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  • Ben Kaplan

Legislative Committee Expands Equity Theft Bill

Redraft Adds "Excess Equity" Definition, Holding Requirements

STATE HOUSE, BOSTON, MAY 8, 2024.....Homeowners whose properties are seized by a town or city for nonpayment of taxes would be able to recoup the "excess equity" after the municipality has satisfied their tax debt, under a redrafted bill advanced by the joint legislative committee that handles tax policy.

Currently, a municipality can keep the entire sale profit after it seizes a property and sells it to pay an outstanding tax bill.

"When we look at home ownership as one of the key elements in generational wealth, we want to be sure that a period of tough financial times doesn't rob those individuals of that opportunity," said Joint Committee on Revenue Co-chair Sen. Susan Moran.

The committee voted to recommend the new bill on April 30, and it was crafted with the goals of ensuring "property owners didn't have their equity stolen" through "as streamlined as possible" a process, Moran told the News Service on Wednesday.

The new language was crafted after consulting with stakeholders like the Land Court, Trial Court, Mass. Municipal Association, and Greater Boston Legal Services, Moran said. 

Described by proponents as a longtime issue, calls for correction have received more attention this session between relevant court rulings and a series of floor speeches by South Coast Sen. Mark Montigny.

Moran said she "never ... imagine[d] that the municipalities kept the equity" after a home was seized and a debt paid."Because in all the consumer work that I did, or with respect to mortgages ... the individuals who owed the debt were able to retain their equity. So I was not familiar that with municipal foreclosures, the municipality actually kept all of that equity. And I felt that it was incredibly unfair," said the Falmouth Democrat, a lawyer and former Falmouth Select Board chair.

Two court decisions -- last year in the U.S. Supreme Court, and this spring in the Hampden County Superior Court -- found the practice unconstitutional. Supreme Court Chief Justice John Roberts, writing a unanimous decision about a similar Minnesota law, said that "[a] taxpayer who loses her $40,000 house to the State to fulfill a $15,000 tax debt has made a far greater contribution to the public fisc than she owed."

The state ruling by Superior Court Judge Michael Callan in April directly called on the Legislature to make a "correction" to the present "untenable" law.

"We have known for many years that this is the morally right thing to do. And the court decisions confirm that it's also the legally right thing to do, and it is what the law requires and fairness requires," Sen. Bruce Tarr told the News Service. The Gloucester Republican authored one of the bills that was folded into the redraft, and said he had filed similar language in prior sessions either as amendments or standalone legislation.

Now, with both federal and state courts weighing in on the matter this term, Tarr said on Wednesday that "this is the moment for this bill to pass."

The committee bill would introduce a definition of "excess equity" into state law -- what Tarr referred to as the "delta" between a homeowner's equity and the amount of money they owe to a municipality. The current law governing municipal tax lien foreclosures, known as Chapter 60, does not have any such definition, according to a summary of the new bill.

The legislation would stipulate that "the entry of a judgment of foreclosure of the right of redemption will not impair or limit the right of the owner of the land at the time of foreclosure ... to receive any excess equity," according to the bill summary provided by Moran's office. And it lays out a process, not contemplated under current law, for the former owner to recoup that excess.

Excess equity would be required to be held in an interest-bearing escrow account, the summary said, and a municipality or purchaser of tax receivables would have 14 days after judgment and sale to inform the former owner how much excess exists.

Debt payment plan agreements between a municipality and a taxpayer could span up to 10 years under the bill, as opposed to the five-year maximum term under Chapter 60. And the minimum downpayment on a payment agreement would drop to 10 percent of "the amount needed to redeem the property," down from the current 25 percent minimum payment. A municipality would have to list the property for sale within 120 days of final Land Court judgment, according to the summary, and the bill "removes a custodian's ability to lease a property for 3 years."

The bill also contains sections boosting notice requirements to homeowners related to takings for nonpayment of taxes, along with required inclusion of notices in the state's seven most common languages. And it would create a commission to study how municipalities collect past-due property taxes, with representatives of the Legislature, Executive Branch, Judiciary, Attorney General's Office, Mass. Municipal Association, Mass. Collectors and Treasurers Association, third-party purchasers, and property owners' rights.

The redraft drew on proposals filed by eight lawmakers this term, including three from the House and five from the Senate: bills filed by Rep. Jeffrey Roy (H 2937), Rep. John Mahoney (H 2883), Rep. Tram Nguyen (H 2907), Sen. Cynthia Stone Creem (S 1774), Sen. Lydia Edwards (S 1794), Montigny (S 1876), Tarr (S 1953), and Sen. Joanne Comerford (S 921).

A majority of the committee voted to give a favorable report to the new text, according to an aide, who did not provide an exact tally. The redraft has not yet received a bill number as the paperwork has not been completed, the aide said.

Montigny has said he would pursue equity theft legislation through a variety of means, and his office said Wednesday that he had filed an amendment on that topic to the fiscal 2025 budget, which the Senate is set to debate starting Monday, May 20.

"The courts have told us our law is noncompliant," Tarr said. "Now it's up to us to act."

-END- by Sam Doran

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