[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:
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.
Taking any of the following actions:
Taking possession of a residential property pursuant to MGL
c. 244, § 1.
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).
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:
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
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
Is a mortgagee of any such property who has initiated the foreclosure
process as defined in this chapter; or
Is an agent, trustee or other person appointed by the courts
and vested with possession or control of any such property; or
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
Operates a rooming house; or
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.
A.
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.
A.
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:
(1)
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.
(2)
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.
B.
Owner or mortgagee responsibilities.
[Amended 10-1-2015 by Order No. 2016-029]
(1)
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:
(a)
Register the property as a mortgagee irrespective of entry into ownership or possession as a mortgagee as provided under § 224-3A.
(b)
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.
(c)
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.
(d)
Post "No Trespassing" signs on the property.
(e)
Ensure that structures are maintained in sound condition.
(f)
Maintain lawns and shrubs free from excessive overgrowth.
(g)
Maintain the property in accordance with the Barnstable Zoning
Ordinance,[1] 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.
(h)
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.
(i)
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.
(j)
Maintain liability insurance on the property and furnish the
Building Commissioner with a copy of said certificate of insurance.
(k)
Drain all water from the plumbing between September 15 and June
15 of each calendar year to guard against burst pipes.
(2)
A mortgagee of foreclosing property shall additionally provide the
following:
(a)
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
(b)
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.
A.
The Building Commissioner shall provide the owner or mortgagee with
a written statement of all associated costs.
B.
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.
[Added 10-1-2015 by Order
No. 2016-029[1]]
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.
[1]
Editor's Note: This order also repealed former § 224-10,
Review of provisions.
