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August 11, 2008

Floor Area Ratio and Residential Property

Floor Area Ratio has longed been used as a way regulate building density under zoning laws.  The owner of the property can choose to build a short building on most of the property or a taller building on less of the property.

Although Floor Area Ratio has been used to regulate commercial properties, there was some uncertainty as to whether you could use it for single family residential property in Massachusetts. Floor Area Ratio restrictions is one way to limit McMansions.

In the case of 81 Spooner Road LLC v. Town of Brookline (SJC-10104), the Massachusetts Supreme Judicial Court ruled that towns and cities can use Floor Area Ratio to regulate the density of single-family residential properties.

The uncertainty comes from M.G.L. c.40A, §3 that provides in part:

 ”No zoning ordinance or by-law shall regulate or restrict the interior area of a single family residential building . . . provided, however, that such . . . structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. . . .”

A property owner challenged the Town of Brookline’s imposition of a 0.3 Floor Area Ratio on a single family house the owner proposed to build on a vacant lot.

The Massachusetts Supreme Judicial Court ruled in part:

“that regulation of single-family residences pursuant to the authority in the proviso of G. L. c. 40A, § 3, second par., including bulk regulation by floor-to-area ratio, is a proper exercise of the zoning power, provided the effect of such regulation on the interior area of such structures is incidental.  Although the town’s bylaw requires consideration of gross floor area of single-family residences for purposes of calculating floor-to-area ratio, this is not a prohibited direct regulation of interior area.  Its effect is only incidental.”

It looks like Massachusetts cities and towns can use Floor Area Ratio to limit McMansions from sprouting up, with over-sized houses growing in existing neighborhoods.

Disclaimers

August 8, 2008

Massachusetts City and Town ByLaws

Here is collection of bylaws and ordinances available online for Massachusetts:

Abington
Acton
Adams
Agawam
Amesbury (Zoning)
Amherst
Andover
Arlington
Ashburnham
Ashby
Ashby (Zoning)
Ashland
Attleboro (Zoning)
Auburn
Barnstable
Barnstable (Zoning)
Barre
Becket
Becket (Zoning)
Bedford
Bedford (Zoning)
Belchertown
Bellingham
Bellingham (Zoning)
Belmont
Belmont (Zoning)
Billerica
Billerica (Zoning)
Blackstone (Zoning)
Bolton
Boston
Boston (Zoning)
Bourne
Bourne (Zoning)
Boxborough
Boxborough (Zoning)
Boxford
Boxford (Zoning)
Brewster
Brewster (Zoning)
Bridgewater (Zoning)
Brookline
Burlington
Burlington (Zoning)
Cambridge
Canton
Canton (Zoning)
Carlisle
Carver
Carver (Zoning)
Charlton
Charlton (Zoning)
Chatham
Chelmsford
Chelsea
Chelsea (Zoning)
Chester (Zoning)
Chicopee
Chilmark
Clinton
Cohasset
Concord
Concord (Zoning)
Cummington
Cummington (Zoning)
Danvers
Dartmouth
Dartmouth (Wetland)
Dartmouth (Zoning)
Dedham
Deerfield
Dennis
Dighton
Douglas
Dover
Dudley
Dunstable
Dunstable (Zoning)
Duxbury
Eastham (Zoning)
Easton (Zoning)
Essex
Everett
Fairhaven (Zoning)
Fall River
Falmouth
Fitchburg
Foxborough (Zoning)
Framingham
Framingham (Zoning)
Franklin
Gardner (Zoning)
Gill
Gill (Zoning)
Georgetown
Gloucester
Gloucester (Zoning)
Goshen (Zoning)
Grafton (Zoning)
Great Barrington
Great Barrington (Zoning)
Greenfield (Zoning)
Groton

Hamilton (Zoning)
Hampden
Hampden (Zoning)
Hanover
Hanover (Zoning)
Hanson
Hanson (Zoning)
Harvard
Hatfield
Haverhill
Hingham
Holden
Holland
Holliston
Holyoke
Hopedale
Hopkinton
Hudson
Hull (Zoning)
Ipswich (Zoning)
Kingston
Kingston (Zoning)
Lancaster (Zoning)
Lanesborough (Zoning)
Lee (Zoning)
Lenox
Leominster
Lexington
Lincoln
Littleton
Longmeadow
Lowell (Zoning)
Ludlow
Ludlow (Zoning)
Lynnfield (Zoning)
Malden
Manchester-by-the Sea
Manchester-by-the-Sea (Zoning)
Marblehead
Marion
Marlborough (Zoning)
Marshfield
Mashpee
Mashpee (Zoning)
Mattapoisett
Maynard
Maynard (Zoning)
Medfield
Medford
Medway
Medway (Zoning)
Melrose
Mendon
Middleton
Milford (Zoning)
Millbury
Millbury (Zoning)
Millis
Millis (Zoning)
Millville
Milton (Zoning)
Monson (Zoning)
Montague (Zoning)
Nahant
Nantucket
Natick
Natick (Zoning)
Needham
New Bedford
New Bedford (Zoning)
New Marlborough
Newbury
Newbury (Zoning)
Newburyport
Newton
Norfolk
North Andover
North Andover (Zoning)
North Attleborough
North Reading (Zoning)
Northampton
Northborough
Northborough (Zoning)
Northbridge
Northbridge (Zoning)
Northfield
Norwell (Zoning)
Norwood
Norwood (Zoning)
Oak Bluffs (Zoning)
Orange
Orleans
Otis
Palmer
Palmer (Zoning)
Paxton
Peabody
Peabody (Zoning)
Pelham
Pepperell (Zoning)
Petersham
Phillipston
Phillipston (Zoning)
Pittsfield
Plymouth
Plympton
Plympton (Zoning)
Princeton
Princeton (Zoning)
Provincetown

Quincy
Randolph
Raynham (Zoning)
Reading
Rehoboth
Revere
Richmond
Rochester (Zoning)
Rockland
Rockport
Rockport (Zoning)
Rowley
Rowley (Zoning)
Royalston
Salem
Salisbury
Salisbury (Zoning)
Sandwich
Saugus
Scituate
Seekonk
Sharon
Sharon (Zoning)
Sheffield
Sheffield (Zoning)
Shelburne
Shelburne (Zoning)
Sherborn (Zoning)
Shirley (Zoning)
Shrewsbury
Shutesbury (Zoning)
Somerville
Southampton
Southborough
Southborough (Zoning)
Southbridge
Southwick
Spencer
Spencer (Zoning)
Springfield
Sterling
Sterling (Zoning)
Stockbridge
Stockbridge (Zoning)
Stoneham
Stow
Stow (Zoning)
Sturbridge
Sudbury
Sunderland (Zoning)
Sutton
Sutton (Zoning)
Swampscott
Taunton (Zoning)
Templeton
Tewksbury (Zoning)
Tisbury
Tisbury (Zoning)
Tolland
Topsfield
Topsfield (Zoning)
Townsend
Truro
Truro (Zoning)
Tyringham
Upton (Zoning)
Uxbridge
Walpole (Zoning)
Waltham
Wareham
Watertown (Zoning)
Wayland
Wellesley
Wellesley (Zoning)
Wellfleet
Wendell (Zoning)
West Boylston
West Newbury
West Springfield
West Springfield (Zoning)
West Tisbury (Zoning)
Westborough (Zoning)
Westfield
Westfield (Zoning)
Westford
Westminster
Weston
Westwood
Westwood (Zoning)
Weymouth
Wilbraham
Wilbraham (Zoning)
Williamsburg
Williamsburg (Zoning)
Williamstown
Wilmington
Wilmington (Zoning)
Winchendon
Winchester
Winthrop
Woburn
Worcester
Worthington
Wrentham (Zoning)
Yarmouth
Yarmouth (Zoning)

From Massachusetts Law Updates, produced by the Massachusetts Trial Court Libraries: Massachusetts Town and City Bylaws.

Disclaimers

August 4, 2008

New Law Liberalizes REIT Provisions

Last week, President Bush signed the Housing and Economic Recovery Act of 2008 [html] [pdf] into law. You have heard about all of the programs designed to stimulate the housing market and to deal with Fannie Mae and Freddie Mac. Summary of the “Housing and Economic Recovery Act of 2008″ [.pdf] from the Senate Banking Committee.

The Act also contained some changes to the REIT limitations. From Goodwin Procter’s Client Alert, New Law Liberalizes REIT Provisions [.pdf]:

The Act shortens the prohibited transactions safe harbor holding period from four years to two. Unless the safe harbor applies, a REIT is potentially subject to a tax equal to 100% of the net income derived from a prohibited transaction (i.e., a sale of property held primarily for sale to customers in the ordinary course of business, or “dealer property”). The prohibited transaction safe harbor used to apply to a sale of real property if, among other requirements, (i) the REIT held the property for at least four years for the production of rental income, and (ii) the aggregate expenditures made by the REIT during the four-year period preceding the date of sale that were includible in the basis of the property (i.e., capital expenditures) did not exceed 30% of the net selling price of the property. The Act shortens both the minimum holding period under the safe harbor and the period during which the limit on capital expenditures applies from four years to two. This provides REITs with significantly more flexibility to dispose of properties without risk of the 100% tax being imposed, provided the other requirements of the safe harbor are met.

An additional requirement for a sale to qualify for the prohibited transactions safe harbor was that the REIT must not have made more than seven sales of property during the applicable tax year, or, that the aggregate tax bases of the properties sold during the taxable year must not have exceeded 10% of the aggregate tax bases of all of the assets of the REIT as of the beginning of the taxable year. The Act changes the 10% limitation so that a REIT can measure its sales based on either tax basis or fair market value, at the REIT’s annual election. This change also applies to sales made on or after July 31, 2008, although IRS guidance will be required to implement this change for 2008.

The Act increases the REIT asset test limitation with respect to securities of taxable REIT subsidiaries from 20% to 25% of the REIT’s assets.

The Act extends the “related party rent” exception that permits leases between REITs and their TRSs for lodging facilities to qualify as “rents from real property” to cover healthcare facilities. Now, a TRS can rent a healthcare facility from its parent REIT without disqualifying the rents paid to the parent REIT for purposes of the 75% and 95% income tests, provided that the healthcare facility is managed and operated by an independent contractor and not the TRS itself.

The Act broadens the REIT income tests with respect to foreign currency exchange gain. Under existing IRS guidance, certain foreign currency gain was treated as qualified income in certain circumstances. Effective July 31, 2008, certain foreign currency gain attributable to real estate income, real estate assets or to certain indebtedness attributable to the REIT’s real estate assets is excluded from the 75% and 95% income tests, and other passive foreign currency gain is excluded from the 95% income test.

Disclaimers

July 31, 2008

Office Building Classifications

I was poking around for a definition of Class A buildings and had a hard time finding a solid definition.

In BOMA’s Building Class Definitions, buildings are grouped into Class A, Class B and Class C. But BOMA does not recommend the publishing of a classification rating for individual properties.

Metropolitan Base Definitions

Class A. Most prestigious buildings competing for premier office users with rents above average for the area. Buildings have high quality standard finishes, state of the art systems, exceptional accessibility and a definite market presence.

Class B. Buildings competing for a wide range of users with rents in the average range for the area. Building finishes are fair to good for the area. Building finishes are fair to good for the area and systems are adequate, but the building does not compete with Class A at the same price.

Class C. Buildings competing for tenants requiring functional space at rents below the average for the area.

BOMA goes further with International definitions:

International Base Definitions

Investment. Investment quality properties are those that are unique in their location in the best metropolitan markets in the world, their design and construction quality, the solidity of the tenants and the tenant markets that they serve and the outstanding building management that is responsible for operating and maintaining them. These properties stand out as leaders not only within their own metropolitan areas but also within the international investment community. Investment properties usually contain state of the art mechanical, electrical, life safety, elevator and communications systems. Their finishes are of the highest standards and they often provide the occupants with a mix of amenities – in variety and quality – that is exceptional. Often they house a lead tenant for whom the property is named and usually they are located in a premier metropolitan area. Investment grade properties need not be considered to be “trophy” material but trophy properties are usually investment grade.

Institutional. Institutional grade properties are those of sufficient size and stature that they merit attention by large national or international investors, hence the name. These properties are of good design and construction, although they are rarely monumental in design or the use of construction materials. They are typically large. They may be located in secondary metropolitan areas, but invariably they will have a very stable tenant base.

Speculative. Speculative properties usually will conform to popular design conventions (at the time that they are constructed), but without the use of exceptional materials or construction methods. The design and construction of these properties emphasizes functionality, in contrast with aesthetics or image and the design rarely reflects the image of any particular tenant or occupant. To attract national or international attention, speculative properties must be relatively large, although minimum size requirements are lower for properties located in premier office markets. They are often occupied by multiple tenants.

Of course, Wikipedia has an entry: Wikipedia’s Class A Office Space

Although the US seems to be lacking objective classification of buildings, the Moscow office market has laid out some objective standards for classifying buildings: Office Building Classification. According to the Moscow Office of Jones Lang LaSalle:

The new classification aims to divide the office stock into three classes according to a number of objective criteria. The classification was developed with the participation of professionals from the Construction, Property Management and Office Service industries.  The principal difference of the new classification from the previous one is the division of stock into ?, ?+ and ?- classes. The major difference is also in giving a more structured criteria for modern office building classification. Leading real estate consultants: CB Richard Ellis Noble Gibbons, Colliers International, Cushman and Wakefield, Stiles and Riabokobylko and Jones Lang LaSalle have prepared a new classification of office buildings, dividing modern quality office stock  into 3 classes: A, B+ and B-.

Square Feet started this with his (or her) Guide to Office Building Classifications.

Disclaimers

July 30, 2008

Retail in Russia

In last week’s Wall Street Journal, there was an article on Developers Diversified Realty Corp.’s plan to expand into Russia: Mall Developer Targets Russia.

I found the statistic on retail space to be really interesting.

In Russia, the volume of shopping space per 1,000 inhabitants makes up about 420 square feet, according to Maxim Karbasnikoff, European Director, Russia, at brokerage Jones Lang LaSalle. In contrast, there is 25,758 square feet of shopping space available for every 1,000 people in the U.S.

 It makes me want to head out to the Chestnut Hill Mall and mark off my own 5 feet square of space in the courtyard.

Disclaimers

July 24, 2008

Update for Recording Fees for Multiple Transactions in a Single Document

The Massachusetts Real Estate Bar Association sent me a notice that:

On July 13, 2008, Governor Patrick signed the FY 2009 budget which included outside sections amending Massachusetts General Laws Chapter 262, § 38 and Chapter 44B, § 8 to require additional recording fees for multifunctional documents. The Amendments provide that “when a document includes multiple references to a document or instrument intending or attempting to assign discharge, release, partially release, subordinate or notice any other document or instrument, each reference shall be separately indexed and separately assessed and additional recording fee.”

The intent of the Amendments is eliminate any confusion that may have arisen with respect to recording fees subsequent to the Patriots Resorts Corporation case [71 Mass. App. Ct. 114] and to codify the current practice of most Registries. The practical result is that if a single document discharges a Mortgage, an Assignment of Leases and Rents and a U.C.C., the recording fee will be $225.00, as if it were three separate discharges. The effect of the Amendments is retroactive to eliminate any potential claims for excess recording fees that may have been brought pursuant to the Patriots Resorts Case

 I previously posted on the Patriots Resorts Case [Recording Fees for Multiple Transactions in a Single Document]. After the case, the registries were still trying to charge multiple fees.  Now the legislature has sided with the Registrars.

Disclaimers

July 11, 2008

Twitter and Real Estate

Dick Howe at the Middlesex North Registry of Deeds in Lowell has jumped into Twitter. You can see his page and follow him at http://twitter.com/lowelldeeds. You can also follow me at http://twitter.com/dougcornelius.

Twitter is great way to stay connected people all around the world.

If you are not familiar with Twitter, here is a quick video from Common Craft:

Disclaimers

July 7, 2008

Real Estate Opportunity Fund Performance

Stephane Fitch of Forbes.com put together a sensationalist piece on real estate opportunity funds: The Other Real Estate Disaster.

Fitch puts together some interesting numbers on the extent of holdings by private real estate funds:

They account for one-sixth of $2 trillion in total net assets in private equity, says the London firm Private Equity Intelligence, which tracks the industry. A year ago the most closely studied funds in the U.S. were holding $213 billion in commercial real estate equity, leveraged 70% on average.

Fitch also touches upon some interesting thoughts comparing the performance of private real estate funds against public REIT stocks.

Instead of focusing on these interesting thoughts, Fitch focuses on how the real estate fund performance is a black box revealing little about their current returns.

OF COURSE.

Fitch evidently does not understand the real estate market.

Real estate is a very illiquid asset. The equity value of the commercial real estate may have decreased. (If you compare your real estate to the sales of comparable real estate.) Few funds take on the expense of an annual valuation. But that valuation makes no difference until you sell the real estate. As long as the real estate is throwing off enough income to pay debt and expenses, you can just sit back and own the property.

That is exactly what is happening right now. There are very few commercial properties for sale and even fewer are actually selling. The exception is a property owner with liquidity concerns. Harry Macklowe being the most public case: Harry Macklowe Doesn’t Own Those Seven Buildings Anymore.

The investors in private real estate funds are smart and know what they are getting into. They know they will have to pay fees to the sponsor/manager of the fund. They know their investment is illiquid and that it is investing in illiquid assets. They know some funds will perform well and some funds will perform poorly. They also know that the performance of the fund will not be known for years after they make their first investment in the fund.

That does not mean that private real estate funds are the next real estate disaster.

Thanks to the Deal Junkie for pointing out this story: The Other Real Estate Disaster

Disclaimers

June 30, 2008

Choice of Entity For Real Estate Ownership in Massachusetts

William V. Hovey published his regular column in Massachusetts Lawyer’s Weekly: Choosing the Best Real Estate Holding Entity.

He discussed the entities in this order:

  • Individual
  • Tenants in Common
  • Joint Tenants
  • Tenants by the Entirety
  • Trust – Standard with named beneficiaries
  • Nominee Trust
  • Massachusetts Business Trust
  • Corporation (C corp)
  • Corporation (S corp)
  • General partnership
  • Limited partnership
  • Joint venture
  • Limited liability partnership
  • Limited liability company

This is a good outline of the issues. But I think Mr. Hovey is little off base on a few points.

First, a joint venture is not an holding entity and has no place in the list. Several of the other types are not entities, but they at least ownership choices.

Second, he states that limited partnerships are “likely to be replaced by LLCs and LLPs.” I hate to break it to Mr. Hovey, but LLCs replaced limited partnerships about a decade ago. I rarely see LLPs used for real estate ownership in Massachusetts.

Disclaimers

June 20, 2008

You Can Construct a Sewer Line In Your Private Right of Way

Constructing a sewer line under a preexisting easement which allows for ingress and egress is permissible under Massachusetts General Laws c. 187, § 5.

Massachusetts General Laws c. 187, § 5 provides that the owner of property abutting a private way who has existing rights of ingress and egress upon such way “shall have the right by implication to place, install or construct in, on, along, under and upon said private way or other private way pipes, conduits, manholes and other appurtenances necessary for the transmission of . . . sewer service, provided such facilities do not unreasonable obstruct said private way or other private ways, and provided that such use . . . does not interfere with . . . the existing use by others of such way.”

A driveway easement has been ruled to be a “private way” for purposes of this statute. See Barlow v. Chongris & Sons, Inc. 38 Mass.App.Ct. 297 (1995)

This right applies retroactively to easements granted before the statute was enacted in 1973. See Nantucket Conservation Foundation, Inc. v. Russell Management, Inc. 402 N.E.2d 501 (Mass 1980). The sewer service need not be installed by a public utility service; the private owner may install the necessary pipes and conduits himself. See Robinson v. Bd. Of Health of Chatham, 791 N.E.2d 350 (Mass. App. 2003). This ability to install utilities under a right of way is intended to “reflect the importance of utilities to modern society.” Id. at 354. Thus, § 5, supported by this policy consideration and Massachusetts case law, allows an owner with a right of way to construct a sewer line under the right of way.

Thanks to Lorretta Waitr for her research.

Disclaimers