likely and theoretical problems. Real estate law also requires that each deal be viewed holistically. Any transaction may involve land use, environmental law, government relations, tax law, corporate law, finance, construction, and bankruptcy and reorganization. In addition, an understanding of the typical business practices in a broad spectrum of asset classes is critical – including hospitality, office, bioscience, retail, multi-family, and industrial.
The Massachusetts real estate market continues to experience very strong performance, significantly fuelled by a growing Massachusetts economy. Development in Boston, Cambridge and surrounding communities is especially active. A lack of available laboratory space has several communities jockeying to be the next Kendall Square. Development in the Boston Seaport is seemingly limited only by available land. Further expansion of the public transit Green Line is expected spark even more development in Somerville and Medford. However, cities continue to face a shortage of affordable housing and current infrastructure – roads, public transit and utilities – is deteriorating and unable to support anticipated growth.
The most significant deals in the last 12 months have included Gillette’s sale of land in South Boston: Royal Phillips signing a lease to relocate its North American headquarters from Andover to the Northpoint project; Sanofi also signing a lease at Northpoint; the opening of the MGM casino in Springfield and the continued construction of the Wynn casino in Everett; and the agreement of the Pawtucket Red Sox baseball team to relocate to Worcester.
The Tax Cuts and Jobs Act of 2017 (TCJA), created a significant new economic development tool alongside a meaningful tax deferral and abatement mechanism, 'qualified opportunity zones'. The new provision provides a flexible deferral mechanism for short and long-term capital gains for current investments in nearly all asset classes. Unlike Section 1031 'like-kind' deferral, qualified opportunity zones provide:
There are 138 designated Opportunity Zones in Massachusetts, including several located in fast developing communities. Sponsors with access to investors with capital gains and experience in creating new destinations for businesses should be able to provide substantial returns to investors and maximize subsidies to eligible projects and businesses.
The most prevalent form of ownership of real property in Massachusetts is a limited liability company, either formed in Massachusetts or formed in another state and registered with the Massachusetts Secretary of State to transact business in Massachusetts. The protections available through ownership in a limited liability company in Massachusetts are similar to other jurisdictions, namely: limitations on member liability, flexibility of structure, and few corporate formality requirements.
A unique form of real estate ownership in Massachusetts is a nominee trust, which is a 'pass-through' entity and provides some degree of anonymity regarding the beneficial owners of the real estate.
There are no express requirements that are applicable to the transfer of different types of real estate (eg, residential, retail, hotel, industrial) in Massachusetts (though, with hotels and other operating businesses, parties must consider labor laws, sales taxes, and requirements for the transfer of permits). Specific requirements apply to properties in shoreland and tidal areas, properties containing wetlands, and properties with environmental contamination.
The typical instrument of transfer in Massachusetts (for both residential and commercial properties) is a quitclaim deed, which conveys real property with covenants to defend title to the real property from all others claiming by, through or under the grantor (this is similar to a limited or special warranty deed in other jurisdictions). What is typically known as a quitclaim deed in other jurisdictions (ie, a conveyance without any warranties whatsoever) is a release deed in Massachusetts. All deeds in Massachusetts must recite the actual consideration for the transfer.
A deed must be signed by the grantor, acknowledged and signed by a notary in a properly-formatted notary acknowledgement, and contain an adequate description of the real property and the source of the grantor’s ownership (ie, recording information for grantor’s vesting deed). Deeds should also be on white paper no larger than 8.5 inches by 14 inches, single-sided, and leave at least a 3-inch margin on the top right corner of the first page. For a grantor that is an entity, deeds are typically recorded along with a good standing certificate of such entity (obtained from the Massachusetts Secretary of State).
Massachusetts has a separate system for registering deeds and other title documents for what is called 'registered land'. Title to registered land is certified by the Massachusetts Land Court, and requires firstly that a property owner has successfully petitioned the Land Court to obtain title certification, and thereafter that all documents to be 'filed' on title to such land be subject to enhanced scrutiny by the Land Court staff before being accepted for filing. One advantage to registered land is that it is immune to claims of adverse possession. For a transaction involving registered land, it is important to work with a title company that has sufficient experience with registered land, as the requirements for conveying registered land add an additional layer of complexity to a transaction.
Deeds are typically recorded with the registry of deeds for the county in which the real estate lies (some counties are further divided geographically) (and for registered land, deeds are filed with the Land Court in the same geographical jurisdictions). Recording and filing of deeds is typically done by a title company, which serves as an escrow agent for a transaction. It is rare to have in-person closings for commercial transactions, though residential transactions are still typically – but not necessarily – closed in person.
Massachusetts is a 'notice' jurisdiction, meaning that a subsequent bona fide purchaser prevails over a prior grantee which failed to record its deed, whether or not the subsequent bona fide purchaser records its deed. In most commercial transactions, and nearly all residential transaction, escrow is only broken once the deed and other documents are recorded. However, in commercial transactions, title companies also will break escrow based on a 'gap indemnity' given by the grantor.
Due diligence in Massachusetts is similar to other jurisdictions, and buyers in Massachusetts will typically engage third parties to conduct appraisals, property condition reports, environmental reports, zoning reports, surveys, and title searches. Often, attorneys will order and review the title searches, surveys, zoning reports, and sometimes environmental reports, while the clients will typically order and review the appraisal and property condition reports.
Due diligence also typically involves a review of all financial information regarding the property (budgets, operating statements, tax bills, and other bills), as well as a review of all property agreements (eg, leases and service contracts), the latter of which are sometimes reviewed by attorneys.
There are no typical representations or warranties in commercial purchase and sale agreements in Massachusetts – they vary widely by contract and type of property. However, most Massachusetts agreements include seller representations regarding authority, pending litigation, violations of laws, and payment of real and personal property taxes. Remedies for seller misrepresentations are generally also covered by contract, and typical contracts will include a cap on damages payable by a seller. In cases of fraud, a buyer can generally sue for damages in excess of the cap, and in cases in which a buyer can show 'unfair or deceptive' business practices under the Massachusetts Consumer Protection Statute (Massachusetts General Laws, Chapter 93A) a seller can be sued for triple damages, plus attorneys’ fees.
In residential transactions, Massachusetts law provides additional consumer protections for buyers, including sellers’ mandatory disclosure of the existence of lead paint (if known), and status of a septic system and other material issues. Brokers also have a duty to investigate and respond accurately to questions regarding the existence of any defects.
Foreign investors need to be concerned with tax issues, both at the federal and state levels. The ownership structure may have a great impact on taxes from operating income and from a sale of the property or an interest in the property. Foreign investors also need to understand if they will be subject to other federal or state regulatory laws, including securities regulations, environmental laws, foreign corrupt practices statutes and laws requiring the reporting of the acquisition of ownership of US real estate. If foreign investors will have a controlling interest in the owner, the transaction may be reviewed by the federal government. The Foreign Investment in Real Property Tax Act can subject foreign investors to federal income tax liability and the withholding of proceeds from a sale or transfer.
Massachusetts General Laws, Chapter 21E, provides that if a release of hazardous materials occurs on a property, all past and present owners and operators of the property could be held liable for the release by the Commonwealth of Massachusetts. Purchasers of real estate could be liable for a release of hazardous materials or oil even if the purchaser did not cause the environmental contamination. Commercial real estate purchase and sale agreements typically include:
In Massachusetts, zoning is governed by state laws and by municipal ordinances (cities) or by-laws (towns). There is great variation between each municipality's zoning. A buyer of commercial property typically has its counsel perform a zoning analysis of the property during due diligence. In most significant commercial transactions, the buyer also obtains a zoning endorsement to the owner’s policy of title insurance. Some municipalities will provide a zoning letter which certifies that a property is compliant with current zoning, but most municipalities will provide only a statement of the existing zoning classification for a property, along with a statement that there are no known violations (if applicable).
Buyers or potential buyers who wish to change the zoning of a property may seek approvals and permits from local jurisdictions (with the consent of the then-current owner). See also 4.5 Agreements with Local or Governmental Authorities, below.
Governmental takings of land may be effectuated by the state, a municipality, or a local redevelopment authority. The risk of a taking is largely dependent on the location of the land, with land that is adjacent to rights of way or located within a redevelopment area being far more likely to be taken for a public purpose. Takings are generally accomplished by the recording of an order of taking by the taking authority, which essentially clears title to the property, with awards based on an appraised value of the interests in the property. It is common for taking authorities to negotiate a taking (and the taking award) in exchange for a release from the landowner. When conducting its diligence, a buyer should inquire with the seller and the municipality regarding any proposed plans for a taking of the property. In general, an owner cannot prevent a taking, but can challenge the amount of the award.
All counties in Massachusetts, except Barnstable county, impose a transfer tax of USD4.56 per USD1,000 of consideration. Barnstable County imposes a transfer tax of USD6.48 per USD1,000 of consideration. Dukes County and Nantucket County also impose a land bank fee of 2% of a property’s purchase price. By statute, transfer taxes are the seller’s responsibility, but parties can provide in their agreement that a buyer will pay. The amount subject to a transfer tax is “exclusive of the value of any lien or encumbrance remaining thereon at the time of the sale”, so if a buyer is assuming an existing loan secured by the property, transfer taxes are due on the purchase price less the outstanding balance of the loan.
The fee for recording a deed is typically USD125 and paid by the buyer, but the fees for recording any authority documents or title-clearing documents (typically USD75) are paid by the seller. No transfer tax is due if the consideration exchanged is less than USD100.
The Massachusetts Department of Revenue has not adopted any policy requiring that a transfer tax be paid upon the transfer of an interest in a limited liability company, limited or general partnership or a corporation. Transfer taxes are due in connection with the transfer of a beneficial interest in a nominee trust.
See above, 2.6 Important Areas of Law for Foreign Investors.
Acquisitions of commercial real estate are generally financed with the sponsor and other equity investors providing a percentage of the acquisition cost and the remainder of the acquisition cost being provided by a lender or lenders. Most institutional lenders will not finance more than a percentage of a property’s value and also will not lend more than a certain amount of money to a borrower and a borrower’s affiliates. Accordingly, in larger transactions, and transactions involving multiple properties, more than one lender is often involved. The major lender makes a loan to the property owner, and the loan is secured by a mortgage on the owner’s interest in the property. Other lenders either make subordinate loans to the property owner, and receive junior mortgages, or make so-called 'mezzanine loans' to entities which own an interest in the property owner. These mezzanine lenders typically receive as security a pledge of the mezzanine borrowers’ interests in the property owner.
If the borrower is a privately held entity, lenders also often receive a guaranty from the sponsor and other key individuals involved in the development. The guaranty may either guaranty the repayment of the loan, or it may only guaranty any damages the lender suffers as a result of 'bad acts' by the borrower or the property owner, such as misallocation of rents, waste or bankruptcy filings.
A mortgage is the most common type of security interest created by a commercial real estate investor or entity which is borrowing funds to acquire or develop real estate. The property owner may grant more than one mortgage to a lender and it may grant different mortgages to different lenders.
In addition, holders of interests in a property owner often pledge their interest in the property owner as security for loans from mezzanine lenders. Once funds are received by these borrowers, they are invested by the borrowers in the property owner and are used to acquire, develop or operate the property. In general, the relative rights between the holders of each mortgage and the holder of each pledge of an interest in the borrower are set forth in an intercreditor agreement executed by all of the lenders. Absent an intercreditor agreement, the senior mortgage lender generally would prohibit the property owner from granting any other mortgages and would prevent owners of interests in the property owner from pledging those interests as security.
Mortgages are perfected by recording an original mortgage in the applicable registry of deeds. With respect to a security interest created by a pledge of interests in the property owner, mezzanine lenders require that the property owner 'opt in' to Article 8 of the Uniform Commercial Code and that interests in the property owner be represented by certificates. Mezzanine lenders will take possession of the certificate issued to the mezzanine borrower and also will record a Uniform Commercial Code as required under the laws of the mezzanine borrower’s state of organization.
A lender may be required to qualify to do business in Massachusetts based on its level of activity in Massachusetts. If a lender is required to qualify to do business in Massachusetts, but does not qualify to do business in Massachusetts, the failure to qualify to do business in Massachusetts may adversely affect the lender in connection with certain matters such as access to Massachusetts courts, payment of Massachusetts taxes, and the payments of fines and penalties. However, the lender can cure its failure to qualify to do business before taking any action to enforce its loan documents; see also 2.6 Important Areas of Law for Foreign Investors, above.
Massachusetts does not assess any mortgage recording taxes. The cost to record a mortgage is USD175. For transfer taxes, see above 2.10 Taxes Applicable to a Transaction, above.
In general, there are no legal rules and requirements that must be satisfied by a borrower before granting a security interest in its real estate assets. However, the borrower must satisfy all requirements set forth in its organizational documents (articles of organization, by-laws, partnership agreement, limited liability company agreement, etc).
The procedural and other debtor protections that must be overcome before a lender is able to enforce its rights under a mortgage are different for commercial loans and residential loans.
In the case of a residential loan, a lender must first give a borrower a default notice and a 90-150-day 'right-to-cure' period. If the borrower is unable to cure, the borrower can use this period to apply for a loan modification. The Service Members’ Civil Relief Act (SCRA) of 2003 also protects residential owners. Under the SCRA, if a service member is on active duty, a lender cannot foreclose on its mortgage until 90 days after the active duty ends. Lenders go through a procedure with the Land Court to determine whether a borrower is covered by the SCRA. A lender also records an affidavit attesting that it holds the note (or is acting on behalf of the holder of the note), that it holds the mortgage and that it has reviewed the mortgage to determine whether certain subprime characteristics are present. After all of these procedures are satisfied a lender can proceed to foreclose its mortgage.
Mortgage foreclosure typically occurs by making entry onto the mortgaged premises and by following a non-judicial foreclosure process. Foreclosure by entry typically occurs on the same day as the non-judicial foreclosure sale. If the lender maintains peaceable possession of the mortgaged premises for three years from the date of entry, the borrower no longer has a right to redeem the property.
Non-judicial foreclosure requires that the mortgage state that the mortgagee has the 'statutory power of sale'. If the mortgage contains the statutory power of sale, then the lender would proceed to foreclose by giving notice to the borrower and any guarantors and by publishing a notice once a week for three weeks in a newspaper published in the county where the property is located. The first publication must be at least 21 days before the sale. Following the sale of the property at the foreclosure sale, the borrower has no right to redeem the property.
In order for a lender to obtain a deficiency from a borrower or guarantor, a deficiency notice must be sent at least 21 days before the foreclosure sale and the lender must sign and swear to an affidavit within 30 days after the foreclosure sale. A deficiency action generally must be brought within two years after the foreclosure sale.
Existing secured debt can be subordinated to newly created debt by an agreement between the lenders. Such agreements occur often in commercial real estate transactions.
It also should be noted that, with limited exceptions, any advance of funds made under an existing secured debt will not have the same priority as the original secured debt unless the advance was unconditionally required to be made. Most loan agreements require that some condition be satisfied before a lender is required to advance subsequent funds. Accordingly, most funds advanced under existing loans are not unconditional advances, and those subsequently advanced funds would be subject to any intervening liens that arose after the existing secured debt was originally recorded.
Massachusetts General Laws, Chapter 21E, provides that if a release of hazardous materials occurs on a property, all past and present owners and operators of the property could be held liable for the release by the Commonwealth of Massachusetts. The Commonwealth of Massachusetts has a first priority lien on the property to secure any response costs the Commonwealth has incurred. Massachusetts General Laws, Chapter 21E, Section 2 provides that a secured lender is excluded from the definition of owner or operator with respect to releases and threats of releases that first began before the lender acquired ownership or possession of the site if the lender satisfies the requirements of that section. Those requirements include that the lender took no action which caused the release or compelled the borrower to cause the release, that the lender undertakes a response action, and that the lender acts diligently to sell or divest itself of ownership or possession of the site. Massachusetts General Laws, Chapter 21E, Section 2 also sets forth the criteria to determine if the lender acted diligently.
If a security interest is created by a borrower and the lender commences a foreclosure proceeding, but the borrower files for bankruptcy before the foreclosure sale is completed, then the foreclosure sale would be subject to the bankruptcy automatic stay and could not proceed unless the automatic stay was lifted.
If the foreclosure sale was completed (ie, the auction was finished and the winning bidder and the lender signed the purchase and sale agreement) before the bankruptcy was filed, then the borrower’s right of redemption would have been extinguished before the bankruptcy filing and the sale of the property could occur pursuant to the purchase and sale agreement notwithstanding the bankruptcy filing. If the sale was not completed in accordance with the purchase and sale agreement, and it became necessary to hold another foreclose sale, the subsequent foreclosure sale may be subject to the automatic stay.
Design and appearance of new buildings or refurbishment of existing buildings are most commonly regulated at the local municipal level through zoning ordinances (for cities) or by-laws (for towns). The zoning requirements for design and appearance generally involve a non-discretionary site plan or design review by a municipal planning board.
Additional non-zoning design requirements may also apply. These include general ordinances and bylaws applicable to historic districts, neighborhood districts, earth removal, scenic roads, wetlands, off-site signs and billboards, and public shade trees.
Methods of construction are not governed by local zoning, but rather by the State Building Code. This code was enacted in 1972 to eliminate local building codes in favor of a comprehensive code to be applied uniformly across the state. However, the State Building Code is administered by the municipal building inspectors.
The development and designated use of individual parcels of real estate in Massachusetts is primarily regulated at the local level through zoning. There is great variation between the zoning adopted by each municipality. Of the 351 cities and towns in Massachusetts, all but the City of Boston are subject to the Zoning Act (Massachusetts General Law, Chapter 40A). Boston’s zoning enabling act is set forth in 1956 Massachusetts Acts, Chapter 665. Ordinances and by-laws typically regulate uses, dimensions of buildings, frontage requirements, site plan approval, impacts on water resources, and parking and loading.
If a project is allowed by-right, then an applicant proceeds to obtain a building permit from the local building inspector. If a project is not allowed by-right, then an applicant must obtain relief from a municipal permit granting authority. Zoning relief is generally divided into two categories: (i) variances, and (ii) special permits. The application for special permit or variance must be filed with the city or town clerk and with the applicable municipal permit granting authority. Additional procedural requirements, which must be meticulously observed, include publication, posting and mailing notices to 'parties in interest'. The following provisions are generally applicable:
In either case, a copy of the decision must be filed within 14 days of the final action in the office of the city or town clerk.
Any 'person aggrieved' (as defined by statute and as broadly interpreted by Massachusetts courts) or 'any municipal officer or board', may appeal the grant of a special permit or variance. Appeals based on procedural defects must be filed within 90 days following the filing of the decision with the city or town clerk. Other appeals (so-called 'substantive' appeals) must be filed within 20 days of the filing of the decision with the clerk.
Agreements can be entered into with municipalities to facilitate developments, but must be fashioned in a manner that does not invite their interpretation as illegal 'contract zoning' on the basis that a municipality may not contract away its police power. The preferred approach is to have agreements executed in advance without a promise by the governmental authority to grant the permit or enact the zoning change, but also to have the agreements be effective simultaneously with the granting of the permit or enactment of the zoning and expiration of any appeal periods.
Valid restrictions in special permits and variances are typically enforced by the municipal building inspector.
There are a variety of entities available for investors to acquire and hold real estate assets, including limited liability companies, corporations, partnerships, and trusts. Limited liability companies are the most commonly used entity (see 2.1 Ownership Structures, above), but each entity type presents unique advantages and disadvantages, which are discussed below.
Using a distinct entity to hold real estate may limit:
It is common for owners of real estate to create distinct 'single purpose entities' for each property they own.
Massachusetts limited liability companies (LLCs) are governed by the Limited Liability Company Act (Massachusetts General Laws, Chapter 156C). LLCs formed in other states can also hold real estate in Massachusetts, provided they register with the Massachusetts Secretary of State. The flexibility of LLCs stems from their governance, which is through a contract known as an 'operating agreement'. Operating agreements for LLCs are generally more customizable than articles of organization can be for corporations. For example, LLCs are not required to hold annual meetings, whereas corporations are so required.
LLCs are managed either by their manager(s) or their member(s), which are listed in their operating agreement. Managers and members of LLCs can be natural persons or business entities. An LLC’s managers and members are typically not personally liable for the debts and actions of the LLC.
Massachusetts corporations are governed by the Massachusetts Business Corporation Act (Massachusetts General Laws, Chapter 156D). A Massachusetts corporation is formed by filing articles of organization with the Secretary of State. The names and addresses of a corporation’s directors and officers must be disclosed with the filing of the articles of organization (and subsequent annual reports) and are publicly available. Such directors and officers must be individuals rather than other business entities. A corporation’s shareholders need not be publicly disclosed. A corporation will require a set of by-laws (which are not publicly filed) in addition to the articles of organization. As with LLCs, an out-of-state corporation can hold real estate in Massachusetts, provided it registers in Massachusetts.
Corporations are owned by their shareholders, who do not manage the day-to-day affairs of the corporation. Instead, corporations are managed by their directors and officers. A corporation’s shareholders are typically not personally liable for the debts and actions of the corporation. Although they manage the corporation, directors and officers are not personally liable for the corporation’s actions by merely holding positions. Massachusetts corporations indemnify their directors and officers for reasonable costs of defending claims brought against them personally because of their role within the corporation.
Corporations offer some flexibility, but are generally constrained by statutory requirements pertaining to their governing documents.
Massachusetts partnerships are governed by the Uniform Partnership Act (Massachusetts General Laws, Chapter 108A). For purposes of holding real estate, a limited partnership (LP), governed by the Uniform Limited Partnership Act (Massachusetts General Laws, Chapter 109) is more commonly used.
In LPs, there are general partner(s) and limited partner(s); the liability of the general partner(s) is not limited, but the limited partner(s) do have limited liability, provided they do not manage or control the LP. This structure is typically used where the general partner is the real estate professional, providing expertise and execution of a project, and the limited partner(s) provide the capital investment. LPs are formed by filing a certificate with the Commonwealth. As general partners are liable in LPs, they are often structured as LLCs or corporations to limit their liability as well.
Nominee trusts may also be used to hold title to real estate. A trust is created by a Declaration of Trust, which is publicly recorded and names the trustee(s), but not the beneficiaries; the beneficiaries are named in an unrecorded Schedule of Beneficiaries. A trustee of a nominee trust has no authority to act without the direction of the trust’s beneficiaries. A nominee trust does not provide any limitation on liability.
A corporation in Massachusetts is typically subject to income tax at the corporate level; however, certain corporations, 'S corporations', may make an election to eliminate the corporate level income tax and pass the income and losses directly to its shareholders. Entities that are S corporations for federal purposes are S corporations for Massachusetts purposes, with the exception of security corporations. All corporations in Massachusetts are subject to an excise tax.
LLCs have the same classification for Massachusetts tax purposes as they do for federal income tax purposes. A single-member LLC will be treated as a entity disregarded as separate from its owner for Massachusetts income tax purposes, if it is disregarded for federal tax purposes.
An LLC with two or more members will be treated as a partnership if it is treated as a partnership for federal tax purposes. An LLC will be treated as a corporation for Massachusetts income tax purposes if it is classified as such for federal tax purposes.
Massachusetts partnerships are generally not subject to income tax. Instead, the income and losses pass through to the partners who pay income tax on their share of the partnership income. There are no requirements or conditions on either the partnership or its partners to take advantage of this 'pass-through' tax treatment.
Nominee trusts are not taxable entities and should not have a separate tax id number.
See above, 5.2 Main Features of the Constitution of Each Type of Entity.
There are a variety of arrangements allowing the use of real estate owned by another party for a limited period of time, generally ranging in terms of duration from easements, to life estates, to leases, to licenses, to tenancies at will, and to tenancies at sufferance.
An easement for a specified period of time is most often used when the use involves use of land, or a portion thereof, which is unimproved. It can be exclusive or not exclusive, and may benefit an owner of adjacent land, in which case it typically runs with that land until expiration, or may benefit a party in gross, in which case it does not run with any land, and often is not transferable.
A life estate is typically established in estate planning contexts, and is conferred on the benefited party by a will or a trust, running for the life of the benefited party. Usually, it is not transferable, and may or may not be exclusive.
A lease is an agreement whereby a landlord confers upon a tenant an interest in land in the form of an exclusive right to occupy some portion or all of the landlord’s real property for a specified period of time. Commonly, a leasehold can be assigned to a third party, and typically survives the transfer of the landlord’s property.
A license is an agreement not involving an interest in real property whereby a licensor confers upon a licensee a limited right to use the licensor’s real property. Commonly, a license is not transferable, and typically does not confer sole possession. It may or may not be terminable by the licensor prior to the stated expiration date.
A tenancy at will is an agreement similar to a lease; while it can be a written arrangement, it often is an oral arrangement, and in either case it is terminable by the owner of the real property on short notice pursuant to statute unless a written arrangement specifies a different notice period.
A tenancy at sufferance is the form of arrangement which exists when a tenant holds over after expiration of a lease, and it is usually governed by the form of lease in terms of payment of use and occupancy charges and other issues.
There are several types of commercial leases, as detailed below.
In this type of lease, the landlord commonly leases only land to the tenant for a specified term, usually several decades long. The tenant pays ground rent, covers all costs and expenses and is responsible for constructing and maintaining all improvements to the premises. Upon the expiration of the ground lease, possession of the land and ownership of any improvements revert to the landlord.
In this type of lease, the landlord usually leases an entire building to the tenant, while the tenant pays rent as well as the operating expenses for the property, such as taxes, insurance, maintenance and utilities. The extent to which the tenant pays such operating expenses varies – for instance, the landlord sometimes retains responsibility for purchasing insurance of the building, or for making structural repairs to the exterior of the building.
In this type of lease, the landlord usually leases just a portion of the real property to a given tenant, and provides some services to the tenants in the building. In office buildings the landlord typically pays the existing or 'base' operating expenses for the property, and those operating expenses as of the time the lease is signed are then built into the base rent, with the tenant paying in each year of the lease their proportionate share of escalation charges to the extent that the operating expenses increase during the term above the base. However, in retail buildings, the tenants typically pay their proportionate share of all operating expenses, including the base amount.
Massachusetts does not regulate the rents charged or the duration or other terms of a lease in a commercial context. However, by statute there are requirements limiting the power of a landlord to disclaim liability for its actions, and requiring a tenant to file public notice of its leasehold in order to protect its tenancy where the duration of the lease including renewals exceeds seven years. Similarly, there is case law which affects the ability of landlords and tenants to seek certain remedies in the absence of provision in a lease – for instance, commercial lease covenants are now dependent unless the lease provides otherwise.
Residential leases are heavily regulated. Certain terms are required, while others are prohibited. There are specific laws regarding security deposits, the final month's rent and compliance with the sanitary code.
Commercial lease terms, whether net or gross leases, typically range from five to 15 years. Ground leases commonly have terms ranging from 40 to 99 years.
In a net lease the tenant is commonly responsible for maintaining and repairing the improvements and the surrounding land, and for paying for the cost of property and commercial liability insurance, although in some cases the landlord retains responsibility for maintenance of the structural elements of the building and of the surrounding property, and for purchasing the insurance for the property.
In a gross lease the landlord is typically responsible for maintaining the common areas within the building and the surrounding real property, and for purchasing property and liability insurance for the real property, with the costs being built into the base rent and escalations in an office context. The landlord commonly provides routine cleaning services to the tenant, but the tenant commonly remains liable for damages to the leased premises.
Rent payments are typically made on a monthly basis, although in a ground lease it is not unusual for rent to be paid annually or quarterly. Escalation charges are usually computed annually, with estimated payments made until actual expenses are known. Percentage rent is often payable in a retail context; typically, that computation is done on an annual basis, in some cases with payments on an estimated basis until actual sales figures are available.
Commercial rents commonly increase annually in accordance with negotiated increases in a fixed amount. Office leases typically provide for rents to be adjusted to the current market at the point of a renewal or extension, or on a cost-of-living adjustment basis, depending on the terms of the lease. Retail leases usually have fixed base rents, with a percentage rent payment that is tied to annual sales.
Annual rent increases in base rent are commonly negotiated prior to entering into a lease. Increases can be expressed in terms of a fixed dollar amount or a per-square-foot amount based upon a formula, such as the Consumer Price Index. Where the parties cannot agree upon the rent at the point of renewal or extension, the parties usually agree to arbitrate the matter using input from leasing brokers having at least ten years of experience in the market.
VAT is not payable on commercial rents in Massachusetts, although the rents paid to a landlord may be subject to income taxation assessed upon the owner.
The costs payable by a tenant at the start of a commercial lease depend in part on whether the lease is a ground lease, a net lease or a gross lease. In a ground lease, the tenant is usually responsible for all costs of construction of improvements on the land conveyed. In a net lease, the tenant is responsible for constructing or remodelling any existing improvements and for the payment of all expenses in connection therewith. In a gross lease, landlords commonly deliver the space with mechanical services stubbed to the premises, giving the tenant a dollar allowance for the construction of the tenant’s improvements.
Alternatively, the landlord may be responsible for building out the space to meet the tenant’s needs as set forth in plans of the premises annexed to the lease at execution. This is known as a 'turnkey' lease. Such leases may include a cap on the landlord’s construction costs, with the tenant responsible for expenses that exceed this cap.
In a residential lease, the tenant can only be required to make the following upfront payments: first month’s rent, security deposit (may not exceed one month’s rent), final month’s rent, and cost of a new lock and key.
In a commercial ground lease and a net lease, the tenant is commonly responsible for all maintenance and repair costs. In a commercial gross lease the landlord commonly pays for maintenance and repair of the building structure, and common areas used by several tenants, such as lobbies, elevators, parking lots and gardens, while tenants are commonly responsible for maintenance and repair costs relating to the tenant’s premises. However, commercial tenants are often responsible for reimbursing the landlord for their pro rata share of operating expenses, which includes the expenses incurred by the landlord in maintaining the building structure and the common areas.
In a commercial ground lease and a net lease, the tenant is commonly responsible for all costs of services, utilities and telecommunications.
In a commercial gross lease, the costs of services, utilities and telecommunications to the common areas are part of the base rent and escalation charges, and the costs of services utilities and telecommunications to the premises are commonly paid for by tenants based either upon actual usage (where that can be determined) or estimated on a relatively predictable basis (for instance, each tenant’s space often is metered or submetered for electricity), or the tenant pays pursuant to a formula or a fixed electrical charge that is estimated at the commencement of the lease.
In a gross lease the payment for charges for heating, ventilation and air conditioning (HVAC) depends on how the property is designed. Most commonly, tenants are all served by a single universal HVAC system during business hours (with the expenses of that built into the base rent and escalations), and such tenants are commonly subject to special charges for after-hours HVAC. In some buildings the HVAC system has been designed so that each premises has its own HVAC system, with expenses charged to the respective tenant. In addition, tenants often have their own supplemental cooling system for data and telecom rooms, or to provide after-hours cooling for some or all of their space, with expenses charged to that tenant.
In a commercial ground lease and a net lease, the tenant is commonly responsible for all costs of property and commercial liability insurance. In a commercial gross lease, the landlord is typically responsible for obtaining all property and commercial liability insurance, and the costs are built into the base rent and escalations charged to the respective tenants. In addition, each tenant typically obtains insurance for its business fixtures and other personal property located in the premises.
In Massachusetts leases, there is usually a provision obliging each party to secure a waiver of subrogation from its respective insurer, although sometimes the language requires this only if such a waiver is available without additional premium.
The landlord commonly imposes somewhat general restrictions on the tenant’s use of the real estate via the permitted use provision (eg, office, research and development, laboratory, light manufacturing). The tenant’s use can also be affected by restrictions relating to the office park or industrial park within which the property is located, as well as zoning laws, building and health laws and regulations and environmental laws. In addition, leases sometimes grant specific exclusive use rights to individual tenants, particularly in the retail context, limiting the ability of other tenants to engage in such activities.
In a ground lease and a net lease, the tenant commonly has the ability to alter or improve the real property with the landlord’s approval, such improvements including structural changes and non-structural changes.
In a gross lease, tenants are typically permitted to alter or improve the premises with the landlord’s prior written approval, and landlords generally allow non-structural changes not affecting building systems without prior approval. A lease usually contains a limit on the cost and type of alterations a tenant can make without the landlord’s approval.
Commercial leases are generally governed by the agreement between the parties. For instance, it is common for leases to include specific provisions regulating tenant behaviors so that a multi-tenanted property is utilized appropriately. There are also regulations at the state and municipal levels that would affect certain aspects of a tenancy (eg, access for the disabled, energy usage and monitoring, usage of hazardous materials in the workplace, etc). In addition, there are laws and licensing requirements that are specific to particular uses, such as the operation of hotels, restaurants, bars, medical and recreational marijuana stores, and the like.
With respect to residential leases, see also 6.3 Regulation of Rents or Lease Terms and 6.8 Costs Payable by Tenant at the Start of a Lease, above.
The effect of the tenant’s insolvency upon its lease obligations is governed by the applicable bankruptcy, insolvency and creditors’ rights statutes.
When the tenant files for bankruptcy under federal bankruptcy law, an automatic stay is imposed which initially restricts the enforcement of remedies or the termination of the lease by the landlord, absent relief from the bankruptcy courts. Thereafter, there are specific requirements under bankruptcy law with respect to whether a lease, which is a contractual agreement, is to be assumed or rejected, and which establish the methods for calculation and recovery of rents unpaid as of the date of the bankruptcy filing.
At lease execution a landlord commonly requires a security deposit from the tenant to protect against a default by the tenant.
The amount of the security deposit in a commercial lease is a matter of negotiation and may depend on the amount of rent, the landlord’s upfront costs and the tenant’s financial condition. The security deposit may be in the form of cash, a letter of credit, or a guaranty by a parent entity that controls the tenant.
A letter of credit or a parent guaranty is generally considered more desirable to a landlord than a cash security deposit as such forms of security deposit place the landlord in a better position in the event of the bankruptcy of the tenant.
In a residential lease, a security deposit cannot exceed one month’s rent. There are several additional requirements regarding providing statements of condition, holding security deposits in bank accounts earning interest and paying or crediting interest.
Upon expiration or earlier termination of a commercial lease, the tenant’s rights are converted into a tenancy at sufferance, and the tenant commonly has no right to occupy the premises.
Commercial leases in Massachusetts commonly have a 'holdover' provision that states that if a tenant continues to occupy the premises after the expiration or termination of the lease, then the tenant must pay as use and occupancy charges for the holdover period a multiplier of the rent for the last month of the lease (typically 150-200%) and become a tenant at sufferance. A tenant at sufferance may be evicted at any time after the termination or expiration of the lease, but the commercial eviction procedures in Massachusetts are such that the landlord should anticipate a holdover period of at least a few months.
There are no generally applicable statutory rights pertaining to commercial lease termination, except in the context of the insolvency or bankruptcy of the tenant. Thus, as a general matter, the subject of termination rights is a matter of negotiation between the landlord and the tenant.
There are a few events that typically give a tenant the right to terminate the lease. For example, the lease typically states that if the landlord fails to complete the build-out of the premises in a timely manner, the tenant has the right to terminate after a further delay of a specified length. A tenant may also have rights to termination in the event of a taking by eminent domain, or in the event of a casualty that materially impacts the use of the premises where the premises are not restored within a certain time. A tenant may negotiate the right to an early termination of the lease, but such early termination rights are often very expensive, particularly where the landlord has made a significant investment in tenant improvements.
The landlord also has the right to terminate in the event of a taking by eminent domain, or in the event of a casualty that cannot be restored within a certain period of time, or where insurance proceeds are not sufficient to cover the expenses of restoration. In addition, a landlord can commonly terminate the lease if the tenant defaults and fails to cure the default – for example, by failing to pay rent, failing to maintain proper insurance or failing to adhere to the covenants of the lease, such as a violation of the permitted use provision or adhering to building rules. A landlord may negotiate the right to relocate the tenant to another space or even terminate the lease if the landlord wants to redevelop the subject property.
Certain special provisions regarding termination do exist for certain types of governmental tenants, typically permitting such governmental tenants to terminate if the necessary funding becomes unavailable.
A tenant can be evicted in the event of default prior to the lease expiration date or in the event that a tenant holds over after the expiration date and becomes a tenant at sufferance. For example, a tenant can be evicted for failure to pay rent or for otherwise violating the lease. The statutes and rules applicable to summary process govern such eviction actions in Massachusetts.
A landlord in Massachusetts is not allowed to engage in self-help eviction of the tenant.
The eviction of a residential tenant must proceed in accordance with law, which requires notices, filing a court action and serving an executed judgment.
A lease may be terminated by the government through a taking by eminent domain for a public purpose. A tenant commonly receives no compensation in that event, other than such sums as may be payable by the taking authority for business fixtures and for relocation benefits under state or federal law.
A lease also may be terminated by the effect of a foreclosure of a mortgage that is senior to a lease. Such seniority may be established by the recording priority of the mortgage, or by the execution of a subordination agreement by the tenant in favor of the mortgagee. Many leases provide for the execution by the mortgagee of a subordination, non-disturbance and attornment agreement, which will allow a tenant to remain in the event of the foreclosure of the mortgage as to the landlord’s interest in the premises.
In Massachusetts, common pricing models for construction projects include (i) fixed price (also referred to at times as lump sum or stipulated price), and (ii) cost plus a fee – either subject to a guaranteed maximum price, or not subject to a guaranteed maximum price.
Most often the architect leads the design team, employing additional core disciplines, although these disciplines and other consultants may also be separately engaged by an owner to work in co-ordination with an architect of record. For construction, the management of the project is often assigned to a construction manager. Other owners will engage a general contractor, and may also elect to engage a project manager or other owner’s representative to assist the owner with project oversight and management.
Construction risk is often managed by, among other things, indemnification, warranties, limitations of liability, delay damage limitations and other waivers of damages, provisions relating to insurance, bonding and subcontractor default insurance, subcontract pass-through provisions, contingency (in the case of a guaranteed maximum price contracts) and other economic provisions and controls (such as shared savings or other incentives), as well as liquidated damages. Massachusetts law prohibits an indemnification clause that makes a subcontractor liable for a general contractor’s negligence.
Contract provisions require contractors and subcontractors to adhere to schedules prepared by the contractor or construction manager. In particular, the contractor’s work should be subject to a 'time is of the essence' clause, and construction schedules should identify key interim and completion milestones, as well as critical path activities. Delay events should be subject to prompt and timely notice with an obligation to substantiate impact to the critical path of the work. Owners should consider the extent of weather events that may be assumed within the contractor’s construction schedule, and clearly define force majeure events. Owners can receive compensation for delays if provided for in the contract.
The most common form of additional security to guarantee a contractor’s performance is a performance bond. Performance bonds are required for most public projects. In private projects, there may also be completion guarantees provided from parent or related companies, depending on the nature of the transaction and the parties involved.
The Massachusetts construction lien law is codified at Massachusetts General Laws, Chapter 254. Under the construction lien law, a person who has entered into a written contract with an owner (or a person acting on behalf of the owner) for the “erection, alteration, repair or removal of a building, structure or other improvement to real property, or for furnishing material or rental equipment, appliances or tools” has a lien upon the real property upon recording a Notice of Contract with the appropriate registry of deeds. Subcontractors, design professionals and subcontractors of design professionals also can record Notices of Contract and obtain liens on the real property.
Liens can be removed by filing bonds. In addition, if a contractor is providing payment and performance bonds, then the owner should also have the contractor provide a statutory lien bond pursuant to Massachusetts General Laws, Chapter 254, Section 12. Typically, there is no additional cost to obtain a statutory lien bond. The statutory lien bond should prevent any of the contractor’s subcontractors from filing a lien against the project.
In general, a Certificate of Occupancy must be obtained before a building may be occupied following any new construction.
A seller of real property in Massachusetts that is (i) a corporation (or another entity that is taxed as a corporation), and (ii) selling all or substantially all of the assets of such corporation located in Massachusetts other than in the ordinary course of business, must, at least five days before the sale or transfer, file a corporate tax return with the Massachusetts Department of Revenue, notifying the Commissioner of Revenue of the proposed sale or transfer, the price, terms and conditions and the character and location of the assets. All corporate excise returns must be filed and any taxes due must be paid at or prior to the sale. Failure to notify the Commissioner of Revenue of the proposed sale, and to pay the tax or receive a waiver, creates a three-year lien against assets of the corporation to the extent necessary to pay any taxes due.
As a practical matter, if a seller is a corporation or an entity electing to be taxed as a corporation for federal tax purposes, notice is given to the Commissioner of Revenue, and a Tax Good Standing Certificate is delivered as promptly as possible after closing. The transfer of real estate raises problems in this regard because a lien attaches to the real property until the taxes are paid. An escrow of payment funds can be held to pay or assure payment of the seller’s taxes.
If a seller is not a corporation (or taxed as a corporation), or if the sale of the property is not the sale of all or substantially all of the assets of such corporation located in Massachusetts, then the seller must state the same on the deed, and no funds need be escrowed for the payment of such taxes.
There is no mortgage tax in Massachusetts, so there is no need to mitigate mortgage taxes. Regarding transfer taxes, see 2.10 Taxes Applicable to a Transaction, above.
Municipal taxes are based on the assessed value of the real and personal property. The fiscal property tax year in Massachusetts runs from July 1 to June 30. Each municipality in Massachusetts may choose from three different taxing schedules under Massachusetts General Laws, Chapter 59. Under the schedule applicable to the City of Boston, for example, the bills for the first two quarters are based on the assessed value of the property (both real property and personal property) for the previous year. The bills for the second two quarters are based on the current year, and adjustments for any shortfall or overage paid during the first two quarters are included. Each bill is typically due on the first of the middle month of each quarter. For the City of Boston, quarterly tax bills are due on August 1, November 1, February 1 and May 1 of each fiscal year.
See above, 2.6 Important Areas of Law for Foreign Investors.
Taxpayers who own real property that is used in a trade or business may avail themselves of certain beneficial tax rules, including the ability to take depreciation deductions with respect to constructed improvements. In addition, interest expenses may also be eligible for deduction.
Tax credits may be available for the construction of improvements on real property, depending on its condition, use, or location, including historic buildings and low-income housing, and opportunity zones. Tax increment financing may also be available, under which municipalities may grant property tax exemptions to landowners of up to 100% of the tax increment for a fixed period. District improvement financing is another economic tool and allows municipalities to pledge all or a portion of tax increments to fund district improvements over time.
See above, 1.3 Impact of New US Tax Law Changes.