Eviction Moratorium FAQs

Q. Is the eviction moratorium a federal law or a state law?

There are two moratoria. One is contained in the federal CARES Act. The other is a Massachusetts law, Chapter 65.

Q. Is the Massachusetts eviction moratorium a statute or an executive order?

The eviction moratorium is a statute, not an executive order. The Massachusetts Legislature passed it (and Governor Charlie Baker signed it) as an emergency law, Chapter 65 of the Acts of 2020, on April 20.

How long will the eviction moratorium last?

At present, Chapter 65 says that the eviction moratorium will last as long as the state of emergency plus 45 days. Governor Baker proclaimed the state of emergency on March 10, 2020, and his proclamation does not have an end date.

Even when Governor Baker does announce an end to the state of emergency, the Legislature could still amend the statute to extend the length of the moratorium.

Does the moratorium ban all evictions?

No, it allows housing providers to file summary process complaints where a tenant’s criminal activity or lease violation “may impact the health or safety” of another person. It prohibits no-cause evictions and evictions for nonpayment of rent.

In order for the court to accept a summary process summons and complaint, Standing Order 5-20 requires that the housing provider or attorney also file an affidavit swearing that the case qualifies as an “essential eviction” under Chapter 65, i.e. that it is based on a tenant’s criminal activity or lease violation “may impact the health or safety” of another person.

Q. Does the moratorium allow landlords to send notices to quit?

Yes, so long as the notice is for a tenant’s criminal activity or lease violation that “may impact the health or safety” of another person. Chapter 65 prohibits all other notices to quit, e.g. for nonpayment of rent. It also bans any notices that demand or request that a tenant vacate the premises. Landlords should take care not to write anything that could be construed as a request to vacate. For what to write in missed-rent notices, read on.

Q. Does the moratorium allow landlords to charge a late fee?

No, not if within 30 days after the missed rent payment the tenant gives the landlord a notice stating that the non-payment of rent was due to a financial impact from COVID-19. State government has published a notice for tenants to use.

 

Q. Does the moratorium allow a landlord to send notices of missed payments?

Yes, and landlords should do so, but the executive office of housing and economic development has issued regulations that specify what the notice must say including the following statement, which must appear on the first page.

“THIS IS NOT A NOTICE TO QUIT.  YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME.  An emergency law temporarily protects tenants from eviction during the COVID-19 emergency.  The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord. For information about resources that may help you pay your rent, you can contact your regional Housing Consumer Education Center.

For a list of agencies, see https://www.masshousinginfo.org/regional-agencies.

Additional information about resources for tenants is available at https://www.mhp.net/news/2020/resources-for-tenants-during-covid-19-pandemic.

You will not be subject to late fees or a negative report to a credit bureau if you certify to your landlord in writing within 30 days from the missed payment that your non-payment of rent is due to a financial impact from COVID-19.  If possible, you should use the approved form at: https://www.mass.gov/lists/moratorium-on-evictions-and-foreclosures-forms-and-other-resources.  If you cannot access the form on this website, you can ask your landlord to provide the form to you.  You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.”

Landlords should also include the following, “This is important notice. Please have it translated.” The State government notice for tenants (see above) contains translations of that statement in 10 languages:

THIS IS AN IMPORTANT NOTICE. PLEASE HAVE IT TRANSLATED.

Questa é una notizia molto importante. Per piacere falla tradurre.

Este es un aviso importante. Sírvase mandarlo traducir.

C’est important. Veuillez faire traduire.

ĐÂY LÀ MỘT BẢN THÔNG CÁO QUAN TRỌNG.

XIN VUI LÒNG CHO DỊCH LẠI THÔNG CÁO NÀY.

Este é um aviso importante. Por favor mande traduzi-lo.

Es ê un avizu importanti. Di favor, manda traduzil.

Se yon anons ki enpòtan anpil. Sou Ple, fè tradwi li pou w.

Σπουδαιε Πληροφορεια − Παρακαλω να το µεταφρασετε.

MassLandlords has a sample notice available for members. Landlords should not send missed-payment notices that fail to comply with the regulations.

Q. Is Chapter 65 constitutional?

Some people believe that by prohibiting owners from going to court to try to regain possession of their property Chapter 65 violates the constitutional guarantee of access to justice, and that by requiring owners to provide housing with no guarantee of payment it may operate as a taking without compensation. Neither the Legislature nor the Governor asked the Supreme Judicial Court for an advisory opinion prior to enactment, and so far there are no judicial decisions one way or the other.

Q.  If landlords wish to seek compensation for the alleged taking, what law could they rely on?

For owners whose real estate the Commonwealth has taken for public use during a state of emergency, the Civil Defense Act of 1950 sets forth the steps to follow. In a nutshell, the Act allows aggrieved property owners to file claims in Superior Court. Potential claimants should note the one-year statute of limitations.

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Peter Vickery, Esq.

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