April 21, 2023:- Massachusetts now requires landlords who are serving notices to quit for nonpayment of rent to also serve a document called the Form to Accompany Residential Notice to Quit.
Like the old Attestation Form, which landlords no longer have to serve, the new form states in all caps:
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT.
YOU ARE ENTITLED TO A LEGAL PROCEEDING IN WHICH YOU CAN DEFEND AGAINST THE EVICTION.
ONLY A COURT ORDER CAN FORCE YOU TO LEAVE YOUR UNIT.
That’s the important part, I think, from the Legislature’s point of view, and, to be fair, it is an accurate statement of the law. Of course, it would also be an accurate statement of the law to say “landlords are entitled to receive rent,” but the form does not include anything to that effect.
No checkbox for covered dwellings under the CARES Act
The new form differs somewhat from the Attestation Form, which required the landlord to tell the tenants whether the property was a “covered dwelling” under the federal CARES Act. The new version does not have a checkbox for that, although it does include the following paragraph that advises the tenants:
If you live in a building with five or more units, or if you receive a HUD tenant-based voucher, you may have more federal protections. If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then your Landlord may be required to give you written notice at least 30 days before filing an eviction claim.
The document titled “Instructions for Landlords” offers landlords who are completing the form the following helpful advice:
If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then you may be required to give your tenant written notice at least 30 days before filing an eviction claim. You should use diligent efforts to determine whether your housing unit is a “covered dwelling” under the CARES Act, and whether the notice to quit complies with the CARES Act notice requirements.
Using diligent efforts to find out whether it is necessary to give 30 days’ notice as opposed to 14 days’ notice is a very good idea, because failing to give sufficient notice could result in the judge dismissing the summary process case and the landlord having to start all over again with a new notice to quit. This could happen some months after the landlord served the notice to quit, during which time the tenants will probably not have been paying rent.
A new checkbox
Instead of a checkbox requiring the landlord to tell the tenants whether they are entitled to a 30-day notice to quit, the new form has a checkbox by which the landlord tells the tenants whether they (the landlord and the tenants) have entered into any agreements about paying the overdue rent. In my experience, people who enter into agreements tend to know about it, but the drafters of this form may have had completely different experiences. In their experience, perhaps, people enter into agreements by accident all the time and never even notice.
The State seems to base this requirement — that the landlord inform the tenants whether they have entered into any agreements with the landlord — on the assumption that the tenants would not already know whether they had entered into any agreements with the landlord. Why the State would assume such a degree of ignorance on the part of people who are tenants is beyond me. As I said, perhaps the life experience of the State employees who drafted the form is completely different from my own. On the other hand, they may just be condescending.
No “covered dwelling” checkbox
Anyway, that is what the new checkbox is for, so that landlords can tell tenants something they already know. Gone is the old checkbox that required landlords to tell tenants something that they might not already know, i.e. whether the property is a “covered dwelling” within the meaning of the federal CARES Act.
Requiring landlords to check a box stating whether the building was a “covered dwelling” tended to encourage landlords to find out ahead of time, or to err on the side of caution and give 30 days’ notice even if the tenants were only legally entitled to 14 days’ notice.
Dispensing with the “covered dwelling” checkbox removes that incentive and thereby increases the likelihood that some landlords who should give 30 days’ notice will give only 14 days’ notice. Those landlords are more likely to have their eviction cases dismissed.
Readers disposed towards suspiciousness may sense a familiar tingle.
Affidavit of Compliance
In addition to the new form, there is one more document worth noting. After the notice to quit has expired and the tenants have still not paid the arrears, the landlord will need to commence summary process (eviction) proceedings. When filing the case, the landlord has to include an affidavit confirming that the landlord did indeed serve the Form to Accompany Residential Notices to Quit.
Conclusion
Landlords serving notices to quit for nonpayment of rent need to remember to: (1) determine whether the property is a “covered dwelling” and how much notice is necessary; (2) complete the form; and (3) include the completed form with the notice to quit. When filing the case in court, landlords need to file the affidavit along with the summons and complaint and the notice to quit.
Peter Vickery, Esq., 