Real Estate Development in the Time of Coronavirus: Massachusetts – Update 4/28/20

Governor Baker Extends Order Regarding Businesses and Gatherings

On April 28, 2020, Massachusetts Governor Charlie Baker extended his previous order disallowing many businesses to have employees in brick-and-mortar locations and prohibiting gatherings of more than 10 people. The previous order was set to expire on May 4, 2020. The new order will expire on May 18, 2020, unless extended further. There were no changes made to the list of essential businesses that can continue to operate. Businesses that can operate with employees working remotely remain unaffected by the order.  

Supreme Judicial Court Issues Order Modestly Expanding Court Operations

On April 27, 2020, the Massachusetts Supreme Judicial Court (SJC) issued an order further staying most hearings and trials and limiting access to courthouses for another month. The courts will still hold most emergency hearings via telephone and/or videoconference, and limit in-person emergency hearings to those that are necessary. The order continues to delegate to the lower courts a determination of which emergency matters will be heard. For the first time since the courts reduced operations in March, the order also states that each court is to come up with “categories of non-emergency matters that they will attempt to address virtually [. . .] where it is practicable to do so.” This language contemplates an expansion of access to the courts for remote hearings, although how many additional matters the various courts decide to hear remains to be seen. The SJC has created a single webpage that lists all of the lower court orders related to the COVID-19 pandemic. We can expect these courts to list categories of non-emergency matters they will hear in new orders linked on that page over the next few days.

Expanding the SJC’s prior order, all statutes of limitations are now tolled from March 17 through May 31, 2020. All other deadlines set forth in statutes, court rules, standing orders, tracking orders, or guidelines that expired or will expire between March 16 and June 1, 2020 are tolled until June 1, 2020. For deadlines that began to run prior to March 16, 2020, the order provides examples of how to calculate the time that will remain as of June 1, 2020.

Regulations Issued for New Evictions and Foreclosures Law

The Massachusetts Legislature enacted a law last week limiting certain evictions and foreclosures due to the COVID-19 pandemic (Chapter 65 of the Acts of 2020). Our April 21 alert provided an analysis of that law. The law required the Executive Office of Housing and Economic Development to promulgate emergency regulations and forms. The new regulations, issued on April 24, 2020, provide some helpful clarifications, and are largely focused on residential tenancies.

In addition to the regulations, two COVID-19 hardship forms were created to facilitate landlord notification providing reasons for nonpayment in order to avoid reports to a credit agency. One form is for commercial tenants, one is for residential tenants, and links to both are found on the same page as the new regulations. Under the regulations, any residential tenant who requests a COVID-19 hardship form from their landlord must be provided with a copy within five days.   

The regulations do not further define the terms used by the legislature in the law to exclude certain businesses from the commercial tenancy protections, but do adopt the federal Small Business Administration’s size standards in 13 CFR Part 121 as an additional limitation. Commercial tenants taking advantage of the law are also provided with a spreadsheet for calculation of revenue and expenses to submit monthly with their COVID-19 hardship form. The regulations state that if a court finds that a statement in the hardship form is “is fraudulent or contains a material misrepresentation by the tenant,” then late fees can be assessed and a credit agency report can be filed.

New Massachusetts Department of Environmental Protection COVID-19 Resource

The Massachusetts Department of Environmental Protection continues to operate remotely while its offices are closed due to the COVID-19 pandemic. MassDEP created a new resource that provides program guidance and additional information about which staff members to contact for various categories of activity. We recently learned that it is MassDEP’s position that no legislation or executive order has tolled the ten-day appeal period for an appeal from a conservation commission order to MassDEP set out in the Wetlands Act (Mass. Gen. Laws c. 131, s. 40). However, it appears that the statutory appeal period should be tolled by the SJC’s April 27, 2020 order described above. This nuance highlights the importance of communicating with MassDEP staff and closely following any issued guidance if you are presently proceeding with permitting.

Electronic Filing with DALA and HAC and Electronic Signatures of Municipal Boards

The movement away from requiring paper filings and wet ink signatures continues to expand as the COVID-19 state of emergency stretches on. The Division of Administrative Law Appeals is now allowing electronic filings, and procedures for doing so can be found here. Electronic service on the opposing party is also allowed.

The Housing Appeals Committee has also issued new rules regarding electronic filing. In addition to the use of a dedicated email address for filing, the rules allow use of an electronic signature on filings. The HAC also amended the service rules to allow service by email. Click here for a link to the HAC orders and rule changes.   

The Massachusetts Registers and Assistant Registers of Deeds Association adopted a new deed indexing standard allowing municipal boards that follow a particular procedure to sign permits or compliance documents electronically. A link to the new standard is here. However, the Land Court issued a memorandum, linked here stating that documents signed according to this procedure will not be accepted for registered land.  

Remote Notarization Bill Signed by the Governor

On April 27, 2020, Governor Baker signed a remote notarization bill allowing real estate document notarization through videoconferencing technology. A summary of the bill can be found here.  

For questions on these orders, or any other real estate development issue, please contact Dan Bailey, Paula Devereaux, Don Pinto, or Gareth Orsmond.