August 17, 2023:- The Massachusetts Legislature has restored and made permanent a law that puts nonpayment eviction cases on hold if the tenant applies for rental assistance, e.g. RAFT. It adds a new section 15 to chapter 239 of the General Laws. To read the new law, click here.
How does the law work? When tenants stop paying rent, the landlord sends a notice to quit for nonpayment of rent together with a State government form called the Form to Accompany Residential Notice to Quit. This form informs the tenants (in all capitals) that the notice to quit is not an eviction and they do not need to leave.
Some people, when they receive a government document that declares
THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT
conclude that the notice to quit is not an eviction, and they do not need to immediately leave.
If the tenants do not leave and do not pay the arrears, the landlord starts a summary process (eviction) case by having the sheriff serve a legal document called the summary process summons and complaint. A few weeks after the landlord files the case, the Housing Court will schedule an opportunity to mediate. This is called the First-Tier Event.
The court gives the landlord a notice of the First-Tier Event, which the landlord must pay the sheriff to serve on the tenants. The notice contains information about how to file an answer to the summary process complaint, including links to an online service that Greater Boston Legal Services created (with help from City Life/Vida Urbana and the court) that guides tenants through the process of preparing an answer, replete with defenses and counterclaims.
At the First-Tier Event, if one party does not want to mediate or if mediation happens but does not produce an agreement, the court schedules a trial. By the time of the mediation, the tenants are supposed to have filed an answer to the complaint.
On the day of trial, the tenants can put the brakes on the case by submitting an application for rental assistance. Unless and until the rental-assistance administrator approves or denies the application, the judge cannot enter judgment or issue execution. The case goes into suspended animation.
But as the people who passed this law know perfectly well, a large proportion of rental applications result in neither an approval nor a denial; they simply time out.
Time outs
Administrators deem applications timed-out for a variety of reasons, e.g. the tenants did not submit a copy of the lease, or they did submit a copy but it got lost in the system, or the landlord did not submit a copy of the ledger showing the amount of the arrears, or the landlord did submit the ledger but by the time the administrator got round to processing the application the ledger was out of date. There is nothing rare about time-outs.
So how does section 15 provide for the time-out scenario? It doesn’t. This means that landlord lawyers will bring motions arguing that a timed-out application means that the case can go forward. The tenants’ lawyers will oppose those motions arguing that the word “denied” means denied, not timed-out. Judges will have to decide whether the time-out is the functional equivalent of a denial (so that the case can proceed) or not (meaning the case remains on ice). A patchwork of decisions emerges across the different divisions of the Housing Court — sometimes even between the judges within one division — and uncertainty and unpredictability ensue until an appellate-level court resolves the matter.
Say hello to the new law, same as the old law
Section 15 is a law that the Legislature originally enacted to help prevent people losing their homes as a result of the governmental response to COVID-19. It was a policy response to three earlier policies (measures with perfectly foreseeable consequences) namely (1) Governor Charlie Baker’s decision to close “non-essential” businesses in 2020 thereby causing mass unemployment; (2) the partial eviction moratoria that President Trump and the Massachusetts Legislature imposed at the federal and State level, which prevented landlords from going to court to seek rent; and (3) the decision by Congress to print/borrow money at a hitherto unimaginable scale thereby reducing the value of the dollar.
Together these three policy choices ensured that the cost of rental housing would rise and that people whom policymakers had impoverished would be unable to afford their housing. Putting eviction cases on hold while tenants apply for rental assistance, which they could have applied for before the landlord started eviction proceedings, adds to the average cost of a nonpayment eviction case. Bear in mind, while the eviction case is on ice, the landlords’ costs continue to accrue; landlords still have to maintain the premises up to Code, pay their employees, and meet their other obligations. Landlords have to keep the premises up to Code and pay their other bills and taxes. They also need to pay their lawyers, and longer cases mean higher legal fees.
How do landlords manage cost increases of this kind? Like other businesses that provide a service, when costs go up they increase the price of the service. They raise the rent.
The previous incarnation of section 15 expired earlier this year. By then, in combination with the other measures that policymakers inflicted on us in 2020-23, it had worked its magic. Housing had become less affordable and many smaller landlords had left the rental-housing business by either taking their properties off the market or selling to larger entities with more capital and better political connections.
Now, having devoted much effort to driving smaller landlords out of business and pushing up the price of rental housing, Beacon Hill leaders want you to help solve the problem by becoming an amateur landlord. Yes, seriously.
Your very own Open Door policy
Earlier this month, Governor Maura Healey declared a state of emergency to address the sudden influx of people who are arriving in Massachusetts in search of, inter alia, free housing. The shelters are full, and apparently there is a dearth of affordable housing in Massachusetts.
According to several media reports, including Boston 25, Lt. Governor Kim Driscoll said, “if you have an extra room or suite in your home, please consider hosting a family.”
When you invite someone else to come live in your home, and you obtain something of value in return (e.g. they help out around the house) you become a landlord. After they move in and you, for whatever reason, come to regret your decision and politely request that your tenants find somewhere else to live but they decline to do so, you will need to go to court.
This is the situation that the Governor and Lieutenant Governor, with their shameless appeal to altruism, are asking you to put yourself in.
On the bright side, right now at least they’re just asking. As I write this, they have still not passed a Quartering Act, which means that your State government is not yet requiring you to open up your door and play host to strangers. But remember, by declaring a state of emergency Governor Healey arrogated to herself the same powers that her predecessor deployed with such care and foresight from March 2020 onward (forgive my sarcasm). So stay tuned.
Photo by Zulian Firmansyah on Unsplash
Peter Vickery, Esq., 