Not a rent moratorium

April 23, 2020:- The new law is a moratorium on some (not all) evictions, not on rent. The law expressly states:

Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.

Are landlords allowed to remind tenants of this fact? Yes.

Certainly, landlords who choose to provide a written reminder need to take care not to say anything that could construed as a request to vacate or as a threat to initiate a debt-collection lawsuit, nor should they visit the tenant. Sending the reminder to some tenants but not to others would invite a charge of discrimination, so an all-or-none approach would be wiser.

Statute

The eviction moratorium statute prohibits landlords from sending, for the purposes of a “non-essential eviction,” any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”

Regulations

The Attorney General’s emergency debt-collection regulations prohibit “creditors” from threatening to initiate a collection lawsuit. Is a landlord who is trying to collect rent owed (overdue by 30+ days) under a lease a “creditor” within the meaning of the debt-collection regulations?

The emergency regulation states, at s. 35.03(2), that the prohibitions do not apply to “an attempt to collect a debt owed by a tenant to an owner.” The applicable regulation defines “tenant” as a person who occupies a dwelling unit “under a rental agreement,” which term the regulation defines as “an express or implied agreement for use and occupancy of a dwelling unit.” Is a tenant-at-sufferance someone who is occupying a dwelling unit “under an express or implied agreement”?  No; on the contrary, the tenant-at-sufferance is occupying the unit without the owner’s agreement, after any express or implied agreement has expired or been terminated.

This is somewhat convoluted, but bear with me: It is all too easy to imagine someone whose lease/rental agreement has expired or been terminated claiming to be a tenant-at-sufferance and, therefore, not a “tenant” within the meaning of the regulation and, therefore, outside the scope of the landlord-tenant exception to the ban on creditor-debtor communication. So tread carefully.

Takeaway

Sending a simple reminder to all tenants that the new law states that “nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent” would not, in my opinion, violate the statute or the regulations.

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Peter Vickery, Esq.

One thought on “Not a rent moratorium

  1. (For you- not for publication)

    Time for YOU to be drafting and organizing the framework of a class-action suit against the Commonwealth for essentially seizing property without compensation. The devil’s advocate view of the reparation formula might go like this:
    (1)Total amount of rent lost without ability to recoup’
    (2) Normal vacancy rate
    (3) Normal expectable loss with prosecuted evictions.
    (4) Normal re-renting time for vacant units.
    So if the ability to evict WERE in place, then what would the probable loss be anyway, and given rehabbing and re-renting timelines, what would the additional loss be in each case.
    A compromise with the Commonwealth should be in the order of 50% of the adjusted loss- but I would be more likely to expect 25% of the total lost rent- possibly as a tax credit.
    Ideas?
    I would be happy to converse/work with you on this issue.
    I am not a lawyer, but do have 45 years of rental experience.

    Bill Saltman

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