Notices

760 CMR 64.03 contains procedures for the giving of Notices by the Owner. (1) The following categories of notice (each a Notice) to be given by the Owner are governed by 760 CMR 64.03: (a) notice of the future Termination of an Affordability Restriction affecting Publicly-assisted Housing, as required by M.G.L. c. 40T, § 2(a) (a Notice of Future Termination). Where more than one Termination may occur, the Owner may send one written notice so long as the Terminations are scheduled to occur within one year of each other, the notice is given at least two years prior to the earliest termination, and the notice otherwise complies with 760 CMR 64.03. (b) notice of the Owner's intent to complete the Termination of an Affordability Restriction affecting Publicly-assisted Housing or that such Termination will occur without action by the Owner, as required by M.G.L. c. 40T, § 2(b) (a Notice of Intent to Complete Termination). (c) notice of the Owner's intent to pursue a potential Sale of Publicly-assisted Housing, and its offer to sell such Publicly-assisted Housing to the Department or its Designee, as required by M.G.L. c. 40T, § 2(c) (an Offer to Sell). (d) notice of the Owner's intent to pursue a potential sale to a Preservation Purchaser (a Notice of Intent to Sell to a Preservation Purchaser). (2) Forms of Notices. (a) Each notice shall state: 1. the address of the Publicly-assisted Housing; 2. the name and address of the Owner and project sponsor, and the name, address, phone number, and email of the Owner's designated contact person; 3. a. the Government Program that is the basis of each Affordability Restriction(s) that may Terminate in regard to 760 CMR 64.03(1)(a) and (b) and 760 CMR 64.03(4)(e) and the number of units that would be affected by the Termination; or b. the Government Program that is the basis of each Affordability Restriction(s) affecting the Publically-assisted Housing in regard to 760 CMR 64.03(1)(c) and (d). 4. such other information requested by the Departmentin regard to all notices, as set forth in administrative guidance issued by the Department; and 5. information specific to the type of Notice, as set forth in administrative guidance issued by the Department. (b) Use of a current form of Notice issued by the Department shall satisfy the requirements of 760 CMR 64.03(2) if accurate and complete. (3) Delivery of Notices. (a) The Owner shall provide any Notice to: 1. all Tenants; and 2. all Institutional Recipients. The envelope of any Notice provided to Institutional Recipients shall state, in 12 point all caps letters, "ATTENTION: CHAPTER 40T NOTICE." (b) Notices shall be delivered as provided in M.G.L. c. 40T, § 2(d). The Owner shall maintain a record of all Notices delivered, including the date and manner of delivery. The Owner shall make such record available to the Department upon request. (4) Timing of Notices. (a) A Notice of Future Termination shall be delivered not less than two years and not more than three years before the Termination of an Affordability Restriction affecting Publicly-assisted Housing. (b) A Notice of Intent to Complete Termination shall be delivered not less than one year and not more than 18 months before Termination of an Affordability Restriction affecting Publicly-assisted Housing. (c) A Notice of Intent to Sell to a Preservation Purchaser shall be delivered prior to the Owner entering into any Purchase Contract with a prospective Preservation Purchaser. A Notice of Intent to Sell to a Preservation Purchaser shall remain in effect until the first of the following to occur: 1. rescission by the owner with notice to all parties entitled to receive the Notice of Intent to Sell to a Preservation Purchaser, which shall be required before an Owner who has issued a Notice of Intent to Sell to a Preservation Purchaser may issue an Offer to Sell in regard to the Publicly-assisted Housing, 2. a Final Certificate of Exemption certificate is issued for a Sale to A Preservation Purchaser in regard to the Publicly-assisted Housing, or 3. 18 months from the date of the receipt of the Notice of Intent to Sell to a Preservation Purchaser by the Department. (d) An Offer to Sell shall be delivered prior to the Owner entering into any Purchase Contract with a prospective Purchaser, relating to a proposed Sale of Publicly-assisted Housing unless the Owner has delivered a Notice of Intent to Sell to a Preservation Purchaser. Once an Owner has delivered an Offer to Sell to the Department, the Owner may not rescind the Offer to Sell other than pursuant to a determination by the Department that: 1. the proposed transaction meets the requirements of a Sale to a Preservation Purchaser and that rescission will cause no substantial harm to the interests protected by M.G.L. c. 40T and 760 CMR 64.00; and 2. not less than six months have passed since the last date on which an offer, to purchase by a Designee pursuant to M.G.L. c. 40T, § 3, could have been made. (e) If Publicly-assisted Housing is subject to a project-based contract under § 8 of the U.S. Housing Act of 1937 or another Affordability Restriction relating to rental assistance which by its terms is renewed upon intervals of less than two years and the owner can demonstrate reasonable and diligent action to renew the Affordability Restriction then, pursuant to administrative guidance, the Department may authorize an alternative form of notice to tenants in lieu of a Notice of Future Termination or a Notice of Intent to Complete Termination. In the event that the subsidizing agency denies or fails to renew a Subsidy, and such denial or failure is not due to the Owner's failure to comply with applicable program requirements, such alternative notice shall be considered equivalent to timely service of a Notice of Future Termination and Notice of Intent to Complete Termination in accordance with 760 CMR 64.03. (f) If the Owner determines not to renew a subsidy subject to 760 CMR 64.03(4)(e), or otherwise fails to comply with the requirements of 760 CMR 64.03(4)(e), the Owner shall provide a timely Notice of Future Termination and Notice of Intent to Complete Termination. (5) Defective Notice. (a) If an Owner failed to give a Notice in a timely manner, or if the content or delivery of a Notice was defective (a Notice given in each of these circumstances constituting a "Defective Notice'' for purposes of 760 CMR 64.03), then the Owner shall give proper curative Notice in accordance with the requirements set forth in 760 CMR 64.03(5) (Curative Notice) and such guidance as the Department may issue. The Department shall not issue any Certificate of Exemption, 760 CMR 64.07, or Certificate of Compliance, 760 CMR 64.08, in regard to Publically-assisted Housing until any failure to provide a Notice or any Defective Notice in regard to such property has either been cured, or found by the Department to be a de minimis defect, or found by the Department not to be defective, in each case in accordance with 760 CMR 64.03(5). (b) Curative Notice shall not be required in the event of a de minimis defect in a Notice that caused no substantial harm to the interests protected by M.G.L. c. 40T and 760 CMR 64.00 as determined by the Department. An owner may request in writing a determination by the Department that a Notice is sufficient, that defects in such Notice (if any) are de minimus, and that no curative notice is required. (c) If a Curative Notice is delivered less than two years before a Termination in the case of a Notice of Future Termination or less than one year before a Termination in the case of a Notice of Intent to Complete Termination, such Curative Notice shall have the effect of extending any time period set forth in M.G.L. c. 40T or 760 CMR 64.00 as effective from the date of the Curative Notice (the Extended Time Period). (d) Extended Time Period Required. 1. In giving Curative Notice when an Extended Time Period is required, the Owner shall be required to demonstrate reasonable and diligent action to extend the Termination date of an Affordability Restriction pertaining to the Defective Notice for the Extended Time Period. Where such Affordability Restriction expires by its own terms and the Owner does not have the power to extend it or, after taking reasonable and diligent action, cannot extend it for the Extended Time Period, the Owner shall be bound to continue the effect of the Affordability Restriction for the Extended Time Period pursuant to a Curative Equivalent Affordability Restriction. 2. Before the Curative Notice is accepted as complete and compliant by the Department, the Owner shall enter into a Curative Equivalent Affordability Restriction for the Extended Time Period, notwithstanding the expiration of the Subsidy. The Department may provide in guidance standardized terms for Curative Equivalent Affordability Restrictions. (e) The Department shall determine the effectiveness of any Curative Notice for an Offer to Sell or a Notice of Intent to Sell to a Preservation Purchaser based upon the facts and circumstances and the effectiveness of the curative undertakings agreed to by the Owner in such Notice to achieve the purposes of M.G.L. c. 40T and 760 CMR 64.00.