50 ESSEX STREET - BUILDING JACKET 50 ESSEX STREET . -
i
eco r� CITY OF SALEM9 MASSACHUSETTS
PUBLIC PROPERTY DEPARTMENT
120 WASHINGTON STREET, 3RD FLOOR
I'1SALEM, MA 01970
TEL. (978) 745-9595 EXT. 380
FAX (978) 740-9846
STANLEY J. USOVICZ, JR. PETER STROUT, DIRECTOR OF PUBLIC PROPERTY
MAYOR
October 24, 2001
Armand Blair
2 Madeline Avenue
Salem, Ma. 01970
Re: 59 Essex Street
Dear Mr. Blair:
It has been brought to my attention due to several neighborhood complaints that
construction debris have been falling into the abutting properties.
Please be advised that during construction you are liable to proceed with safety and
caution.
If this continues, action will be taken by this department
Sincere ,
Peter Strout
Building Commissioner
Citp of Salem' Aamwbuottg
Public Propertp Department
jguilbing ]Department
One balem Oreen
(978) 745.9595 &t. 360
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
May 21 , 1998
Philip Singleton
12 Charring Cross Lane
Lynnfield, Mass . 01940
RE : 50 Essex Street
Dear Mr . Singleton:
The City of Salem Legal Department has directed me to
re-instate Certificates of Occupancy for 50 Essex Street,
179-97 , Unit 4 now known as 10 Forrester Street .
Please refer all questions concerning this matter
with the City of Salem Legal Department .
Sincerely,
Leo E . Tremblay
Inspector of Buildings
LET: scm
cc : William Lundregan, City Solicitor
Jane Guy, Planning Department
Councillor Paskowski , Ward 1
Attorney John Keilty
THOMAS J. BARRETT, P.C.
COUNSELOR AT LAW
314 ESSEX STREET
SALEM, MASSACHUSETTS 01970
FAX: (978) 741-9958 (978) 745-0745
April 30, 1998
VIA Hand Delivery
Mr. John Keenan
Assistant City Solicitor
15 Church Street
Salem, MA 01970
Re: Meryl Longval v. City of Salem and Philip S. Singleton, Trustee of East
Branch Library Trust
Dear Mr. Keenan:
Enclosed please find a copy of a Complaint filed in the Essex Superior Court in regard
to the above matter together with a copy of the Summons and Order of Notice. I am also
directing a copy of this to your attention as someone mentioned that Mr. Lundregan may be
away this week. By separate cover I am sending a copy of these documents to Mr. Lundregan.
If you should have any questions, please do not hesitate to contact me.
Sincer
hT omas J. Barret
TJ B/seb
Enclosure
COMMONWEALTH Or MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
CIVIL ACTION
No. 98-807 D
Mery1..J. Lpngval.......................................................................Plaintiff(s)
V.
City..of_..Salem,..and..Ph*.... 5Singleton,,_______________ Defendants)
Trustee of East Branch Library Trust
SUMMONS AND ORDER OF NOTICE
To the above-named Defendant: s
You are hereby summoned and required to serve upon Thomas J. Barrett, Esquire
plaintiffs attorney, whose address is 314 Essex Street, Salem, MA 01970
an answer to the complaint which is herewith served upon you, within 20 days after service of this summons
upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken against you
for the relief demanded in the complaint. You are also required to file your answer to the complaint in the
orrice of the Clerk of this court at LAWRENCE either before service upon plaintiffs attorney
or within a reasonable time thereafter.
Unless otherwise provided by Rule 13 (a), your answer must state as a counterclaim any claim which
you may have against the plaintiff which arises out of the transaction or occurrence that is the subject matter of
the plaintiffs claim or you will thereafter be barred from making such claim in any other action.
WE ALSO NOTIFY YOU that application has been made in said action, as appears in the complaint,
for a preliminary injunction and that a hearing upon such application will be held at the court house at said
Lawrence Superior Court in the "D" session without jury of our said court on Tuesday,
the 5th day of May A. D. 19 98 , at 9:00 A.M. t*AtFk#1*?Kt,
at which you may appear and show cause why such application should not be granted.
Witness, Robert A. Mulligan, Esquire, at Salem, the
28th day of April , in the year of our Lord
one thousand nine hundred and ninety- ht.
Clerk.
NOTES
I This summons is issued pursuant to Rule 4 of the Massachusetts Rules of Civil Procedure.
_. µ'.len more than one defendant is involved, the names of all defendants should appear in the caption. If a separate
summons is used for each defendant,each should be addressed to the particular defendant.
I
it
.i
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
NO. 98 080'7
MERYL J. LONGVAL, )
Plaintiff )
v. )
CITY OF SALEM and )
PHILIP S. SINGLETON, TRUSTEE )
OF EAST BRANCH LIBRARY TRUST, )
Defendant )
MOTION FOR APPOINTMENT
OF SPECIAL PROCESS SERVER
Now comes the Plaintiff in the above entitled matter and pursuant
to Mass Rules of Civil Procedure Rule 4(c) moves that this Honorable
Court appoint Richard Lombara to serve speciall/y for se
ry/ice of process
in this matter. :)I•. �. r S !F /,, process
y 4-e y/, p n A,
` J April 28, 1998 Respectfully submitted
r
L Meryl J. Lon;val
by her attorney,
Thoma J. Barrett
BBO No. 030960;
ti 314 Essex Street
_ v -i-
_ — Salem, Massachusetts 01970
T (978)745-0745
RUE CCpY( ATTES1j
Trial Court of Massachusetts DOCKET NUMBER
CIVIL ACTION COVER SHEET SUPERIOR COURT DEPARTMENT
Essex Division
PLAINTIFF(Si DEFENDANTS)
City of Salem and
Meryl J. Longval Philip S. Singleton, Trustee of East Branc
E ��..II
� Lib ra
r Trust
AVhomas)JIRMB AME.ADDRESS AND TEL.) (978)745-0745 ATTORNEYS)(if known)
Thomas J. Barrett, P.C.
314 Essex Street
odof OseBarrvverers # (Required) 030960
ORIGIN CODE AND TRACK DESIGNATION
Place an ® in one box only:
�j 1. F01 Original Complaint ❑ 4. F04 District Ct. Appeal c231, s. 97 (X)
❑ 2. F02 Removal to Sup. Ct. c231, S. 104 (F) ❑ 5. F05 Reactivated after Rescript; Relief from
❑ 3. F03 Retransfer to Sup. Ct. c231, S. 102C (X) judgment/order (Mass. R Civ. P. 60 (X)
❑ 6. E10 Summary process appeal (X)
TYPE OF ACTION AND TRACK DESIGNATION (See Reverse Side)
CODE NO. TYPE OF ACTION (specify) TRACK IS THIS A JURY CASE?
D99 Preliminary Injunction ( F) ❑ Yes KI No
1. PLEASE GIVE A CONCISE STATEMENT OF THE FACTS: (Required in ALL Types of Actions)
Plaintiff executed a Purchase and Sale Agreement for a condominium unit in Salem and when
approaching the performance date discovered that the City of Salem had withdrawn the
Certificate of Occupancy for said unit and forbad the local Fire Department from issuing a
Smoke Detector Certificate while a controversy ensued between the Defendant City and the
Defendant Developer, jeopardizing the Plaintiff and her purchase of the unit and her mortgagr
commitment.
2. IN A CONTRACT ACTION (CODE A) OR A TORT ACTION (CODE B) STATE, WITH PARTICULARITY,
MONEY DAMAGES WHICH WOULD WARRANT A REASONABLE LIKELIHOOD THAT RECOVERY
WOULD EXCEED $25,000:
N/A
3. PLEASE IDENTIFY, BY CASE NUMBER, NAME AND DIVISION, ANY RELATED ACTION PENDING
IN THE SUPERIOR COURT DEPARTMENT.
N/A
SIGNATURE OF ATT OFR D P INTIFF DATE
Y
OFFICE USE ONLY - , . .
DISPOSITION RECEIVED
A. Judgment Entered B. No Judgment Entered BY.
❑ 1. Before jury trial or non-jury hearing ❑ 6. Transferred to District DATE
❑ 2. During jury trial or non-jury hearing Court under G.L. c.231,
3. After jury verdict 5.1020. DISPOSITION ENTERED
LJ 4. After court finding Disposition Date By
After cost tr;31 Mot& CATE
COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss. SUPERIOR COURT
NO.
MERYL J. LONGVAL, )
Plaintiff )
V. )
CITY OF SALEM and )
PHILIP S. SINGLETON, TRUSTEE )
OF EAST BRANCH LIBRARY TRUST, )
Defendant )
i'
VERIFIED COMPLAINT
1. The Plaintiff, Meryl J. Longval, is an individual currently residing at
34 Falmouth Street, Belmont, Massachusetts, Middlesex County, Massachusetts
(hereinafter referred as "Longval").
2. The Defendant, City of Salem, is a Municipal Corporation duly
organized and existing under the laws of the Commonwealth of Massachusetts
(hereafter referred as "City").
3. The Defendant, Philip S. Singleton, is the Trustee of East Branch
Library Trust, under Declaration of Trust dated February 14, 1997 recorded at Essex
South District Registry of Deeds in Book 13978, Page 421 having an address of 12
Charing Cross, Lynnfield, Massachusetts 01940 (hereinafter referred as "Singleton")
4. On or about February 6, 1998 the Plaintiff Longval executed a Purchase
and Sale Agreement with the Defendant Singleton for the purchase of Unit 2 of "The
Bentley" Condominium for $175,000.00. The conveyance was set to take place on
or about March 26, 1998, and a copy of said Purchase and Sale Agreement is hereto
attached and annexed and marked Exhibit "A".
5. The Plaintiff Longval received a mortgage commitment from Ipswich
Savings Bank and said Purchase and Sale Agreement has been extended and is still in
force as of the present date.
6. The Plaintiff Longval is ready, willing and able to purchase and to take
title to said Unit 2 of "The Bentley" Condominium as provided in the Purchase and
Sale Agreement.
7. During the pendency of the Purchase and Sale Agreement and as the
condominium was about to close through an Attorney for Plaintiff's Lender, Ipswich
Savings Bank, the Plaintiff discovered that the City had unilaterally withdrawn a
Certificate of Occupancy for said Unit 2 and another unsold unit which had been
previously issued by the Building Inspector for the City of Salem.
8. Two other Units, Unit 1 and Unit 3 at "The Bentley", have been
previously conveyed to other individuals within the past four months. There are a
total of four units within this single condominium complex.
9. The Plaintiff believes and therefore avers that the Defendant Singleton
received a Deed from the Defendant City through its then mayor on February 19,
1997, as recorded at Essex South District Registry of Deeds in Book 13978, Page
424, and a copy of said Deed is hereto attached and annexed and marked Exhibit
"B". A Confirmatory Deed dated March 19, 1997 was recorded at said Deeds in
Book 14021, Page 243, and a copy of said Confirmatory Deed is hereto attached and
annexed and marked Exhibit "C". A second Confirmatory Deed dated April 1, 1997
2
was recorded at said Deeds in Book 14048, Page 490 and a copy of said second
Confirmatory Deed is hereto attached and annexed and marked Exhibit "D".
10. The Plaintiff believes and therefore avers that prior to the execution of
the original Deed dated February 14, 1997 the Defendant Singleton and the Defendant
City executed a document entitled "Deed of Facade Easement" and the same is
recorded at Essex South District Registry of Deeds in Book 13978, Page 427 and a
copy is hereto attached and annexed and marked Exhibit "E" and that on or about
June 20, 1997 an Amendment to the Deed of Facade Easement was executed and later
recorded at said Deeds in Book 14546 Page 130 and a copy of said Amendment is
hereto attached and annexed and marked Exhibit "F".
11. In said Amendment above in Paragraph 3 on page 2 it states, "the
installation of the replacement windows, in the form of vinyl windows, by Philip S.
Singleton, Trustee, shall not be a consideration of the Salem Historical Commission
and shall not be subject to its approval when considering alterations, etc. to the
premises".
12. At the time of the conveyance of Unit 1 the Defendant City executed
a Partial Release of the Performance Mortgage earlier given by the Defendant
Singleton and a copy of said Partial Release dated January 2, 1998 as recorded at said
Deeds in Book 14528, Page 555 is hereto attached and annexed and marked Exhibit
G.,
13. The Plaintiff believes and therefore avers that the Certificate of
Occupancy for said Unit was issued by the Building Inspector for the Defendant City
3
which allowed said conveyance to take place.
14. A Clerk's Certificate as to Violation dated March 19, 1998 was signed
by the Clerk of the Salem Historical Commission with respect to the subject premises,
and though failing to enumerate any specific violations, said Certificate was recorded
at said Deeds in Book 14669, Page 200, a copy of which is hereto attached and
annexed and marked Exhibit "H".
15. A Partial Release of the Performance Mortgage earlier given so as to
allow the conveyance of Unit 2 of the condominium was executed by the Defendant
City through its Chief Executive on March 23, 1998 which was recorded at said
Deeds in Book 14684, Page 124, and a copy of same is hereto attached and annexed
and marked Exhibit "I".
16. The Salem Historical Commission executed a Partial Release of any
interest it acquired by means of the previously referred to Clerk's Certificate as to
Violation (Exhibit "H") and said Partial Release is dated March 23, 1998 and is
recorded at said Deeds in Book 14684, Page 125, a copy of which is hereto attached
and annexed and marked Exhibit "J".
17. By the filing of these Partial Releases and the issuance of a Building
Permit for Unit Three the Defendant City enabled the Defendant Singleton to convey
said property to is current owner, Sharon Perkins.
18. The Plaintiff herein believes and therefore avers that a Certificate of
Occupancy has been previously issued for Unit 2 which she seeks to purchase
pursuant to her Purchase and Sale Agreement but that the Building Inspector for the
4
Defendant City has been ordered to revoke said Certificate of Occupancy.
19. The Plaintiff believes and therefore avers that said action by the
Building Inspector for said Defendant City is without authority and that the premises
in their current condition warrant issuance of or reissuance of a Certificate of
Occupancy.
20. The Plaintiff believes and therefore avers that the Defendant City of
Salem Fire Department has been instructed not to inspect smoke detectors for the
subject unit or issue Certificates of Compliance and that said order is without
authority.
21. The Plaintiff believes and therefore avers that the Defendant Singleton
should be given a Partial Release of the Performance Mortgage and the Certificate as
to Violation and that the Certificate of Occupancy should be redelivered to the
Defendant Singleton and a Smoke Detector Certificate issue upon examination of the
subject premises by the Defendant City of Salem Fire Department so as to permit the
conveyance of Unit 2 to the Plaintiff forthwith.
22. The Plaintiff believes and therefore avers that there may exist a dispute
as to the validity of the Facade Easement and its Amendment and that said dispute
may be resolved hereinafter in litigation between the Defendant Singleton and the
Defendant City but that resolution of said dispute equitably need not and should not
affect the Plaintiff Longval.
23. The Plaintiff believes and therefore avers that her contractual rights
pursuant to the Purchase and Sale Agreement attached hereto as Exhibit "A" as
5
aforesaid are being jeopardized by the unauthorized actions of the Defendant City, by
the inaction of the Defendant Singleton who at the present time appears to be unable
to convey good, clear and marketable title to the Plaintiff Longval.
24. A real emergency exists in that the Plaintiff's mortgage commitment
and rate lock will expire shortly and she will suffer irreparable harm.
WHEREFORE the Plaintiff demands:
1. That an Order of Notice issue against the Defendant City regarding the
issuance of a Preliminary Injunction herein ordering its agents to execute a Partial
i
Release of the Performance Mortgage with respect to Unit 2, a Partial Release of the
Complaint for Violation with respect to Unit 2, redeliver and/or reissue a Certificate
of Occupancy for said Unit 2, allow the Defendant City of Salem Fire Department to
conduct the necessary inspection for the issuance of a Smoke Detector Certificate and
such other and further relief as this Court deems meet and appropriate.
2. Issue an Order of Notice against the Defendant Singleton to perform
pursuant to said Purchase and Sale Agreement and deliver a Deed conveying good,
clear and marketable title to the Plaintiff Longval and to do all things necessary in that
regard.
3. For such other and further relief as this Court deems meet and
appropriate including but not limited to awarding damages to compensate the Plaintiff
for Defendant City's unauthorized actions and damages from the Defendant Singleton
6
to the Plaintiff Longval for his failure to timely convey good, clear and marketable
title pursuant to said Purchase and Sale Agreement and for such other and further
relief as this Court deems meet and appropriate.
1998. Signed and sealed under the pains and penalties of perjury thiday of April,
MeLongval
T s J. Barret
Attorney for Moyl Longval
BBO No. 030960
314 Essex Street
Salem, MA 01970
(978)745-0745
7
FtnIBIT "Ar. From the Office of:
STANDARD FORM CONDOMINIUM
PURCHASE AND SALE AGREEMENT Tache' Associates
This--. '191, day of February _ 19 98
1. PARTIES East Branch Library Realty Trust,Philip S. Singleton, Trustee of Lynnfield,
AND MAILING
ADDRESSES hereinafter called the SELLER,agrees to SELL and
(fill in{ Meryl J. Longval of Belmont, MA
hereinafter called the BUYER or PURCHASER, agrees to BUY, upon the terms hereinafter set forth, the
following described premises:
2. DESCRIPTION Unit No. two. (the"Unit")of "The Bentley" Condominium,
(fill in and include (the "Condominium") created pursuant to Chapter 183A of the Massachusetts General Laws (the "Act") by
title reference) Master Deed dated 1/8 1998 ,and recorded with Essex South Registry of Deeds
at Book 14528 r Page 392(the"Master Deed"),together with(a) an undivided 21 percentage interest
in,both the common areas and facilities of the Condominium and the organization of unit owners through
which the Condominium is managed and regulated, (b) the exclusive right to use the parking space and
storage area, if any, assigned to the Unit and (c) such other rights and easements appurtenant to the Unit
as may be set forth in any document governing the operation of the Condominium,including without limitation
the Master Deed,the By-Laws of the organization of unit owners,and any administrative rules and regulations
adopted pursuant thereto (all of which are hereinafter referred to as the "Condominium Documents'j. The
above described premises are those coveyed to the SELLER by deed dated
ch
19 97 ,and recorded with Essex South: Registry of Deeds Book Page
3. FIXTURES Included in the sale as a part of the-Unit are the fixtures belonging to the SELLER and used in connection
(special provisions, therewith,and * j rbut excluding .The extent to which
if any,re:fixtures, any of such fixtures belong to the SELLER may be governed in part by provisions contained in the
appliances, etc.) Condominium Documents.. *stove, refrigerator, dishwasher, disposal.
4. TITLE DEED Said premises are to be conveyed by a good and sufficient quitclaim deed running to the BUYER, or to the
(fill in) nominee designated by the BUYER by written notice to the SELLER at least seven days
Include here by specific before the deed is to be delivered as herein provided, and said deed shall convey a good and clear
reference any restric- record and marketable title thereto,free from encumbrances,except
tions, easements,rights (a) Provisions of existing building and zoning laws;
and obligations not (b) Such taxes for the then current year as are not due and payable on the date of the delivery
included in(e),leases, of such deed;
municipal and other (c) Any liens for municipal betterments assessed after the date of this agreement
liens,other encum- (d) The provisions of the Act and the Condominium Documents including without limitation all
brances, and make pro- obligations of the unit owners to pay a proportionate share of the common expenses of the
vision to protect Condominium;
SELLER against (e) All restrictions,easements and encumbrances referred to in the Condominium Documents;
BUYER's breach of (f) Easements, restrictions and reservations of record, if any, so long as the same do not prohibit
SELLER's covenants in or materially interfere with the current use of said premises;
leases, where necessary. '(g)
5. PLANS If said deed refers to a plan necessary to be recorded therewith the SELLER shall deliver such plan with the
deed in form adequate for recording or registration.
6. REGISTERED In addition to the foregoing, I the ltle to said premises is registered, said deed shall be in form sufficient
TITLE to entitle the BUYER to a Certificate of Title of said premises, and the SELLER shall deliver with said deed all
instruments,if any,necessary to enable the BUYER to obtain such Certificate of Title.
7. PURCHASE PRICE The agreed purchase price for said premises is .$I j5 X000.00
(fill in);space is One Hundred Seventy Five Thousand dollars,of which
allowed to write
out the amounts $ 8,750.00 have been paid as a deposit this day and
if desired $
$ 166,250.00 are to be paid at the time of delivery of the deed in cash, or by certified,
i
cashier's,treasurer's or bank check(s).
$
$ 175,000.00 TOTAL
I
COPYRIGHT C 1979,1966,1966,1987,1980,1991 All rights reserved.This form may not be copied or reproduced in
GREATER BOSTON REAL ESTATE BOARD whole or in part in any manner whatsoever without the prior ex-
.. press written consent of the Greater Boston Real Estate Board.
Z 0 0 WR'IVS NVW3.10i[1H 90LS S6L 8L6 Y4'd £7 £T IHJ 86/OT/40
z aged .oc•.e d� 9ozg g>_ eL-o ae roars :PanTaoary
8. TIME FOR Such deed is to be delivered at 10 o'clock A. M. on the 26th day of
PERFORMANCE;
DELIVERY OF March 1998 , at the Essex South
DEED (fill in)
Registry of Deeds, unless otherwise agreed upon in writing. It is agreed that time is of the essence of this
agreement.
9. POSSESSION and Full possession of said premises free of all tenants and occupants,except as herein provided, is to be delivered
CONDITION of at the time of the delivery of the deed, said premises to be then (a) in the same condition as they now
PREMISES. are, reasonable use and wear thereof excepted, and (b) not in violation of said building and zoning laws,
(attach a list of and(c)in compliance with the provisions of any instrument referred to in clause 4 hereof.The BUYER shall
exceptions, if any) be entitled to an inspection of the Unit prior to the delivery of the deed in order to determine whether the
condition thereof complies with the terms of this clause.
10. EXTENSION TO If the SELLER shall be unable to give title or to make conveyance,or to deliver possession of the premises,
PERFECT TITLE all as herein stipulated, or It at the time of the delivery of the deed the premises do not conform with the
OR MAKE provisions hereof,then any payments made under this agreement shall be forthwith refunded and all other
PREMISES obligations of the parties hereto shall cease and this agreement shall be void without recourse to the parties
CONFORM hereto,unless the SELLER elects to use reasonable efforts to remove arty defects in tide,or to deliver possession
!Change period of as providedherein,or to make the said premises conform to the provisions hereof, as the case may be, In
time if desired). which event the SELLER shall give written notice thereof to the BUYER at or before the time for performance
hereunder, and thereupon the Ume for performance hereof shall be extended for a period of
thirty days.
11. FAILURE TO If at the expiration of the extended time the SELLER shall have failed so to remove any defects in title,deliver
PERFECT TITLE possession,or make the premises conform,as the case may be,all as herein agreed,or 11 at any time during
OR MAKE the period of this agreement or any extension thereof,the organization of unit owners shall fall to agree,within
PREMISES the time period set forth in the Act,if applicable,to proceed with such repair or restoration as may be necessary
CONFORM, etc. for such purposes,or shall expressly agree not to so proceed,or the holder of a mortgage on the Unit shall
refuse to permit any insurance proceeds to be used for such purpose, then any payments made under this
agreement shall be forthwith refunded.and all other obligations of the parties hereto shall cease and this
agreement shall be void without recourse to the parties hereto.
12. BUYER'S The BUYER shall have the election, at either the original or any extended time for performance,,to accept
ELECTION TO such title as the SELLER can deliver to the said premises in their then condition and to pay therefore the
ACCEPT TITLE purchase price without deduction, in which case the SELLER shall convey such title, except that in the
event of such conveyance in accord with the provisions of this clause,if the said pramises shall have been
damaged by fire or casualty insured against by the organization of unit owners or by the SELLER, then
the SELLER shall,on delivery of the deed,unless said premises have previously been restored to their former
condition,pay over or assign to the BUYER all amounts recovered or recoverable by the SELLER on account
of such insurance,and give the BUYER a credit against the purchase price equal to any amounts otherwise
so recoverable which are retained by the holder of a mortgage on the Unit, less any amounts reasonably
expended by the SELLER for any partial restoration.
13. ACCEPTANCE The acceptance of a deed by the BUYER or his nominee as the case may be, shall be deemed to be a full
OF DEED performance and discharge of every agreement and obligation herein contained or expressed,except such
as are, by the terms hereof, to be performed after the delivery of said deed.
14. USE OF To enable the SELLER to make conveyance as herein provided, the SELLER may, at the time of delivery
PURCHASE of the deed, use the purchase money or any portion thereof to clear the title of any or all encumbrances
MONEY TO or interests,provided that all instrumentssoprocured are recorded simultaneously with the delivery of said
CLEAR TITLE deed. -
15. INSURANCE The SELLER represents that at the time of execution of this agreement, the organization of unit owners
Insert amount maintains insurance with respect to the Condominium as follows:
Type of Insurance Amount of Coverage
(a) Fire _ 5.
fb)Extended coverage Ascurrently insured
(c)
Until the delivery of the deed,the SELLER shall maintain any supplemental insurance now in effect covering
- the Unit itself and any fixtures therein.
16. EVIDENCE OF At the time of the delivery of the deed,the SELLER shall deliver to the BUYER a certificate of the Condominium
INSURANCE insurance referred to in clause 15 as then in effect.The procuring of any supplemental insurance shall be
at the option and sole expense of the BUYER.
EOQ W3'ib'S Nb'W3NN!1F1 . 90LS SfL 9L6 Yb'd 6t :ef RId 36/Ouvo
c a8.d X00 ' lsi,.:as=l c ' 's —
IT ADJUSTMENTS Collected rents, mortgage interest, taxes for the then current fiscal year and common expenses for the then
current month shall be apportioned, as of the day of performance of this agreement and the net amount
thereof shall be added to or deducted from, as the case may be,the purchase price payable by the BUYER
at the,time of delivery of the deed. Uncollected rents for the current rental period shall be apportioned if and
when collected by either party. The conveyance of said premises shall be deemed to include the SELLER's
allocable share of any working capital or other reserve funds held by the organization of unit owners,
without adjustment or payment of any additional consideration by the BUYER.
18. ADJUSTMENT If the amount of said taxes is not known at the time of the delivery of the deed, they shall be apportioned
OF UNASSESSED on the basis of the taxes assessed for the preceding fiscal year,with a reapportionment as soon as the new
AND tax rate and valuation can be ascertained; and, if the taxes which are to be apportioned shall thereafter
ABATED TAXES be reduced by abatement, the amount of such abatement, less the reasonable cost of obtaining the same,
shall be apportioned between the parties, provided.that neither party shall be obligated to institute or
prosecute proceedings for an abatement unless herein otherwise agreed
19. BROKER's FEE A Broker's fee for professional services of $4,375.00 to Hunneman, Salem
(fill in fee with is due from the SELLER to $6, 125.00 to Tache' .Associates
dollar amount or
Percentage;also
name or Brokerage
firm(s)) the Brokers) herein, but if the SELLER pursuant to terms of clause 22 hereof retains the deposits made
hereunder by.the BUYER, said Broker(s) shall be entitled to receive from the SELLER an amount equal to
one-half the amount so retained or an amount equal to the Broker's fee for professional services according
to this contract,whichever is the lesser.
20. BROKER(S) The Broker(s)named herein Tache' Associates & Hunneman of Salem
WARRANTY warrant(s)that he(they)is(are)duly licensed as such by the Commonwealth of Massachusetts.
(fill in name)
21. DEPOSIT All deposits made hereunder shall be held in escrow by Tache' Associates
(fill in name) as escrow agent subject to the terns of this agreement and shall be duty accounted for at the time for
performance of this agreement In the event of any disagreement between the parties, the escrow agent
may retain all deposits made under this agreement pending instructions mutually given by the SELLER and
the BUYER
22. BUYER's If the BUYER shall fail to fulfill.the BUYER's agreements herein,all deposits made hereunder by the BUYER
DEFAULT; shall be retained by the SELLER as liquidated damages unless within thirty days after the time for pedor-
DAMAGES mance of this agreement or any extension hereof,the SELLER otherwise notifies the BUYER in writing.
23. RELEASE BY The SELLER's spouse hereby agrees to join in said deed and to release and convey all statutory and other
HUSBAND OR rights and interests in said premises.
WIFE
24. BROKER AS The Brokers) named herein joln(s) in this agreement and become(s) a parry hereto, insofar as any provi-
PARTY sions of this agreement expressly apply to the Brokers), and to any amendments or modifications of such
provisions to which the Brokers)agree(s)in writing.
25. LIABILITY OF If the SELLER or BUYER executes this agreement in a representative or fiduciary capacity, only the principal
TRUSTEE, or the estate represented shall be bound, and neither the SELLER or BUYER so executing, nor any
SHAREHOLDER, shareholder or beneficiary of any trust, shall be personally liable for any obligation, express or Implied.
BENEFICIARY,etc. hereunder.
26. WARRANTIES AND The BUYER acknowledges that the BUYER has not been influenced to enter into this transaction nor has
REPRESENTATIONS he relied upon any warranties or representations not set forth or incorporated in this agreement or
previously made in writing, except for ttle`foltowing additional warranties and representations, if any, made
by either the SELLER or the Broker(s):
27. MORTGAGE In order to help finance the acquisition of said premises,the BUYER shall apply for a conventional bank or
CONTINGENCY other institutional mortgage ban of$ 157. 500.0 at prevailing rates,terms and conditions.
CLAUSE If despite the BUYER's diligent efforts a commitment for such loan cannot be obtained on or before 2/24_,
19—%L the BUYER may terminate this agreement by wMten notice
to the SELLER and/or the Broker(s), as agengs) for the-SELLER prior to the expiration of such time,
whereupon any payments made under this agreement shall be forthwith refunded and all other obligations
of the parties hereto shall cease and this agreement shall be void without recourse to the parties hereto. In
no event will the BUYER be deemed to have used diligent efforts to obtain such commitment unless the
BUYER submits a complete mortgage loan application conforming to the foregoing provisions on or
before 2/20 19 98 .-
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28. CONSTRUCTION This instrument,executed in multiple counterparts,is to be construed as a Massachusetts contract,is to tak•
OF AGREEMENT effect as a sealed instrument,sets forth the entire contract between the parties, is binding upon and enure.
to the benefit of the parties hereto and their respective heirs,devisees,executors,administrators,successor:
and assigns, and may be cancelled, modified or amended only by a written instrument executed by boo
the SELLER and the BUYER.If two or more persons are named herein as BUYER their obligations hereunde
shall be joint and several. The captions and marginal notes are used only as a matter of convenience arx
are not to be considered a part of this agreement or to be used in determining the Intent of the parties to it
29. LEAD PAINT LAW The parties acknowledge that, under Massachusetts law, whenever a child or children under six years c
age resides in any residential premises in which any paint, plaster or other accessible material contain:
dangerous levels of lead,the owner of said premises must remove or cover said paint,plaster or other materia
so as to make it inaccessible to children under six years of age.
30. SMOKE DETECTOR The SELLER shall, at the time of the delivery of the deed, deliver a certificate from the fire departmen
of the city or town in which said premises are located stating that said premises have been equipped witi
approved smoke detectors in conformity with applicable law.
31. ADDITIONAL At the time of the delivery of the deed, the SELLER shall deliver to the BUYER a statement from th.
PROVISIONS organization of unit owners in recordable forth and setting forth, in accordance with Section 6(d) of th.
Act,that there are no outstanding common expenses assessed against the Unit as of said time The initiale,
riders, if any, attached hereto, are incorporated herein by reference.
A. Unit plan attached as Exhibit A.
B,[ Punch list of items Seller agrees to complete as Exhibit B.
C. Subject to a 10 day review of condominium documents and master dee
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N ICE: This is a legal document that creates binding obligations. If not understood, consult an attorney.
SELLER fors ouse) SELLER
BUYER D BUYER
Brokers)
EXTENSION
Date
The time for the performance of the foregoing agreement is extended until dciock- M. or
the day o} 19_, time still being of the essence of this agreement as extended.
In all other respects• this agreement is hereby ratified and corifirmed.
This extension, executed in multiple counterparts, is intended to take effect as a sealed instrument.
SELLER (or spouse) SELLER
BUYER BUYER
Broker(s)
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Exhibit B
I Seller agrees to install finished carpentry wood cap on partial .wall on stairwell up
and half wall in livingroom.
t/ Seller agrees to install mutually acceptable mantel with 8 inch marble around
perimeter of fireplace.
V2' Seller agrees to install hardwood throughout 2nd floor with the exception of the
bathroom..
Seller agrees to install deadbolts on all exterior doors in unit #2.
l Seller agrees to install wood trim baseboards throughout.
Seller agrees to install programable thermostat.
Seller agrees to plant one hardwood tree in unit #2 private backyard. Tree size to
be comparable to tree requirements for the city of Salem with respect to new
subdivisions.
Seller agrees to install tile in mudroom in rear of unit. Buyer to select tile size and
color at International Floors in Salem within the current tile allowance existing at "The
Bentley".
Seller to install finished wood sills on each window in unit #2.
10. Seller will rake, loam and seed private yard in spring 1998 when ground
tempature is appropriate.
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SECOND FLOOR 12,600
COMMON TOTAL CUBIC FEET T8 '938
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SALEM. NA
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° nUNIT 2. FIRST FLOOR PLAN
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ARCHITECTS
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February 6, 1998
Meryl J. Longval
34 Falmouth Street
Belmont, MA 02178
East Branch Library Realty Trust
Philip S.Singleton
Trustee of Lynnfield
Dear Phil,
Based on the information obtained from my home inspection,I have divided the results into two sections; 1)the items that
George Fallon stated were works in progress and were are part of the construction plan,and 2)items that are not a part of the
construction plan.
Part of the construction plan according to George Fallon(please list date of planned completion on each item listed):
1. Landscaping-grounds in need of complete landscaping(loam,seeding,shrubbery).
2. Driveway and walks-binder applied in both areas;top coat will be applied.
3. Grading-the grading is level for the most part around the foundation. The grading along the immediate foundation
should be built up as to attain a slope away from the foundation. This will allow for proper surface drainage during wet
periods.
4. Trees-cut back the tree limbs a minimum of six feet from the roof line.
5. Fence-apply a wood preservative on the fence(a wood preservative over a wood sealer).
6. Roof-debris on roof needs to be immediately removed, including the mud-room roof of unit#2. Also,please provide
name of roof contractor for future reference for condominium association,that includes the warrantee or guarantee.
7. Drainage -there are a series of drains on the roof. The drains are directed as to run down the side of the masonry brick
which are the exterior walls. This will cause serious problems and damage to the building if left to run down the side
walls. The draining roof water was freezing on the side walls of the building at the time of inspection. Down-spout
conduction pipes are to be installed as to direct the roof run off of the side walls. These pipes are to be connected to the
gutter system which drains below the grade to the a street drain or dry well(the inspector and I could not determine the
locations of the drain basins).
8. Gutter system-east side gutter is badly dented and is planned to be replaced. The gutter are loaded with debris and are
planned to be cleaned. The conducted down spouts are also be repaired and connected to the gutter spout and lower cast
piping. ,Some conductor pipe do not exist and will be installed. Most of the cast in place for the lower conductor are
cracked and broken,and are to be replaced.
9. Exterior siding,masonry brick used for exterior cladding on all side walls need repair. Most notable are loose bricks on
lower levels on entire building exterior and mud-room,and under window casings. The mortar which bonds the brick in
j place has turned to sand and is falling out of the joints. The large stones which are set under the windowsills and door
frames also need mortar repair. The brick over access door and various locations on the walls themselves need repair. All
masonry repairs will be made by a professional mason. . Also,please provide name of mason for future reference for
condominium association,that includes the warrantee or guarantee.
10. Caulking-will be applied to all seams and gaps in between the siding and window trim, corner boards,door frames and
the chimney.
11. Water penetration on mud-room interior walls next to door will be repaired and caulked.
12. Stain on ceiling in common area-this stain is suspect of a water leak from either a drain pipe,distribution piping or
condensation drip from condensation piping. This should be further evaluated. The ceiling will be opened up for a more
intrusive evaluation.
13. Interior outlets-the basement bathe and right side of the kitchen sink GFCI outlets prematurely tripped. These will be
changed by a licensed electrician.
14. Heating system-the system needs to be cleaned of plaster dust and construction debris. The impeller squirrel cage fan
will be cleaned at the same time. The air filter was filthy and will be changed.
15. Mud-room -exterior access door allows water to enter staining walls.
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!Not discussed with George Fallon:
1. Gate latch in yard in need of repair(door pull does not activate door).
2. Install a gutter system on the mud-room-water damage is evident on brick.
3. Chimney,masonry brick chimney-the chimney is not be used for any type of exhaust. I recommend the chimney be
sealed at the top crown or a minimum,a cap installed as to minimize water penetration down the interior walls of the flues.
4. Foundation/slab should be water proofed as to minimize moisture penetration under the brick. After water proofing is
completed,the grade can be place back on the foundation/slab.
5. Please provide the location of the water main supply,including the shut off value. Confirm that the shut off valve is
serviceable.
6. Heating system-the air filter access area and panel has many sharp edges. This compartment was not cut with safety in
mind. This is a safety hazard at this time. The filter does not sit correctly inside the plenum. Please provide the
paperwork and guarantee/warrantee for the heater and the name of the installation company for future reference
7. Please provide paperwork on all appliances at time of closing.
8. Master bath-sink installed on an incorrect angle. Toilet needs to be secured to the flange(toilet is loose).
9. Half bath-toilet needs to be secured to the flange(toilet is loose).
10. Den-closet ceiling needs to be plastered.
H. Mud-room-plaster needed above access door.
12. Master bedroom-repair plaster hole in winder sill.
13. Walk-in closet second floor-replace incandescent lights with a florescent light fixture(fire hazard).
14. Kitchen cabinet base needs a base molding installed.
15. Touch up plaster on wall outlet and switches(many have gaps at the cover plates).
16. Weather stripping on the screen of the den window is tearing from the screen.
17. Den and 2nd bedroom windows are broken(do not stay open). Second bedroom window installation off center,needs to
be level and squared. /!
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Thank you and I look forward to hearing from you.
Meryl J. ngval
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EXUBIT "B"
02i19/s7 01:26 Inst 259
BK 13578 PG 424
QUTICLAIM DEED
The CITY OF SALEM, a municipal corporation duly organized under the laws of the
Commomvealth of Massachusetts, for considerstion paid and in full consideration of
Thirty Two Thousand ($32,000.00)dollars gram 10 PHILIP S. SINGLETON, Trustee
of Thief East Branch Library Trust in a Declaration of T C oa�i�
�, 1997 and to be recorded herewith, of 12 Charing
Mauachuaetrs 01940. The land noted as Parcel B and on a plan entitled'Subdivision
setts by Eastern Land Survey Associates,
Plan located in Salem. Massachusetts prepared
Inc.^ Christopher R. Mello, PLS, 104 Lowell Street, Peabody, Massachusetts 61960
(508)531-8121,scale: 1'=2'.
IN WITNESS WHEREOF said CITY OF SALEM has caused its corporate seal to be
hereto affixed and these premLr to be ezetaned, acknowledged and delivered in its
_ name and behalf by NEIL J. HARRINIGTON, its Mayor, dated this_,�f�day
of February 1997.
4
t•
CITY OF SALEM,
a
L
By r
Mayor
O �
COMMONWEALTH OF MASSACFfUS�E`TT-S
Eases, aa. t(L+�"'"' ,1997
Then personally appeared the above-named, NEIL I. HARRINGTON, Mayor
of City of Salem, and acknowledged the foregoing instrument to be his free act and
dad in the name and behalf of the City of Salem, bef .
J
NotaryPublic
My Commission Exps� Jp
BK 13978 PG 425
co
CITY OF SALEM
In City Council, rob--y 13, 1991
Ordered: That the Mayor,as the Chief Executive Offimr of the City of Salem,is hereby
authorized to sign the deed and all other weessary documents in order to convey title to the
property at 10 Ome Street,more commonly Imovm as the Sheridan School.
In City Council February 13, 1997
Adopted'by a roll .caI1 vote of 9 yeas, 1 nays, and 1 absent
A motion for immediate reconsideration in the hopes it would not
prevail was denied -=
Approved by the Mayor on February 14, 1997
d
ATTEST: E. �
CITY CLERK
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FAY �'S. Y '{,% Ikl• •.. w�. .t �q��e� •i✓�n�
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EXHIBIT "C"
3oti L$
' 03/1197 2139 inst. 300 - '
~� BK 14021 PG 243 ;
�� "aTDRY OUr'tt't •IM Di_F.D
The COY OF SALEM. a mmicrpel oorpormon duly oBmized under me Is" of the .
Commoowc"of Massachusetts.for ceoaideatiea pad and m full coosidmation of Thirty Two TLoosmd
(S32,000.00)dollus grmt to PHILIP S. SINGLETON, Tsusae of The Eur Bt h IJIMY Trust in ■
3
Declaration of Trust load February Is.1997 and m be Mcorded haewitb,of 12 Ch.W Cross.Lyonheld.
s ,,,*,,,oi%o.The bald mad n Parol B and m a plea ctdidcd'Subdivisim Plm loaatod m Sakur,
Mas..h..,pep"by Eutesn Land Survey Auocuas,Inc.'CMstopber R Mello.PLS 106 Lowell
Street,Peabody.MussrJs coo o1960(508)531-8121,Scalc:1'=2'.
P,W"Add.50 Ewen Sued,Saft>•.Mm"choaetb 01970
:i
This eonveymce docs not subsantiallY tepamt all of the assets of the City of Salem
Tbis Cm&muory Decd is given m eoafi m and attach the eoneee Vote of the City of Sakur
IN wTIWS9S qilmREOF,the said CITY OF SALEM bas cussed its corpotsse sal to be baeto
aT.,d and these pemves to be executed.acknowledged and delivered'm its name and behalf by NEIL J.
BARMGTON,Its Mayor.dared this HE- day of Mascb,1997.
CITY OF SALEM
By: -
Neil J.Barrj gtoa.MAYW
COMMONWEALTH OF MASSACHUSETTS
Marcb 1997
Fsaer.u. '
Tho Personally appa*ed the above-named.NEIL J.HARRINGTON,Mayor of CRY of Sakur.
and a,lo owkdged the fotsgomg imtr=cnt to be his I=act and
decd is the tame and behalf of the City of Salem,before mc.
Notary Public / '
My commission cN�s: �^^^( .2 fl .2 0 e d
� V Q
CITY OF SALEM BK 14021 PG 244
In Clry Council, February 13, 1997
Ordcred: That the Mayor,as the Chief Executive Officer of the City of Salem,is hereby
authorized to sip the deed and all other necessary documents m order to convey tide to the
propety at 50 Essex Strut,more commonly known as the East Branch Library.
In City Council February 13, 1997 -
Adopted by a roll call vote of 8 yeas, 2 nays, and 1 absent
A motion for isediate reconsideration in the hopes it would not
prevail was denied
Approved by the Mayor on Pebruary 14, 1997
ATTEST: DEBORAH E. BORRIMSHAM
CITY CLERK
z3
,13
n
of I An-,i cr_. •,.��
i u LTJ
CITY Oa�F�(S�ALEM
DI
Yea and y 4a,4'f 6� 1
Upon the Question of
jj
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1997 Yd Iiq P a Aim
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PUer L Peto- - a
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Reds It.Fbse
Joie J.Dus►:
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Emu J.mdiedJb,Pa
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TOTAL
s. RUP COPT' A EST
Cm CLERK
ULEN, NAE&
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EXHIBIT "D"
cr k
04.03/97 1207 irrt, ro3 -'
BK 14042 PG 490
BQX CONFIRMATORY O(IITCLAIM DEED _
/\ The CITY OF SALEM,a municipal corporation duly organized under the laws of the
l Commonwealth of Massachusetts,for nominal consideration
bmun to PHILIP S.SINGLETON,Truatoe of The East Bmaeh Library Trust in a Declaration
of Trust dated Febrwry 14,1997 and to be retailed with the Essex South District Registry of Deeds
in Book 13978,Page 421,of 12 Cawing Cross,Lynnfield,Massachusetts 01940.The land noted as
Parcel B and on a plan entitled'Subdivision Plan located in Salem.Massachusetts prepared by
Eastern Land Survey Associates, Inc.'Christopher R.Mello.PLS, 104 Lowell Street,Peabody,
Messechusetts 01960(508)531-8121,Scale: 1'=2'.
s
Property Address:50 Eases Street,Salem,Massachusetts 01970 .:
f
This conveyance does not represent substantially all of the assets of the City of Salem.
The provisions of Chapter 44, Section 63A with respect to the payment in lieu of tax
i ;
payment calculated in accordance with the statutory provisions have been complied with.
This Confimearory Deed is given to exhibit compliance with Massachusetts General laws,
Chapter 44,Section 63A.
IN WITNESS WHEREOF,the said CITY OF SALEM has caused its corporate seal to '_behem affixed and these promises to be executed,acknowledged and delivered in its name and W--
behal f by NEIL J.HARRINGTON,Its Mayor,dated this I SY day or#harrh, 1997.
A
CITY OF SALEM
Nail J. arringtoa, I ayor
l
J.T
S-
a
5
COMMONWEALTH OF MASSACHUSE17. 14043 PG 441 1,°t
Esser,as. 4 f Y
1997March
-
Then personally appeared the above'namcd,NEIL J.HARRINGTON,Mayor of City of '�`` y"�
Salem,and acknowledged the foregoing
behalf of the City of Salem, instrument to be his Cnee ac!and deed in the name and
before me.
�lotary P.M.
MY commission expires:
i`
tv'
I
t� 0 �1��9, 01 t:; iri YA
ERHIBIT "Err % DEED OF FACADE EASEMENT 5K 1 ``3'f7d,�
FU,�
between the CITY OF SALEM fit.
1U and EAST BRANCH LIBRARY TRUST
PHILIP S.SINGLETON,TRUSTEE
^:. THIS DEED OF EASEMENT is granted,for the land and buildirIg(s)located at 50 Essex Stree
=:r
Salem,Massachusetts and described and recorded in the Essex South District Registry of Deeds record
h w'i'th by East Branch Library Trost,Philip S. Singleton, Trustee
..z7lL�, 1997,having an addtoss of 12 Charing Cross,Lvrmfiel ander Declaration of Trust date
to as the"Grantor"to the City of Salem,a muni MA O 1940,hereinafter referre•
Pal corporation having its usual place of business at 9:
Washington Street,Salem,Massachusetts,hereinafter referred to as the"Grantee"
' WHEREAS,the Grantor is the owner and holder of recon[of fee simple title to certain real pmperq
witb rmpmvements located in the Salem Common Historic District and situated at 50 Essex Street in said
Salem;and
WHEREAS,the Grantor has caused the Salem Common Historic District to be listed in the National
Register of Historic Places,encourage among other things.the preservation and restoration in historic and
architectural values associated with structures and areas within said Historic District;and
WHEREAS,the Mayor,as the Chief Executive Officer of the City of Salem,has been authorized
to sell to the Grantee,tb land and building(s)located at 50 Essex Street;and
WHEREAS, the Grantee has accepted the followhI terms and conditions as cov
consideration of the purchase of said surplus land and building; errant for
SrJ The Grantee, for himself,his successors, heirs, or assigns
otherwise known as a facade easement,over the exterior a hereby
�� an moment in gross,
hereinbefore described Ppewart o.`the structuue(s) situated on the
Premises with respect to maintenance,protection,and preservation of the Premises
i; re order to protect the architectural azchaeological and historical into ri thereof.
restrictions are set forth so as to ensure the preservation of those chareczedsdcss which contribute to the
archiwcnual,archaeological and historical integrity of the Premises which have be.,listed on the National
and/or State Registers of Historic Places,under applicable
m.`
which contribute to the architectural. �P cable state and federal legislation. Characteristics
` archaeological and historical integrity ofthe Pernises include,but are
�f3q
not
limited to,the artifacts,features,materials,appearance,and workmanship of the Premises,including
NI.i characteristic,which originally qualified the Premises for listing in the National and/or State Registers
of Historic Places.
4,
' The Grantee covenants agrees to the temps of the Deed of Facade
marts and
,ws ![ Easement as follows;
.;, ., (I) MaintenaneP o` Pre
The Grantee assume the total
d:r mamterrance,repair and win imstnuion of the �C5 to cost of continued
to the architectural P+�ises so as to preserve the characteristics which eontribme
s.:�� ,archaeological and historical integrity of the Premises in a manner satisfactory to the
Grantor according to the Secretary of the Interior's"Standards for Preservation Projects.,' The Grantee may
seek financial assistance from any source available to it. The Grantor docs not
mum g.repairing or administering the Premiss. The Grantee g
mamtamm re g assume any obligation for
Property so as to preserve its historic features and si .ares a maintain the exterior to the
features of the structure(s), or cencer and shall not tither(a)alter extortor
- @)change the site in appearance or condition, in an
` * ineonsistent with this agreement,and Rather Y manner which is
that is not historically agrees not to make any other change or alteration of the exterior
Y appropriate or which'Kwould be detrimental m the preservation of the structure or the
%rt
s
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it
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11 '
..3
LI .
f..
>"78 PG 428
17R 1J7 t
site;
(z) la*ltl4n The Grantee agrees that the Grantor and its
Or
employees may enter the property rhereafter w r agents in the
p perry but not the building(s)situated thereon,thereafter whomever and m the
- extent reasonably necessary for the purposes only of inspection and enforcement of the covenants and the.
n terms of the easement granted herein which the Grantor is hereby entitled to enforce in any court of
competent jurisdiction. In the event of any default or failure,thereafter,on the part of the Grantee to so
maintain and
preserve the exterior appearance of such strtrcnue(s),whether N whole or in pmt,whether by
omission or departure from the standard and specifications hereinbefore designed,the Grantor stall have
the right,power and authority at its election.after refusal or neglect by the Grantee to correct such dcfanY
or failure following a ninety(90)day notice to do so by the Grantor to exercise the Grantee's such
dcfi.a
performance on the Grantee pan and to charge the cost thereof to the Grantee.
- (3) Alterations The Grantor agrees that the structural changes, alterations, additimm or
improvements over the exterior appearance of the structure(s),as would not in the opinion of the Grantor
fundamentally alter its(their)character or setting may be made thereto by the Grantee providing that the
prior written approval of the Grantor to such change,alteration or improvements shall have been olimi
which approval shall not be unreasonably withheld. Alterations will include but not be ]united to is
increase of parking or paved area,the decrease in the
(in the form of the Salem Historical Commission)shall,acct cal' awritteand a moo to fencing. The Grantee
approval within thirty(60)days of its receipt of tans and request by the Grantee for rx
the Salem P p P specifications submitted by the Grantee(thro*
Planning Department)and shall give notice of any disapproval to the Grantee in writing with
reasons. If a request for approval is not disapproved by the Grantor within thirty(60)days,it shall be
deemed approved. Ordinary maintenance and repair of the Premises may be
out
permission of the Grantor. For the purposes of this sectio4 ordinarya made�� the��
as that to which there is no alteration to materials,workmanship design or oor outward
and repair is described
of existing). Change inpaint colon will not be cons•idered an alteration.utward appearance(-e e>aq
(4) 1=Watioa: In case of damage by fire or other casualty so serious as to cause racoma sec
_
to be reasonably adjudged to be impractical,this casement,together with all covenants,obligatioas,and
restrictions herein recited shall terminate.
(5) As51gII[II -The Grantor may assign this Agreement to another governmental body or to a--
charitable corporation or trust among the purposes of which is the maintenance and preservation of historic
` properties only in the event that the Grantor should cease to function in its present capacity.
(6) Success=:The covenants agreed to and the restrictions imposed,as aforesaid,
only be binding upon the Grantee but also other(s) shall as
a servitude successor to(him)them in interest and shall continue c
naming with the land coact the above-described premises in perpetuity. All rights reserved he
to the City of Salem may be exercised,modified,or released by its designreit
ee duly author ized.in decd it
appointment executed by its Mayor.
(7) Val'diy d erab'I'v: The invalidity or meriforreability of an
vision
Agreement shall not affect the validity or enforceability of any other provision of this A�greem=L of this
The Grantee agrees:
(1) upon completion of the We of said land and building(s)from the City of Salem to Fast
Branch Library Trust,Philip S.Singleton,Trustee,to cause this Deed of Facade Easement to be recorded
with the Essex South District Registry of Deeds;and
y
s.
-�1
t
SK 13978 PG 429
(2) to file a copy of the recorded Deed of Facade Easement with the Massachnsetcs Historical
Commission
Witness our hands and seals this fourteenth day of February, 1997.
Aup
#912=w ,
• 67—&--P7 �%trt a-t�
nrstee
COMMONWEALTH OF MASSACHUSETTS
Essex,&S.
February 14, 1997
Thea personally appeared the above-named pbilip S.Singleton and acknowledged the foregoing
instrument to be their free act and deed,before me.
Notary pobe
My Commission Expires
: Y
City of Salem
Ncil J.Hanligton,Mayor
COMMONWEALTH OF MASSACHUSgIls
Essex.ss. K
1997
Then personally appeared the above-named Neil J. ( 15 Fiarrin oo and
instrument to be ttueir free act and decd,before me. acknowledged the foregoing
Notary public /
My Commission Expires: 67�
s. ;
MMIBIT "F"
i s
01/23/96 3:14 irnt. 451 -
A11TBMMNrToTHE BK 14546 RG 134 .
DEED OF FACADE EASLMMp '
Q bow%"60 MY OF SAISM :`Y
sad EAST HA4NC33 IlHRARY TR ,=p
PHILDP s SINGLETON,TRUST -
1.
T"a DEED OF FACADE EASEMENT recorded a gook 13979,Page 427 is haaby amended by nriking the afore. }y
mfe wwood instrument in its tracery am treating the folw,,o l:
THIS DEED OF EASEMENT is wanted• for the lad and wadi*,) located at 50 Eaux Selves. Sda�
Maasaclustses and daecnbed and reccedrd in the Fssxc South District Registry of Deeds room-dad hvawith by East Draw& `.
IAbMrY Trust,PbIUP S.Slnwleton,Trustee,under Declaration of Trutt dated FabMary 14.1997,lining an address of 12
Charing Crura,Lynnfield,Masachusaus 01940,baamaftw raftsred to a the"Gnaeseto the City of stilems,a municipal
corporation having its mull plain of business at 93 Washington Straat,Salesq Mwachusatts,haamafla'rdmed to as the '
"Greetee". cZ
WEWMEAS.the Grantee has caused the Salem Comr000 Historic District to be listed in the National Regisor of r
Historic Pleura,aseormage among wits thugs,the praavafion and rataation of historic and architecnurl values associated
with structures and ansa within said Historic District;and
WHEREAS,the Grantor has accepted the following tams and condition as covenaw for cnusldtsatimo of the
purchase of said surplus land and buildings;and
WHEREAS, the Gruner is the owner i d holder of word of fa simple title to oatain real property with
improvements located in the Salem Common Historic District and situated at 50 Fssax Suver in said Salem
The Greater.fm h®sel&his successors.basis or assigns hwaby grants an assmm in gnus,othrwue brown as e
fee&&eawrcnt.over the wrter;or appmt,,oa of the so twume(s)situated of the hereinbefore described pramiw with respect
to mautmsnoq pratwDM and presavatm of the Pramoa in order to protect the ne , at,aehaeologiod and histm'ial
integrity thereof.These preeervatim restrictions are ser forth to as to insure the ton of those characteristics which -?
contribute to the architectural,arthseolo&al and historical integrity of the promise;which have bean listed on the National
andlor State Registers of Historic Phots,under applicable gale and federal legislation.Charauaiaka which caombuta to the
architectural,archaeological and historical integrity of the promises mchrdc,but are,not Limited to,the artifacts,featruea,
"utera's,appesreoce,and worionaml ii of the Pfummk Including those characteristics which ovigioalty qutll5ed the Prvnisrs
fm listing in the National and/or State Registers of Historic Plains.
The Greater covmanu and agree to the tame of the IMed of Faode Fre•ent at lollom:
if
(1) MWAIMROLRf bmba:The Grassw agrees to aasana the total cost of continued maintenance
repair and administration of the Premises so as to preserve the dunwaistiea which oomtbute to the architectural, '._
archaeological and historial integrity of the Prmiws in the mamts satafacioy to the Grantee wowding to the
Secretary of the Inaiora*Standards fa Prastsvatiom P:'gecta•The Grantor may seek financial asaigaroe from
any source available to it The Grantee does not Mine any obligation for nuuuinug repammg w administering 'a
the Premises.The Groaner agrom to maintain the interior of the entre property iso as to preserve in;historic
featurm and significsnce,and shall no either(a)&liar Grittier features of the suumune(s>,or(b)change the site in
appearance or cooditsm in any manner which n moombtmt with this agromur,4 and further agrees not to make
ary other chance or alterafm of the interior that is not historically appropiao or which would be detrimemal to
g
'6
Y_.
BK 14546 PG 131
a the preservation of the enuctwe or the site: .
The Grantor agrees that the Grata and Its representatives,agents aodtor em*yea
(2) L the:eafler wheoever and to the ertem reuonablY
may emu the property but no the bunding(s)eaueted thence of the covenants and the tame of the easement
necessary for the purposes Only of inspection and enforcement
grinn. In the event
grinned herein which the Grantee "'any hereby entitled to enforce any court of competent Juriedtetio
of any defauh or fe7toe,thereafter,on the part of the Grantor m so miision and epasave�staappearndard
�
of such snucturo(s), whether in whole or in part, whether by omission or departure
specifiestious bereiohefore designed.the Grasta dell have the right,power and authority n ba elation after
refosal or neglect by the Grantor to correct such dcharb or More following a ninety(90)day notice to do so by
the Grantee to exercise the Grantor's t dMod pafonosom on the Grantor's part and to charge the cost thereof
to the Grantor.
(3) Aatlaar
Th:Grantor epees that the structural cLmges,sheaoom,additions,or improvements
sover the exterior appearance of the stnrctme(s)at would not in the opinion of the Grantee ftmdameatallY cherof t is
(their)character or sating may be made thereto by the Grantor providing that the prior written appm� rat be .
he
Grantee to such change, alteration or improvements shall have been obtained, which approval
,,�mbly whhheld phaatiom will bot rat 1•®hed to the irnrrsee of perlemg or paved area,the decrease
in the ,and abandon to&tang• The Gnsta(m the form of the Saiem I•tmlotleal Co®ssio°)shall
as upon a written rNuest by the Grantor for each approval within thirty(30)days of its receipt of plain and
the Grantor(through the Salem Planning Departmet)and BW give notice of soy
specifications submined by for approval is rat disapproved by the Grantee
disapproval to the Grantor m writ with rasom. If a request aPPro
witbin thirty(30)delis,h sttan be uioemed approved• Ordinary mamtmaoro and«pair of the Promses may Ix made
s without written pernirsion of the Grantee. For the purposes of the seems ordinarymamteoance end repair s
or ournnd nppearanoe(i.e.exert
described as that to which there s no ahaation m mstaids,wotinosmhp,design .� install n of the
plication of essstmg). Change in paint color will not be considered as ehaatioa
replicemra windows,in the fog of vinyl windows,by Philip S.Smgletoa Trusts shell not be a consideration of
the Salem Historical=I4=II0M and shall not be abject to its approval when considering sheradom,est.to the .
F premises.
(q) Termination: In ease of damage by foe or other c&vx so serious as to corse recomUcsuic n to
F be reasonably adjudged to be impractical,this eaaeracot together with ell covenants,obligation+ and xstri tion
' herein recited than terminate.
(5) A&dLWR t: The Grantee may assign this Aperment to motherBover�entel body or to any
charitable corporation or trust among the purposes of which s the maintenance and Praam'°bp° of historic
properties only in the event that the Grantee should cease to function in los present capacity.
(6) SRUgtMM: The covenants epee to and the restrictions imposed,as a6maaid,shell not only be
- binding upon the Gra tor but abo otber(s)arouxssora to(him)them in kKacst and then contaro as a servitude
rtumirtg with the Lad with the abovedescrabed promses m PaPY• rights reserved herein to the Ctty of
Salem may be exescised,modified,m released by its dune&'euthortmd in deed or eppoiotment executed by
its Mayor.
i
BK 14546 PG 132
(7) V&Utty emd Sevarahtaty: The im,ydity or unraforaebrlhy of any povidone of this Agreement
shall not affect the validity or en£oroeabaky ofaty other provision of this Agreement.
The Grantee Ogren:
(1) upon oompkdm ofthe gab ofamid ind and halft(s)ftm the City of Salim to Egg Bm=h Ltlmy
Trust,Ph k S.Sirglemn,Tnntee,to came ihb Deed of Facade Eaaemst to be recorded with Eau South District
RgOgry of Deeds;and
(2) to file a copy of the recorded Deed of Facade Easement with the Mmwluaetts HiworiW
conmlissiom
WITNESS our hands and seals thisQedry of�� 1997.
qpP S.Slagbton,Traatee
City of Salem
Ndl I Ha gree,Ma
COMMONWEALTH OF MASSACHUSETTS
Essex '�.Iutcd��' .1997
Thm prwm*appeared the above-o®ed Philip S.Singleton,Trastee amd wimowbdgod the foregoing
mstnrnem to be his free set and dad,before me.
t Pub'
syComoda nEjtj���A¢S
M jyr �\#,i�lv�,�{p+y�'i�1'A3dtt1 3R19AVR �19�tli4+!Ge�xS�EY�FICFY.° d4T'. ri ': ., ..•. .. .
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EXHIBIT "G^
.. ��� OtNH�98 3=39 inst. 338
PARTIAL RELEASE BK 14528 FG 555
CITY OF SALEM, a municipal corporation duly organized _
under the lave of the Commonwealth of Massachusetts, holder
of a Mortgage to secure the performance of the Mortgagor in
accordance with a contract for sale of land and building for
private development, from PHILIP S. SINGLETON, TRUSSES of
THE EAST BRANCH LIBRARY TRUST, dated February 14, 1997, _
recorded in Essex South District Registry of Deeds, Book
13978, Page '430, hereby releases to PHILIPS. SING.STCR, TRUSTEE _
of THE EAST BRANCH LIBRARY TRUST, all interest acquired under
said Performance Mortgage, in the following described portions - _
of the mortgaged premises, to wit:
Unit 1, The Bentley Condominium, located at So Essex Street,
Salem, MA including (1) all percentage interests appertaining
to the Unit in the common areae and facilities of the
Condominium and (2) storage and parking areae assigned to
the Condominium Unit.
The above described Condominium Unit is a portion Of � u
the land noted as Parcel a on a plan entitled -Subdivision <y
Plan located in Salem, Massachusetts, recorded in Essex
Registry of Deeds, Plan No. 73, Plan Book 314. -• •3z
IN WITNESS la3EREOF, thesaidCITY OF SALEM has caused its SS'
corporate seal to be hereby affixed and these presents to be signed
in its name and behalf by, NEAL J. HARRINGTON, MAYOR, this
3,d day day of January, 1998.
CITY OF SALEM
. BY
COMMONWEALTH OF MASSACHUSETTS
SSSEI, ea January 2, 1998 . -
Then personally appeared the above named NEIL, J. HARRINGTON,
Mavor of the City of Salem- and acknowledged the foregoing
inatru�t to be his free act and deed in the name and behalf of _ :eY
the City of Salem, before vie '
o a
My s1 Expires: r'
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03i1EXHIBIT "H"
9i98 `2:31 inst. 352
z B! 14669 PG 20!
Salem Historical commission
ONE SALEM GREEN, SALEM, MASSACHUSETTS 01970
(E08) 745-9595 EXT. 311 FAX (508) 740-0404
CLERK'S CERTIFICATE AS TO VIOLATION
THE UNDERSIGNED, being the Clerk of the SALEM HISTORICAL COMMISSION
j ("Commission")created under Mass. Gen. Laws ch. 40CA,certifies that(i)at a duly called and held
meeting of the Commission at which a quorum was present,the Commission, pursuant to its power
and authority under Chapter 40C of the General Laws of Massachusetts and ordinances and
guidelines adopted pursuant thereto, voted on the Meeting Date to order the Owners or their
representatives of the below described property to perform or refrain from such acts relating to the
Premises, and (ii) whereas the Owners have failed as of this day to comply with such vote, the
Commission,at a duly called meeting at which a quorum was present, voted to confirm,by recording
or filing this certificate with the appropriate land records, that such failure constitutes a continuing
violation to which the Premises shall remain subject. SIGNED under the penalties of perjury.
Owner: East Branch Library Trust Philip S. Singleton Trustee
Property Address: LO Essex Street
Salem MA 01970
Title References: Book 13978 Page 424
Book 14021 , Page 243
Book 14048 , Page /490
Date: March 19 1998 �a
J . Guy, Clerk
S Historical Co ssion
ESSEX, ss. Common eal of Massachusetts
Date:
Then personally appeared the above-named Jane A. Guy, as such person is the erk em
Historical Commission, and acknowledged the foregoing instrument to be: u04m rso ct and
deed, before me
SFEPHEN DI88 /J
00nfonEipl NOV.12,� Public
RETURN OFFICE My Commis ron ex ires
WILLIAM
JM . LUNDREGFQi p
81 Washington Street
Salem, Massa:husetts 01970
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(978)745-9595 (ext. 380
Leo E. Tremblay
Director of Public Property
Inspector of Building
Zoning Enforcement Officer
March 19 , 1998
Philip Singleton
12 Charring Cross Lane
Lynnfield, Mass . 01940
RE : 50 Essex Street
Dear Mr . Singleton:
The City of Salem Legal Department has directed me to
re-instate Certificates of Occupancy for 50 Essex Street
179-97 , Unit #1 and 179-97 Unit #3 .
You are to return to this office Certificates for
units 179-97 Unit #2 and 179-97 Unit #4 , these units will
not receive Certificates of Occupancy until this office
has been directed to issue them per City of Salem Legal
Department .
Please refer all questions concerning this matter
with the City of Salem Legal Department .
Sincerely,
Leo E. Trembl
Inspector of Buildings
LET: scm
CC : Jane Guy, Planning Department
William Lundregan, City Solicitor
Councillor Paskowski , Ward 1
Memo to: Jane A. Guy, Assistant Planner CCU
Salem Historical Commission
From: William J. Lundregan, City Solicitor
Dated: February 19, 1998
Re: Authority of Mayor to Amend Deed of Facade Easement
on 50 Essex Street property
You have asked the question: did former Mayor Harrington, acting without
authorization from the City Council, have the legal authority to execute an amendment
to the original deed granting a facade easement In 50 Essex Street to the City of
Salem, which amendment resulted in the removal of the Historical Commission's
jurisdiction over the windows in the said property. I answer: no, the former Mayor
did not have the authority to do so, either under the Massachusetts General
Laws or under the Salem City Code, for the reasons that: (1) only the City Council can
authorize the disposition of an Interest in real estate owned by the City, and (2) only
the City Council can authorize the Mayor to enter Into any kind of contract on behalf
of the City.
In the transaction under discussion,the Salem City Council voted 9-2, on December 5,
1996, to authorize the sale of 50 Essex Street to a private developer for conversion
Into four (4) residential condominiums. The proposal was approved by the Mayor on
December 9, 1996. On February 14, 1997, the City, by Its Mayor and City Planner, and
with the approval of the City Solicitor, executed a contract with the East Branch Library
Trust, Philip S. Singleton, Trustee, pursuant to which the said property was conveyed
by deed to the said developer, subject to the terms and conditions of the agreement.
Simultaneously, and as part of the subject transaction, the developer executed and
delivered to the City a 'Deed of Facade Easement," giving the City the right to impose
certain restrictions on any proposed changes of the building facade, to maintain the
historic countenance of the building. All of the foregoing was accomplished in
February of 1997.
On or about June 20, 1997 - some four and one-half months later, and without any
intervening vote of the City Council,the Mayor, purportedly acting on behalf of the City,
1
executed and delivered to the developer an "Amendment to the Deed of Facade
Easement; which reduced the City's power to control any proposed changes in the
building's facade. Of immediate interest to us, the amendment removed the building's
windows from the City's jurisdiction. The developer now proposes, as part of his
rehabilitation of the building, to install entirely new and not-historically-conforming
windows.
G.L.c. 39 outlines the structure of "municipal government" Section 1, "allocation of
powers," provides as follows:
Except as otherwise provided by law, city councils shall have the powers of
towns; boards of aldermen shall have the powers, perform the duties and be subject
to the liabilities of selectmen, except with respect to appointments, and the mayor
shall have the powers, perform the duties and be subject to the liabilities
of selectmen with respect to appointments, but all his appointments shall be
subject to confirmation and rejection by the aldermen, and upon the rejection of a
person so appointed the mayor shall within one month thereafter make another
appointment. In cities having a single legislative board other than a board of
aldermen, such board shall, so far as appropriate and not inconsistent with the
express provisions of any general or special law, have the powers, perform the duties
and be subject to the liabilities of the board of aldermen.
(Emphasis added.)
Under this provision, all substantive governmental power is vested in the City Council.
G.Lc. 40 outlines the 'powers and duties of cities and towns.' The following sections
are of immediate Interest to us:
Sec. 1, "nature and scope," provides as follows:
Cities and towns shall be bodies corporate, and, except as otherwise expressly
provided, shall have the powers, exercise the privileges and be subject to the duties
and liabilities provided in the several acts establishing them and in the acts relating
thereto. Except as otherwise expressly provided, cities shall have all the
powers of towns and such additional powers as are granted to them by their
charters or by general or special law, and all laws relative to towns shall apply
to cities.
(Emphasis added.) The remainder of c. 40 speaks of 'towns,' but the emphasized
language in Sec. 1 indicates that cities have like powers.
2
Sec. 3, 'towns; power to hold, lease and convey property," is the primary statutory
authority empowering municipalities to take, hold, and dispose of interests in real
property. It reads as follows:
A town may hold real estate for the public use of the inhabitants and may convey the
same by a deed of its selectmen thereto duly authorized, or by a deed of a
committee or agent thereto duly authorized; may by its selectmen let or
lease for not more than ten years, on such terms as the selectmen determine, a public
building or part thereof, except schoolhouses in actual use as such; may by its
selectmen let or lease for not more than twenty-five years, real estate to the
Massachusetts Bay Transportation Authority for use by the authority as a parking lot for
commuters; may hold personal estate for the public use of the inhabitants, and
alienate and dispose of the same; may hold real and personal estate in trust for the
support of schools, and for the promotion of education, within the limits of the town;
may receive, hold and manage any devise, bequest or gift for the establishment or
equipment of memorials for properly commemorating the services of the soldiers,
sailors and marines who have served the country in war, and for the establishment or
maintenance of any reading room for which it may grant money under the provisions of
section five; and may make such orders as it may deem necessary or expedient for
the disposal or use of its corporate property. All real estate or personal property
of the town, not by law or by vote of the town placed In the charge of any
particular board, officer or department, shall be under the control of the
selectmen,except as is otherwise provided in this section or section nine.
Notwithstanding the provisions of this section, a city or town, with the approval of the
school committee, may rent or lease any school building not in actual use and, with the
approval of the commissioner of education, surplus space in a school building in
actual use to any one or more public or private profit-making businesses or nonprofit
organizations; provided, however, that Joint occupancy of a school building In actual
use as such shall not interfere with educational programs being conducted In said
building. The terms of any such rental or lease shall be as approved by the school
committee; provided, however, that no school building not in actual use shall be
rented or leased for an initial term longer than ten years, but with renewal options If
approved by the school committee.
The monies received from such rental or lease shall be kept separate and apart from
other city or town funds in the city or town treasury and may be expended by the
school committee without further appropriation for the upkeep of the facility so rented
or surplus space which is so rented; provided, however,that any balance remaining in
such account at the close of a fiscal year shall be paid Into the General Fund of such
city or town; and, provided further, that in any city or town that accepts this proviso,any
such balance shall remain in said account and may be expended for the upkeep and
maintenance of any facility under the control of the school committee.
3
(Emphasis added.)
Sec. 4, 'towns; power to contract; purposes," makes explicit the fact that a mayor
cannot enter into any kind of contract on behalf of his city without authorization from
the city council:
A city or town may make contracts for the exercise of its corporate powers, on such
terms and conditions as are authorized by the town meeting in a town, the town
council in a town without a town meeting, the city council In a city with the
approval of the mayor or the city council in a Plan D or Plan E city with the
approval of the manager, or as otherwise authorized in accordance with a duly
adopted charter. A city or town may not contract for any purpose, on any terms, or
under any conditions inconsistent with any applicable provision of any general or
special law.
(Emphasis added.)
Now then: It is beyond doubt that an "easement; properly so-called' , is an Interest in
real property. Silvedeib v. Hebshie, 33 Mass.App.Ct. 911, 912 (1992); Oliver v. Town
of Mattapoisett, 17 Mass.App.Ct. 286, 288-289 (1983). The disposition of a city's
Interest in real property is essentially a legislative function, vested in the city council,
with the approval of the mayor. After approving the proposed disposition, the council.
can designate the mayor (or another) as its agent for consummating the transaction.
But any such transaction must first be voted by the council. Sancta Mada Hospital v.
CJty of Cambddge, 369 Mass. 586, 592-593 (1976). Also see: Elbe File& Binder Co. v.
Fall River, 329 Mass. 682, 684, (1953) ("the body having general power to authorize
the lease ... of lands was the city councill; Gennad v. City of Revere, 23 Mass.App.bL
979 (1987) ('the sale of land by a municipality is a legislative function'); Gould v. City
Council of Newburyport, 392 Mass. 302, 303 (1984) ('no defendant contends that the
city, acting through the mayor, could enter into a lease of the premises without city
council authorization').
It is possible that the'facade easement"with which we are concerned is not realty an"easement'in the
conveyancing sense," but, rather, is merely "'a condition ..., safeguard ... (or) limitation ... on ... use";
DiPeolo v. Bradstreet Land Development Corp, 23 Mass.App.Ct. 928, 929 (1986), in which case the
balance of this discussion will not apply. However, in such case, G.L.c. 40, Sec. 4, vesting all powers of
contract Jointly in the city council and the mayor,would dictate the same result as is reached in the body of
this memo, viz,that the mayor,by himself,cannot enter into a contract on behalf of the city.
4
As for the Salem City Code, Sec. 2-129 clearly states:
The city council may convey or lease real estate only by a vote of two-thirds (2n) of all
its members. Any subsequent amendment of this section shall require a two-thirds
(W)vote of all the members of the city council.
This provision not only re-emphasizes that only the city council can authorize a
conveyance of an interest in real estate; it provides that the same may be
accomplished only by a two-thirds vote of the council. If, as opined hereinabove, the
City's'facade easement' constitutes an Interest in real property, then the mayor could
not lawfully release any portion thereof without the approval of two-thirds of the city
council.' If, on the other hand, the "facade easement" is viewed as a mere contractual
restriction upon the developer's right to alter the facade of the building, even so it
would appear that under G.L.c. 40, Sec. 4 the subsequent 'amendment" was
nonetheless a contract, or an amendment to a contract, which, itself, would have
required authorization by a majority vote of the city council. Either way, I cannot see
how the former mayor, by himself, had the authority to bind the City to this amendment.
Ordinarily, if the amendment was executed without authority, It could have no binding
effect upon the City - even in the event that the developer changed his position in
reliance thereon. Sancta Mada Hospital v. City of Cambridge, supra, at 595. In such
case the City would be entitled to assert Its authority over the building and Insist upon
full compliance with the original facade easement. If necessary, the City, by and
through its Building Inspector, could Issue cease and desist orders and, should it
prove necessary to enforce the same, bring an action for declaratory and injunctive
relief in the Superior Court.
But caveat: Sec. 3A of G.L. c. 40 sets out an apparent exception to this rule, and it is
one with which we will have to deal should the City choose to attempt to enforce its
rights in the original facade easement:
'There are additional reasons why a two-thirds vote of the city council may have been necessary;so as not
to unduly prolong this discussion, and because they are not essential to the conclusion herein reached, I
have set these out in an addendum hereto:
5
Any recordable instrument purporting to affect an interest in real estate, title to which is
held by a city, town, district or regional school district, executed in the name of a town
by its selectmen, in the name of a city by its mayor or by its city manager in the case of
a city having a Plan D or Plan E charter, or in the name of a district or regional school
district by the chairman of its prudential committee or other governing board or by any
agent or committee authorized by particular vote of the city, town or district or in the
case of a municipality acting by or through an industrial development financing
authority as provided in section seven of chapter forty D by vote of the board of
directors of said authority, shall be binding on the city, town, district or regional school
district in favor of a purchaser or other person relying in good faith on such instrument
notwithstanding inconsistent provisions of general or special law, the city or town
charter, by-laws, resolutions or votes.
Now, it is not certain that this statute would apply here; after all, the City does not hold
title to the property in question. However, I could anticipate an argument that the City
does hold title to the facade easement, that it was this Interest in real estate that was
affected by the June 1997 amendment, and, therefore, the statute does apply. if such
an argument succeeded, we would then have to litigate over whether this developer
qualifies as 'a purchaser or other person relying in good faith on such Instrument' We
could also challenge the instrument for lack of consideration, etc. The point here is
that, even if everything stated hereinabove Is correct, it does not automatically follow
that the developer will be disentitled to rely upon the amendment.
I hope the foregoing has been of assistance.
6
Addendum
Depending upon how, when, and under what terms and conditions the City acquired
the 50 Essex Street property in the first place, and how thereafter the City held and
used the property, there are two other statutes that may apply to this case.
G.L.c. 40, Sec. 15, "abandonment of rights in realty, conditions; provides as follows:
If any officer of a city or town having charge of any land, easement or right taken for
such city or town, otherwise than by purchase, notifies the city council or the
selectmen that, in his opinion, such land, easement or right, or part thereof, is no
longer required for public purposes, and if thereafter the city council or the
Inhabitants of the town by a two thirds vote authorize the conveyance of such
land, or of part thereof, or the abandonment of such easement or right, or part thereof,
and specify the minimum amount to be paid for such conveyance or abandonment, the
mayor or the selectmen may, for such amount or a larger amount, and upon such other
terms as the mayor or selectmen shall consider proper, convey said land, or part
thereof, by deed, or declare said easement or right, or part thereof, to be abandoned.
Such declaration, being recorded in the registry of deeds for the district where the land
Is situated, shall extinguish the easement or right, or part thereof.
No land heretofore or hereafter acquired by eminent domain by one city or town within
the limits of another city or town shall be conveyed under this section unless the mayor
or selectmen authorized to convey such land offer to convey such land to the city or
town wherein such land Iles for the minimum amount speel ied as aforesaid, nor
unless such offer is not accepted within six months after notice thereof Is given to the
mayor or selectmen of the city or town wherein such land lies by the mayor or
selectmen authorized to convey, nor unless such conveyance Is made within three
months after the expiration of said six months. Land so offered to a city or town
wherein it lies may be purchased by such city or town whether or not needed for the
municipal purposes of such city or town, and, if so purchased and If such land Is not
needed for municipal purposes, it shall be disposed of as such city or town shall
determine.
(Emphasis added.)
Sec. 15A, `transfer of land; procedure," provides as follows:
Whenever a board or officer having charge of land, including land acquired
for playground purposes pursuant to the provisions of section fourteen of chapter forty-
five, but excluding land acquired for park purposes, constituting the whole or any
part of an estate held by a city or town within Its limits for a specific
purpose shall determine that such land is no longer needed for such
purpose, whether such land was acquired before or after the effective date of this
7
section and whether acquired by eminent domain, purchase, gift, devise or otherwise,
such board or officer shall forthwith give notice of such determination to the city council
of the city or the board of selectmen of the town. At any time after the receipt of such
notice, the city council of the city by a two thirds vote of all Its members, in
the case of a city having a city manager, with the approval of said city manager, and in
the case of other cities, with the approval of the mayor, or the town by a two thirds vote
at a regular or special town meeting, may transfer the care, custody, management and
control of such land to the same or another board or officer of the city or town for
another specific municipal purpose, any provision of general or special law to the
contrary notwithstanding; provided, that no such transfer shall be valid if it is in
violation of any term or condition of the title of the city or town to such land.
In any city or town which accepts the provisions of this paragraph, when land is being
transferred for the purpose of constructing low and moderate income housing, the vote
required of the city council or the town meeting shall be by a majority vote.
It has been held that these statutes apply whenever an interest in real estate has been
acquired by a municipality and held for a particular public purpose - and this
regardless of whether or not the municipality ever committed the property to the
jurisdiction of a particular board. In such case, the property may not be disposed of
except in accordance with a two-stage process: (1) the board having jurisdiction over
the property - or the municipality, itself, in the case of land not committed to the
jurisdiction of a particular board - must determine that the property is no longer need
for the particular purpose;then (2)there must be two-thirds vote authorizing the sale or
transfer, itself. Thereafter, the city council may, by simple majority vote, designate the
mayor or another as the agent for purposes of consummating the actual transfer. See:
Harris v. Town of Wayland, 392 Mass. 237 (1984), for a complete discussion of the
application and operation of these statutes.
In our case, the Initial transfer of the property was duly authorized by a two-thirds vote
of the City Council. Query: whether the facade easement is, itself, an Interest in real
property held for a particular public purpose7l If so, then an argument can be made
that another two-thirds vote of the City Council was required to authorize the Mayor to
execute the June 1997 amendment, which had the effect of 'conveying away" a
portion of the City's interestl
8
i
a
Salem Historical Commission
ONE SALEM GREEN, SALEM, MASSACHUSETTS 01970
(508) 7459595 EXT. 311 FAX (508) 740-0404
December 18, 1997
NOTICE OF VIOLATION
Philip S. Singleton, Tr.
East Branch Library Trust
12 Charing Cross Road
Lynnfield, MA 01940
Dear Mr. Singleton:
Recently, it has come to the attention of the Salem Historical that window work is underway on
the exterior of your property at 50 Essex Street, for which the Commission holds a Deed of Facade
Easement. This is one of three remaining issues that have not yet been approved by the Commission.
The other outstanding issues are the proposed roof deck and the color of the Pan's fence.
Please cease and desist all exterior work, read the enclosed information and kindly file the
appropriate application within 30 days. If you need assistance, please contact our staff person, Jane
Guy, at the Salem Planning Department, One Salem Green, Salem, MA (745-9595, Ext. 311).
Thank you for your cooperation in this matter.
Sincerely,
THE SALEM HISTORICAL COMMISSION
Helen Sides
Chairman
cc: Building Dept.
City Clerk