[HISTORY: Adopted by the Town Council of the Town of Barnstable 10-17-2013 by Order No. 2013-166. Amendments noted where applicable.]
Unsecured and unmaintained vacant properties and foreclosing properties present a danger to the safety and welfare of public safety officers, the public, occupants and abutters, contribute to blight within neighborhoods and commercial areas, and, as such, constitute a public nuisance. This chapter is enacted to promote the health, safety and welfare of the public, to protect and preserve the quiet enjoyment of occupants, abutters and neighborhoods, and to minimize hazards to public safety personnel inspecting or entering such properties.
The following words and phrases, when used in this chapter, shall have the following meanings:
- FIRE CHIEF
- The Fire Chief of the Fire District in which any property subject to this chapter is located, or his or her designee.
- The process by which a property, placed as security for a real estate loan, is prepared for sale to satisfy the debt if the borrower defaults.
- INITIATION OF THE FORECLOSURE PROCESS
- Taking any of the following actions:
- A. Taking possession of a residential property pursuant to MGL c. 244, § 1.
- B. Commencing a foreclosure action on a property in any court of competent jurisdiction, including, without limitation, filing a complaint in Land Court under the Service Members Civil Relief Act, Public Law 108-189 (50 U.S.C. App. §§ 501-596).
- C. In any instance, where the mortgage authorizes the mortgagee entry to make repairs upon the mortgagor's failure to do so.
- Keeping property in good sanitary condition and repair, including, without limitation the following: securing the property by locking and boarding of buildings; draining or covering swimming pools and fencing the immediate areas surrounding swimming pools; and removal from the property of perishable food items, dangerous substances or chemicals, animal litter, debris, trash, indoor items, such as furniture, appliances, plumbing fixtures and bedding, not kept in a building, and snow from adjacent sidewalks.
- The creditor, including, but not limited to, service companies, agents, lenders in a mortgage agreement, and any successor in interest and/or assignee of the mortgagee's rights, interests or obligations under the mortgage agreement.
- Every person, entity, service company, property manager or real estate broker who or which, alone or severally with others:
- A. Has legal title to any real property, including but not limited to a dwelling, dwelling unit, mobile dwelling unit, or parcel of land, vacant or otherwise, including a mobile home park; or
- B. Has care, charge or control of real property, including but not limited to any dwelling, dwelling unit, mobile dwelling unit, or parcel of land, vacant or otherwise, including a mobile home park, or any administrator, administratrix, executor, trustee or guardian of the estate of the holder of legal title; or
- C. Is a mortgagee of any such property who has initiated the foreclosure process as defined in this chapter; or
- D. Is an agent, trustee or other person appointed by the courts and vested with possession or control of any such property; or
- E. Is an officer or trustee of the association of unit owners of a condominium. Each such person is bound to comply with the provisions of these minimum standards as if he were the owner. However, "owner" shall not mean a condominium association created pursuant to MGL c. 183A to the extent that such association forecloses on or initiates the foreclosure process for unpaid assessments due or owing to the association; or
- F. Operates a rooming house; or
- G. Is a trustee who holds, owns or controls mortgage loans for mortgage-backed securities transactions and has initiated the foreclosure process.
- Any real property, or portion thereof, located in the Town, including municipally owned and commercial properties, and buildings or structures situated on the property; provided, however, that "property" shall not include property owned or under the control of the commonwealth or the United States of America.
- Any property not currently legally occupied and not properly maintained and secured, but not including any property unoccupied on a seasonal basis only and properly secured and maintained while so unoccupied.
Any mortgagee of foreclosing property shall, unless exempt from such actions by Massachusetts General Laws, within 15 days of the initiation of the foreclosure process, provide written notification to the Building Commissioner and the Fire Chief of the status of such property, including in such notice the names, addresses, telephone numbers and e-mail addresses of the mortgagee's employees or representatives responsible for conducting the foreclosure, including mortgagee entry to make repairs, and the owner or person in control of the property; the location of the property; whether the property is vacant and, if so, the length of time of the vacancy, both past and estimated for the future, to the best of the owner's or mortgagee's knowledge or belief; and the nature of the contents of the building.
When the Building Commissioner, upon receipt of a complaint or other information and after making inquiries, determines that a property is vacant as defined herein, the Commissioner shall proceed as follows:
If the property is foreclosing or has been foreclosed and the mortgagee has entered to make repairs or exercised any incidents of possession or ownership, including, without limitation, resorting to mortgage provisions for preservation of the property, changing locks, or payment of utilities or taxes, the Commissioner shall require compliance within the time provided in § 224-3, if necessary, and with Subsection B of this § 224-4 within 30 days, unless exempt from such actions by Massachusetts General Laws.
If the property is not foreclosing, or a mortgagee has not become the owner at foreclosure, the Building Commissioner shall then inform the owner of the requirements of Subsection B of this § 224-4 and require that the owner submit a plan within 30 days for bringing the property into compliance with Subsection B within 30 days of submission of the owner's plan, or such additional time as the owner may request and which the Commissioner determines to be reasonable.
Owner or mortgagee responsibilities.
[Amended 10-1-2015 by Order No. 2016-029]
Any owner or mortgagee of a vacant property, having taken ownership or possession as provided in Subsection A(1) of this § 224-4, shall also comply with the following within the time periods set forth in Subsection A:
Register the property as a mortgagee irrespective of entry into ownership or possession as a mortgagee as provided under § 224-3A.
As may be required by the Fire Chief for commercial property, file one set of space utilization floor plans for any buildings on said property with the Fire Chief and one set of said plans with the Building Commissioner and certify space utilization plans as accurate twice annually, in January and July.
Secure all windows and door openings and ensure that the building is secured from all unauthorized entry continuously in accordance with the United States Fire Administration National Arson Prevention Initiative Board Up Procedures or provide twenty-four-hour on-site security personnel on the property.
Post "No Trespassing" signs on the property.
Ensure that structures are maintained in sound condition.
Maintain lawns and shrubs free from excessive overgrowth.
Maintain the property in accordance with the Barnstable Zoning Ordinance, the definition of "maintenance" in this chapter, and any other provision of this chapter; and dispose of trash, debris and pools of stagnant water as provided in Chapter 54 of the Town of Barnstable General Ordinances concerning the maintenance of property.
Maintain all fences around swimming pools or install fences as required by Chapter 210 of the Barnstable General Ordinances and maintain existing fences or install fences around spas.
Provide the Fire Chief and Building Commissioner with the name, local address, telephone number and e-mail address of a responsible person, if different from the person named in the registration under § 224-3A, who can be contacted in case of emergency and cause the name and contact number to be marked on the front of the property as may be required by the Fire Chief or Building Commissioner.
Maintain liability insurance on the property and furnish the Building Commissioner with a copy of said certificate of insurance.
Drain all water from the plumbing between September 15 and June 15 of each calendar year to guard against burst pipes.
A mortgagee of foreclosing property shall additionally provide the following:
Schedule inspections with the Building Commissioner and Health Director, who may at his or her discretion include the Fire Chief, within a reasonable time after notification under Subsection A(1) in order to confirm that the land and the interior of all structures comply with the provisions of this chapter and/or identify the provisions with which the property does not comply and establish a program to bring the property into full compliance; and
Notify the Building Commissioner in writing when the property is sold or transferred.
When required pursuant to this chapter, signs or markings shall be applied on the front of the property, and elsewhere as the Fire Chief or Building Commissioner may require, and shall not be placed over doors, windows or other openings. All signs/markings shall be visible from the street and, when requested by the Fire Chief or Building Commissioner, shall be placed on the sides and rear of the property. Signs/markings shall be a minimum of 24 inches by 24 inches, with lines of two-inch width, and shall have a reflective background or be painted with reflective paint in contrasting colors. Signs/markings shall be applied directly on the surface of the property and shall state the date of posting and the most recent date of inspection by the Fire Chief and Building Commissioner.
Upon satisfactory compliance with the applicable provisions of §§ 224-3 through and including 224-5, the Building Commissioner shall issue a certificate of compliance. Said certificate shall be valid for the length of the vacancy or initiation of foreclosure, foreclosure, and vacancy following foreclosure; provided, however, that the certificate shall be subject to continued compliance with the provisions of this chapter. No owner of a vacant property and no mortgagee required to maintain a foreclosing property as provided in this chapter shall allow said property to become or remain unsecured, or to contain an accumulation of rubbish, or to contain excessive overgrowth, or to have a stagnant pool of water, or otherwise fail to comply with this chapter.
If it appears that any vacant or foreclosing property is unregistered, or unsecured, contains rubbish, or contains excessive overgrowth of vegetation or a stagnant pool or pools of water, the Building Commissioner, upon being informed of such vacant or foreclosing property without a certificate of compliance with this chapter, shall cause notice to issue to the owner, as defined in this chapter, of the status of the property, the requirements to register and secure the property, remove rubbish or overgrowth, abate stagnant pools of water and maintain the property in compliance with this chapter and order said person to obtain a certificate of compliance. If any person fails to comply with said order, the Building Commissioner and agents thereof may commence civil proceedings to obtain injunctive relief or court orders, including recovery of any unreimbursed expenses incurred by the Town to enter the property to inspect, secure and clean the property and remove any pools of stagnant water, together with the costs of the Town's response as a municipal charges lien as provided in MGL c. 40 § 58.
[Amended 10-1-2015 by Order No. 2016-029]
The Building Commissioner may demand reimbursement for the expenses incurred by the Town for actions taken to inspect and secure the property, clean the property, and remove any stagnant pools of water, rubbish, overgrowth of vegetation and snow under a court order obtained pursuant to § 224-7.
The Building Commissioner shall provide the owner or mortgagee with a written statement of all associated costs.
If the owner fails to pay or reimburse the Town within 30 days of the notice of expenses, the Town may, as part of any court order sought pursuant to § 224-6 or by a separate civil action, seek to recover the balance due for reimbursement of its expenses incurred pursuant to this section and establish a lien on the property to be recorded in the Barnstable County Registry of Deeds or Land Registration.
Notices required pursuant to this chapter shall be served in the following manner:
[Added 10-1-2015 by Order No. 2016-029]
The provisions of this chapter are severable. If any provision shall be held to be invalid or unconstitutional by any court of competent jurisdiction, the remaining provisions shall remain in full force and effect.
Editor's Note: This order also repealed former § 224-10, Review of provisions.