January 21, 2021:- Yesterday President Biden extended the CDC’s eviction moratorium through March 31, 2021. For the Forbes article click here. For the CDC order itself, click here.
Housing providers in Massachusetts who take tenants to court for nonpayment of rent have to file an affidavit swearing that they have not received a CDC declaration from the tenants. In any event, even if the CDC moratorium does not cover the tenants in question, under a state law that was tacked on to the budget (Chapter 257 of the Acts of 2020) in nonpayment cases judges are not allowed to enter orders for possession or issue executions if the tenants have a pending application for rental assistance.
Under Chapter 257, housing providers who send tenants notices to quit for nonpayment of rent have to also give the tenants a form stating that the tenants do not have to leave:
“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.”
They also have to send the Commonwealth a copy of the notice to quit via an online portal. Later, when filing the case in court, housing providers have to submit a sworn statement (another form) confirming compliance. This is in addition to the CDC affidavit and (if e-filing) an affidavit confirming compliance with the e-filing rules.
What does this mean in practice? Nonpayment cases involve more paperwork and take longer.
December 28,2020, Washington, DC:- Yesterday President Trump signed the Consolidated Appropriations Act for 2021 (H.R. 133) which, among many other things, extends the federal Centers for Disease Control (CDC) moratorium on some evictions. The CDC eviction moratorium is now set to expire January 31, 2021.
For the House summary, click here and scroll down to page 22.
October 6, 2020:- The Housing Court has issued a new standing order (SO 6-2) that will govern pending and newly-filed summary process cases if the eviction moratorium expires on October 17 (and if the Legislature does not impose a new one).
I will provide a synopsis in a future post. In the meantime, housing providers should note that:
(1) for default judgments entered after March 1, the Housing Court is allowing all motions to remove the default;
(2) for already-filed cases summary process cases the Clerks will be sending out scheduling notices for conferences with Housing Specialists;
(3) for new summary process cases, the owner/attorney who completes the summons and complaint should not insert a trial date (write TBD instead); and
(4) because the CDC moratorium order is in effect, the Housing Court will provide an affidavit for housing providers to use in order to tell the Court whether the renters gave them the declaration that the CDC order requires.
October 2, 2020:- They say a week is a long time in politics. But a whole year is not, apparently. And a whole year beyond the expiry of the state of emergency is how long the next eviction moratorium will last if the Joint Housing Committee of the Massachusetts Legislature gets its way.
Under the new proposal, which now goes to Ways and Means and the Legislature as a whole, housing providers whose renters stop paying rent would be able to apply for a tax credit to cover the arrears “subject to availability.”
The term “subject to availability” does not sound like much of a guarantee and, sure enough, this article in CommonWealth Magazine quotes one of the sponsors as saying that the “funding structure is something intentionally left out.”
So they left it out on purpose. Thank goodness they didn’t just forget.
September 28, 2020:- Another small victory for freedom of expression in Massachusetts, again from a Federal judge rather than the State courts. The key point? Housing providers should not have to promote organizations that seek to strip away their rights.
In the case of Baptiste v. Kenneally, the U.S. District Court did not grant the plaintiffs an injunction against the Commonwealth’s eviction moratorium, but did find that the regulations issued under it impermissibly burden free speech.
In April, the Massachusetts Legislature enacted Chapter 65 (the eviction moratorium) which prohibits landlords from sending notices to quit, but allows them to send missed-payment notices stating how much the tenants owe.
Then the executive branch issued emergency regulations (with no notice-and-comment period) that tell housing providers what to say in these missed-payment notices, including a link to certain “resources.” The “resources” include Massachusetts Housing Partnership, which in turn links to the advocacy group City Life/Vida Urbana, the taxpayer-funded nonprofit corporation* that campaigns for measures that are (I will put this mildly) not entirely consistent with the constitutionally-guaranteed right to possess and enjoy private property, e.g.
“We will fight for legislation to protect and expand rights for all working-class renters and homeowners, including RENT CONTROL, RIGHT TO COUNSEL, and an EVICTION SEALING ACT. We’ll actively support efforts to make corporate developers pay for these initiatives through a TRANSFER FEE on the sale of luxury development” (all caps in original).
That quote is from the page on the corporation’s website titled Our Work. All those measures are diametrically opposed to the interests of housing providers, and members of the statewide organization MassLandlords have consistently voiced their opposition to them.
On September 25, Judge Mark L. Wolf held that the State government regulations infringe the speech rights guaranteed by the First Amendment.
[T]he court finds that plaintiffs are likely to prevail on their claim that the second paragraph of 400 C.M.R. §5.03(2) unconstitutionally compels speech by requiring plaintiffs to include in any notice of rent arrearage addresses of non-governmental websites that, in turn, refer tenants to tenant advocacy groups, including City Life/Vida Urbana, with interests adverse to plaintiffs’.
The judge went on:
“[I]t is a fact that organizations like City Life/Vida Urbana provide legal services to tenants who want to resist being evicted, they also engage in other activities including, among other things, advocating for legislation that restricts landlords’ rights to evict, and litigating against them.”
The judge explained that State government should not compel landlords to endorse and promote these activities, and that compelled speech of this sort would not survive intermediate scrutiny let alone strict scrutiny.
This part of the decision represents a welcome victory for free speech in the Federal District Court. What a shame the State-level courts in Massachusetts so rarely evince a similar regard for that right.
*The corporation’s legal name is Urban Revival, Inc. and according to its Form 990 (2017) its mission/significant activities are “racial/ethnic harmony through affordable housing and economic development,” which is more succinct than (and different in tone from) the mission statement on its website:
“City Life/Vida Urbana is a grassroots community organization committed to fighting for racial, social and economic justice and gender equality by building working class power. We promote individual empowerment, develop community leaders and build collective power to effect systemic change and transform society.”
P.S. A note about my choice of image, which illustrates the idea of the mailed fist in the velvet glove. When I write about compelled speech, I like to offer a reminder about who it is, exactly, that is doing the compelling. If ever you disobey a law, you risk an encounter with agents of the only organization in society that (as Max Weber pointed out) claims a monopoly on the legitimate use of violence, namely the government. If you refuse to do what the government tells you to do, or you refuse to speak the words that it demands that you utter, eventually you will come into contact with the government’s agents, people who wear uniforms, carry weapons, and have the power to alter your condition from free to un-free and from alive to dead.
September 18, 2020:- The New Civil Liberties Alliance lawsuit against the CDC eviction moratorium order (Brown v Azar) argues, among other things, that the agency’s order flies in the face of the non-delegation doctrine. This is the doctrine that says that the legislature cannot delegate its authority to the executive because doing do would violate article 1, section 1 of the Constitution of the United States, which vests all legislative power in Congress. It is supposed to help keep each branch of government in its own lane.
I find it hard to see how this particular argument can fail.
There is no doubt that the authority to establish a nationwide eviction moratorium lies (if anywhere) with Congress. To find evidence to support this, we do not have to look very far. In fact we only have to look back as far as April 2020, when Congress passed the CARES Act, section 4024 of which established a nationwide eviction moratorium.
If any branch of the federal government has the authority to bar property owners from going to court to seek the return of their own property, which is by no means certain, it is Congress. By imposing an eviction moratorium of its own, the CDC, an executive branch agency, is usurping the power that the Constitution vests exclusively in Congress.
September 9, 2020:- The New Civil Liberties Alliance filed a complaint that challenges the constitutionality of the CDC’s order that purports to ban evictions nationwide. For the press release, click here.
The organization is also seeking a temporary restraining order to prevent Health & Human Services Secretary Alex Azar implementing the order. My opinion, for what it’s worth, is that the CDC order exceeds the agency’s authority by a country mile. Stay tuned for updates.
September 8, 2020:- Quite properly, Attorney General Maura Healey is cracking down on wage theft, according to this article on MassLive. Wage theft is where a worker provides a service but does not get paid.
It’s a shame that housing providers who provide housing without getting paid can’t look to the Attorney General for help.
September 2, 2020:- Imagine they passed a law saying that you’ve got to go to work every day of the year, and if the company doesn’t pay your wages, that’s just too bad. You can’t sue them. You can’t go on strike. You can’t even quit.
I have a client who is in a position something like that.
She works as a housing provider, in addition to her day job as a nurse. She owns her own home and one other house that she bought in order to rent it out. Her goal was to use the rental income to pay the bank, and then (when she’d paid off the mortgage) start making a profit.
“It was supposed to be my 401(k),” she told me.
Not a 401(k)
That’s not how it turned out. In November 2019, the tenant (then, as now, unemployed) stopped paying rent, so my client started summary process (eviction) proceedings in Housing Court. But then the Legislature and the Governor passed Chapter 65, the partial eviction moratorium, which prohibits the courts from moving forward with non-payment cases even if the reason for non-payment has nothing to do with COVID 19 or the state government’s job-destroying, livelihood-wrecking response to it.
So the summary process case is suspended until the moratorium expires, which could be in October or might be in January if the Governor chooses to extend it. Or it could be even later; who knows.
When the case emerges from limbo, it will be one among thousands waiting for a judge to hear it. In the meantime, is there anything my client can do to try to get paid? At this point, the rent arrears are somewhat north of $8,000, by the way.
Two attorneys brought a constitutional challenge to the partial eviction moratorium, namely Jordana Rubicek Greenman and Richard Vetstein. For details of the lawsuit, check out Attorney Vetstein’s blog.
I wrote an amicus brief for MassLandlords, and watched the oral argument before Superior Court Judge Paul Wilson online. In the course of the argument, Attorney Vetstein made the point that the moratorium is barring the courts to one class of litigants, i.e. landlords. Not so, responded counsel for one of the tenants’ organizations who said that the courts aren’t barred because landlords can still sue tenants for breach of contract.
In his order denying the request for a preliminary injunction, Judge Wilson said the same thing: “[T]he economic effect on landlords is mitigated not only by their ability to sue non-paying tenants for breach of contract, but by the temporary nature of the moratorium.”
Could that really be a viable route, I wondered? Could landlords, who can’t use summary process for the foreseeable future, sue for breach of contract? The client I’m writing about here agreed to try.
Breach of contract case
On her behalf, I filed a simple breach of contract case in Housing Court. The tenant’s (taxpayer-funded) lawyer filed a motion to dismiss under Rule 12(b)(9) of the Massachusetts Rules of Civil Procedure on the basis that my client can’t have two cases about the same issue going at once.
Fair enough, you might say, why not just dismiss the summary process claim? Dismissing a case where the other side has filed counterclaims (which happened here) requires a motion that a judge has to rule on, and the partial eviction moratorium prohibits the courts from scheduling a court event.
More importantly, if my client did dismiss her summary process case, in order to regain possession of her house when the moratorium expires she would have to start all over again. She would be at the back of a line. A very long line.
Regarding those counterclaims that the tenant filed: Are there two sides to this story? Obviously.
But what if (after the moratorium expires) a judge, after hearing all the evidence, decided that even if some of the counterclaims were valid, the tenant owed my client, say, 75% — or even 50% — of the rent that had built up since November 2019? Does anyone really believe that the unemployed tenant will be able to pay several thousand dollars?
Anyway, we had a hearing, and the judge took it under advisement. When the court issues the decision, I will post an update.
No names, no pack drill
This story is far from being the most extraordinary that I have heard in the last few months. This one seems worth telling today, now that the federal government has established a nationwide eviction moratorium and there is some wider public discussion of the administration’s proffered justification and the likely impact.
My client gave me permission to tell her story online, but I decided not to use her name or other identifying information because you know how things are these days.
Like the tenant, she is a real person. She deserves some consideration from policymakers, and from the people who are supposed to hold them to account, i.e. the electorate.
She has to pay to maintain the property and keep it up to code. The tenant won’t pay rent, and has not applied for the subsidies that are available to cover the rent. But without the tenant applying, my client can’t get access to those subsidies.
So my client doesn’t want to be a landlord any more, obviously. But she doesn’t have a choice. She can’t get paid, and she can’t even quit.
September 2,2020:- Yesterday the Centers for Disease Control & Prevention (CDC) issued an order prohibiting evictions. For the fact sheet from the White House, click here. Before going any further, let me quote a pertinent passage:
“This Order does not apply in any State… with a moratorium on residential evictions that provides the same or greater level of public health protection than the requirements listed in this Order.”
If “public health protection” means eviction moratorium, then (assuming Governor Baker extends the moratorium through the end of 2020) the federal order would not apply in Massachusetts. The partial eviction moratorium here is much broader than the CDC’s.
Readers who care about old-fashioned concepts like law might be wondering, “what is the statutory authority for this order?” The agency cites section 361 of the Public Health Services Act.
As for whether the order is lawful and constitutionally sound, perhaps someone will sue and ask a judge to decide.
In terms of common sense, do the circumstances justify the order? I offer two screenshots from the CDC, and ask you to decide for yourself. The first screenshot is from the order. The second is from the agency’s recent provisional weekly COVID 19 death count. I urge you look at the full document.
If you have an opinion to share, please use the form that appears below screenshot 2.
August 26, 2020:- Today Suffolk Superior Court Judge Paul D. Wilson declined to issue a preliminary injunction against the Massachusetts eviction moratorium. Ruling that the moratorium does not amount to an uncompensated taking because “it does not deprive Plaintiffs of all economically viable use of their land” the judge also pointed out something that housing providers may find helpful:
[T]he economic effect on landlords is mitigated not only by their ability to sue non-paying tenants for breach of contract, but by the temporary nature of the moratorium.
For the purposes of seeking a remedy in the here and now, it is the first part of the sentence that merits attention. Picking up on a point that representatives of the tenants’ bar raised in oral argument, Judge Wilson statement suggests that even though they cannot start summary-process actions, landlords can still sue non-paying tenants for breach of contract.
July 30, 2020:- Perhaps I am a slow learner. But I think I just realized something important about the eviction moratorium.
Those following the Matorin v. EOHED case challenging Chapter 65 (the eviction moratorium) will know that earlier today the Superior Court held a hearing on the plaintiffs’ motion for a preliminary injunction.
What struck me while I was watching the oral argument was the size of the gap between the law’s supposed purpose and its actual effect. Then I realized that there is a gap between the two sides over the nature of the very thing they are arguing about, i.e. evictions. I will explain what I mean in a moment, but first a very brief explanation of a key term, namely “execution.”
In Massachusetts, only a judge can evict a tenant and award the housing provider possession of the rented premises. If, after trial, the judge decides to award the housing provider possession, the housing provider has to wait 10 days and then ask for a document called the writ of execution. This is the document that authorizes the sheriff or constable to physically remove the renters and their belongings. When the sheriff does so, it is called levying.
When non-lawyers think about evictions, what they have in mind is the event called levying the execution. It is quite rare, fortunately.
Before the constables or sheriffs can even get their hands on an execution to levy, the renters can ask the judge for a stay, i.e. a pause or delay. The law allows judges to stay execution for up to six months (12 months, if the renters have disabilities or are age 60+).
Rule 13 of the Uniform Rules of Summary Process lays out the steps.
Now back to the argument over Chapter 65.
How to stop executions
The proponents of Chapter 65 argue that the Legislature enacted the eviction moratorium in order to stop people being made homeless during the COVID 19 pandemic. If that had indeed been the real purpose, the Legislature could have achieved it by banning the courts from issuing executions and prohibiting the sheriffs from levying on any executions already issued. Here is the bill the Legislature could have enacted:
In any summary process case, the court shall not issue execution, and no person shall levy execution, until 45 days after the end of the state of emergency.
But the Legislature chose not to do that. Instead of banning the thing that non-lawyers think of as evictions (levied executions), it banned housing providers from even getting into court. And that, in turn, bars access to the trained Housing Court mediators who resolve disputes and help the parties work out payment plans.
If the Legislature and Governor had defined the problem they were trying to solve, they would not have created the unholy mess that will confront so many housing providers and renters when the moratorium finally ends. Defining problems before attempting to solve them is a big part of the job. And, unlike some of the housing providers I represent, the legislators are actually getting paid. Legislative salary moratorium, anyone?
As for the hearing in the Matorin case, the judge took the matter under advisement, which means that he will issue his decision at a later date. To stay up to date, and to read more about the case from Attorney Richard Vetstein, who is one of the two lawyers representing the Matorin plaintiffs, click here.
July 27, 2020:- What if the law forced you to go to work every day and then, if the boss refused to pay your wages, prohibited you from suing? Imagine having to provide the service, and not being able to make the other side stick to their end of the deal.
All work and no pay isn’t fair. But that’s the situation confronting many housing providers in Massachusetts right now. The law requires them to house their tenants even if the tenants can’t — or won’t — pay rent.
As if that weren’t bad enough, a bill that would flat out cancel the rent had garnered much support in the Massachusetts State House. Even as I write, an effort is underway to tack the proposal (together with the tried-and-failed policy of rent-control) onto another bill by way of amendments.
But it has not become law yet.
There is still time to tell your state representatives and senators what you think. The deadline is 12 noon tomorrow, Tuesday, July 28, 2020.
To submit your testimony on H4878/S2831 click here.
July 23, 2020:- The federal Department of Housing and Urban Development (HUD) has published a new rule about affirmatively furthering fair housing. It defines what the term “affirmatively further fair housing” actually means and makes it easier for communities to show that they are, indeed, doing just that (i.e. affirmatively furthering fair housing). This new rule replaces an old rule.
In 2015 President Obama’s HUD adopted a regulation that required towns and cities to explain in detail how their zoning, land use laws, and services such as public transportation were affirmatively furthering fair housing. This article from the Atlantic magazine describes the rationale for the Obama administration’s decision.
In 2018, citing the time-and-cost burdens that the rule-mandated assessment tool put on local governments, HUD Secretary Ben Carson suspended it. Several organizations, including the ACLU and the National Fair Housing Alliance, went to court in an unsuccessful effort keep the 2015 assessment tool in place. According to this ACLU statement, suspending it “puts housing integration in serious jeopardy.”
The State of New York joined the lawsuit. For Governor Cuomo’s announcement about the case click here. For a brief account of New York City’s track record as landlord from the National Apartment Housing Association click here. For another revealing story about affordable housing in New York, click here.
Several other States (including Massachusetts) and some cities (including Oakland, California; Portland, Oregon; and Seattle, Washington) signed on to an amicus brief in support of the effort to stop Secretary Carson suspending the 2015 rule. The new rule that Secretary Carson announced would seem to moot the case.
The new HUD rule about AFFH does not affect the need for local governments to avoid policies that have a disparate impact on protected classes, a form of discrimination that the Supreme Court of the United States recognized in Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) and that the Massachusetts Supreme Judicial Court recognized in Burbank Apartments Tenants Ass’n v. Kargman, 474 Mass. 107, 122 (2016). To browse the SCOTUSblog material on Inclusive Communities click here. For Secretary Carson’s National Review article on the decision and its implications for HUD’s 2013 disparate-impact rule, click here.
My own post from 2013 discusses the disparate-impact rule that HUD had adopted prior to the SCOTUS decision in Inclusive Communities and the rule’s potential to address racially segregated housing and schooling patterns in an around Springfield, Massachusetts. In the 7 years since I wrote that post, I have not heard of any real progress on that front. If you know of some positive steps or have practical suggestions, please share them.
What should State and local government do (or not do) here in Massachusetts in order to reduce racial segregation in housing? If you have success stories or a policy proposal, I would like to hear from you.
July 21, 2020:- Today Massachusetts Governor Charlie Baker informed the Legislature of his decision to extend the eviction moratorium to October 17, 2020. His letter includes the folowing:
I am aware that the extension I am declaring today will impact many small landlords who rely on rental income to pay their own expenses. I strongly encourage tenants to continue to pay rent, and homeowners to make their mortgage payments, to the extent they are able while the moratoria remain in place. The Baker-Polito Administration already has made available $20 million in emergency rental and mortgage assistance to help lower-income tenants and homeowners make their housing payments. Between now and October 17, my administration will assess whether additional federal and state resources should be made available for this purpose. We also will be working closely with our colleagues in the judicial branch to ensure that when evictions proceedings resume there are programs in place to help tenants pay their rent and avoid eviction.
What began as an emergency stop-gap in the Spring will continue at least until the Fall.
July 9, 2020:- Housing providers have been asking whether the Massachusetts eviction moratorium is an uncompensated taking. The short answer: For some housing providers, yes, the moratorium operates as a taking. Here’s what I mean.
Right to exclude
Some years ago, the Supreme Court of the United States held that when the government takes away a property owner’s right to exclude other people from their property, the government has, in a sense, physically invaded the property. Nollan v. California Coastal Commission, 483 U.S. 825 (1987).
When tenants do not pay rent and the Commonwealth is prohibiting the housing provider from asking a judge to evict them, the Commonwealth is preventing the housing provider from excluding others (i.e. the tenants) from the property.
To that extent, where owners are barred from obtaining vacant possession (so that they can rent to somebody else or sell the property), the moratorium resembles a taking.
Hence the choice of image, by the way. What the Commonwealth is doing through the eviction moratorium is this: It is stopping owners from even trying to get possession of their own property. It is as if the Commonwealth had put a padlock on the door to the rental unit and given the one and only key to the tenant.
Compelled to admit
Nollan was decided when I was an undergraduate at Oxford University, and that (according to the calendar) was a while ago. More recently, the Supreme Court considered a case in which a property owner (Rose Mary Knick) had a family cemetery on her land, which the town government required her to make open to the public during the hours of daylight. Because the town was forcing Ms. Knick had to admit strangers to her property, even if she did not want them there. Knick v. Township of Scott, 139 S.Ct. 2162 (2019).
The specific issue that the Supreme Court decided was whether Ms. Knick should have tried state court first before federal court (no was the answer) but the case also illustrates the kind of government action that can amount to a taking, i.e. where the government compels owners to let other people use their property.
Today in Massachusetts, the Commonwealth is requiring housing providers to allow other people to use their property without paying for it. It’s the nonpayment part that makes life difficult for an increasing number of housing providers. As for that threshold issue of whether the situation can amount to a regulatory taking that warrants compensation from the Commonwealth, I believe that the answer is yes.
Do you own a rental unit where the tenant has stopped paying rent, and do you want to try to obtain compensation from the Commonwealth?
June 30, 2020:- Housing providers in Massachusetts may want to prepare for a referendum campaign. A new legislative proposal, HD 5166, would cancel the rent, make Housing Court cases secret, and extend the eviction moratorium for 12 months after the end of he state of emergency.
What do I mean by “cancel the rent”? After the end of the eviction moratorium–when rental-property owners would finally be allowed access to the courts again for nonpayment cases–the onus would be on the housing provider seeking unpaid rent to prove that the reason for nonpayment was not connected in some way to the emergency. That is an almost insuperable burden. Bear in mind, more than a year’s worth of rent could have accrued by that stage.
That aside, the bill is largely a grab-bag of previously filed proposals (e.g. eviction sealing and “just cause eviction”) repackaged as a response to the pandemic. If enacted it would so destabilize the market as to render the rental-housing business non-viable for all but the biggest (and most politically wired) landlords. So the bill title, “An Act to guarantee housing stability during the COVID 19 emergency and recovery,” is beyond parody.
Because of its emergency preamble, the bill, filed by State Representatives Mike Connolly and Kevin Honan (House Chair of the Joint Committee on Housing) with more than 20 co-sponsors, would go into effect immediately and the first 10 signatures necessary to start the referendum process would be due within 30 days.
Unfortunately, this proposal seems deliberately designed to destroy most private rental housing in Massachusetts thereby reducing the options for tenants to a choice between (a) big corporate landlords and (2) government housing. On the other hand (and trying hard to be optimistic and giving the politicians the benefit of the doubt) perhaps it’s just a milker bill (also known as a fetcher or juice bill).
Whatever the proponents’ aims, if this bill becomes law the only realistic way to rescue private rental housing (and preserve meaningful choice) is the referendum. Click here for referendum basics. In the meantime, please call your State Representative and Senator and ask them to take a stand against this bill.
June 30, 2020:- The eviction moratorium will expire in mid-August, unless Governor Baker prolongs it. Unfortunately according to this story in MassLive and this Tweet (below), Representative Kevin Honan is urging the Governor to extend the moratorium. I would not worry about a state representative weighing in but for the fact that this one is House chair of the Joint Committee on Housing and, therefore, somebody to whom the Governor might be inclined to listen.
For my argument as to why the Governor should let the moratorium expire (principally its negative impact on affordable housing) click here.
June 17, 2020:- An eviction moratorium that applies to some properties (those with FHA-insured mortgages) just got extended, as this mortgagee letter from the Department of Housing and Urban Development (HUD) and this FHFA news release explain.
The decision does not mean that the broader federal eviction moratorium is being extended (only Congress can do that) or that the Massachusetts moratorium is being extended (only the Massachusetts Governor can do do that, or — if it decides to amend the eviction-moratorium statute — the Legislature). The moratorium in question is one of three that may apply to your property if you are a housing provider in Massachusetts.
Before the Chapter 65 eviction moratorium there was the CARES Act eviction moratorium and before the CARES Act eviction moratorium there was the HUD eviction moratorium. Under Chapter 65, the eviction moratorium and ban on issuing notices to quit will expire on August 18, unless the Governor extends the moratorium by 90 days.
There is some overlap between the federal and State moratoria, so that even if the Massachusetts moratorium expires on August 18, a housing provider may still not be able to go to court for unpaid rent, or even terminate the lease by way of a notice to quit, if the tenant lives in a property financed by an FHA-insured mortgage. It’s all a bit of a jigsaw puzzle.
Takeaway: Housing providers in Massachusetts should not assume that after August 18 they will be able to issue non-paying tenants with notices to quit.
June 15, 2020:- Before the Massachusetts Legislature imposed an eviction moratorium, Congress enacted a limited moratorium of its own. It lasts 120 days and is confined to properties participating in federal programs including, at the very outer edge, properties with federally-backed mortgage loans. CARES Act, section 4024 (page 574 of the PDF). The 120-day period started running on March 27 so expires on July 25. Democrats in Congress want to not only extend the duration of the moratorium but also expand it to cover all rental properties.
The bill that passed the House (where the Democrats have a majority) and is currently before the Senate (where the Republicans have a majority) is titled the HEROES Act.
The name is apt. Just reading the bill requires a degree of fortitude bordering on heroism. It consists of 1,815 pages that explain how the federal government should go about spending $3 trillion (trillion with a T), a sum that even nowadays seems quite a large amount of money. According to the Endowment for Human Development, a stack of one trillion dollar bills would reach almost 68,000 miles. So a stack of three trillion dollar bills would reach 204,000 miles. Driving that distance at 60 mph would take 3,400 hours, i.e. 142 days, and that’s with no rest stops (bad idea). No wonder it took Congress 1,815 pages.
Where would the proposed $3 trillion go? The potential recipients are legion, so I will name but a few that may prove of particular interest to Bay Staters.
For example, $50 million would go to the Legal Services Corporation (LSC) which every year helps fund entities in Massachusetts such as Community Legal Aid (CLA) and Northeast Legal Aid (NLA) to the tune of about $1.5 million and $1 million respectively. If you are a housing provider who has ever had to take tenants to Housing Court for, say, nonpayment of rent (back when housing providers were allowed to do that sort of thing), you may be familiar with CLA and NLA. They are the attorneys who represent the tenants. Similarly, the Volunteer Lawyers Project of the Boston Bar Association also receives LSC funding of approximately $2 million per year, which is exactly the kind of voluntarism I could volunteer for.
Under the HEROES Act another $4 million would go to the Fair Housing Organization Initiative. Earlier this year, HUD (which administers the program) awarded $300,000 to Community Legal Aid (yes, the same Community Legal Aid that got $1.5 million from the federal Legal Services Corporation). HUD also doled out $300,000 to Massachusetts Fair Housing Center, Inc. That’s the corporation that is suing Massachusetts in federal court over the Lead Paint Law, which it alleges discriminates against families with children. For a list of reasons why that lawsuit represents a less-than-judicious use of taxpayers’ money and everyone’s time, click here.
In addition to spreading the wealth around, the HEROES Act would prohibit evictions.
A year-long, nationwide eviction moratorium
In the PDF version of the HEROES Act, the provisions about the eviction moratorium start at page 961 in section 110203 of Division K, Title II (titled “Protecting Renters and Homeowners from Evictions and Foreclosures).
What would this part of the bill do if the Senate approves? For a period of 12 months after enactment, it would prohibit “legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges.” The term “covered dwelling” means dwellings covered by section 802 of the federal Fair Housing Act, i.e. all rental units. Yes, all rental units in the country, even in those States that have addressed the issue — and continue to do so — in their own way.
Whether judicially, legislatively, or by executive order, many of the States have enacted eviction moratoria of some kind and duration. In a country of approximately 330-million people across 50 States, there has been some variety. Utah imposed a ban whereas Oklahoma did not. New York extended its ban whereas Colorado did not. California? We’ll see. May Congress supplant these various State-level approaches, replacing them with a one-size-fits-all rule?
Congress does not have the authority to make laws governing absolutely each and every form of human activity that may occur in the United States. Its powers are limited, believe it or not (and for many in Congress it seems to be “not”).
As James Madison explained: “[T]he proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residual and inviolable sovereignty over all other objects.” Federalist No. 39. Sovereignty is shared, the Constitution circumscribes the powers of Congress, and the Constitution does not give a articular power to Congress it remains with the States. The lines of demarcation may be blurry but they are not invisible.
Among the enumerated powers of Congress is the power to regulate interstate commerce. This is what allows Congress to legislate in the area of housing so as to reduce invidious discrimination. Activities within a singe State that may have a a substantial and harmful effect on interstate commerce can come within the clause’s scope, e.g. racial discrimination in housing.
Flexible it may be, but the Commerce Clause has its bounds. For example, it does not extend beyond economic activity to economic inactivity, as the Supreme Court held in NFIB v. Sebelius. In an area where the States are already acting separately, and where there is no invidious racial discrimination or other activity that has a substantial and harmful effect on interstate commerce, the answer should be no.
That seems to be the opinion of Senate Republicans at this point, who consider the bill a liberal wish list. When the GOP-majority Senate takes up the HEROES Act in July (or perhaps August according to this article) it seems unlikely to vote to extend and expand the eviction moratorium. But, as we have all learned in the past few months if we didn’t know it already, sometimes changes come thick and fast.
The CARES Act’s eviction moratorium applies to housing with some kind of federal connection, albeit tenuous in some cases. Each State has supplemented that federal law with a response of its own, tailored to local needs. Those State-level laws may be unpalatable and arguably unconstitutional, e.g. Chapter 65 in Massachusetts. But they are examples of federalism in action, and typify the way our system is supposed to work. Expanding the federal moratorium is both unnecessary and unconstitutional.
If you believe that the Senate should reject the effort to impose a nationwide, year-long moratorium on evictions, please call your U.S. Senators and let them know.
June 11, 2020:- Here’s a grip-and-grin photo of Governor Charlie Baker and yours truly back in 2018 (I’m the one with the beard). If I met the Governor again today and could ask him one thing, it would be to let the eviction moratorium expire.
Why? Because, as I point out in my latest article for MassLandlords, the eviction moratorium is making affordable housing even scarcer. It encourages housing providers to keep vacant units off the market. For the full text of the article, click here.
May 26, 2020:- The eviction moratorium (Chapter 65) is still in effect. The earliest date on which is will expire is August 18 (120 days after Chapter 65 became law). However, the Governor could extend it by 90 days, and keep doing so until 45 after the end of the state of emergency.
When will the state of emergency end? The Governor has not said. There has to be a state of emergency in effect for the Governor to issue emergency orders, so the chronology of his four-phase re-opening plan gives some clues.
Until the moratorium expires (August 18 at the earliest, and possibly later), housing providers must not send notices to quit, except for “essential evictions,” i.e. where the tenant’s criminal activity/lease violations “may impact the health or safety” of another person lawfully on the premises or the general public.
May 28, 2020:- In addition to the State-level eviction moratorium established by Chapter 65, there is also a federal moratorium that Congress imposed on some properties by way of the CARES Act. As this reminder from HUD points out, housing providers are not allowed to charge late fees that accrue for unpaid rent during the 120-day federal moratorium (which ends July 25). To determine whether your property is subject to the federal moratorium, you may want to ask your lawyer.
May 22, 2020:- Missed rental payments are on the rise in Massachusetts, but a market solution may be available.
Even though the eviction moratorium law (Chapter 65) says that tenants are required to pay rent, the lack of an enforcement mechanism is leading some to skip paying the rent with a sense of impunity. Housing providers still have to pay to maintain the property and keep it up to code even when they are not receiving rent. One way for providers to stay afloat might be rent-guarantee insurance, also known as rent default insurance, which promises coverage in the event that a tenant stops paying rent.
Unless and until the Massachusetts Legislature takes up the Fair and Equal Housing Guarantee surety-bond policy that MassLandlords is promoting, some housing providers may find this kind of product helpful. And I see that one company, Avail, has a short video on the subject.
If affordable, insurance might be a viable market solution to government failure. By “government failure” I mean the Commonwealth requiring one party to provide housing without being able to go to court to make the other party pay for said housing. This forces rental-property owners to either (a) provide free housing (not a great business model) or (b) exit the market, thereby reducing the amount of rental housing available.
Ideally, Governor Charlie Baker would let Chapter 65 expire on August 18 rather than exercising his option to extend it. But if he chooses to prolong the moratorium, insurance might do the trick.
Please note that I have no contractual, fiduciary, relationship with Avail or Steady Marketplace, either oral or written, and receive no remuneration of any kind from the companies, make no representations regarding them, and suspect that there are other entities out there that offer similar insurance products. In the vernacular, I am not shilling for Avail or Steady Marketplace, or any other insurance company for that matter. I just think that for some housing providers, rent-guarantee insurance might be worth exploring.
May 19, 2020:- Volume 3 of the unofficial Western Division Housing Court reporter is now available online at masshousingcourtreports.org.
Please note that the reporter does not include all decisions and orders. The Court does not provide decisions from impounded cases and cases involving highly sensitive issues relating to minors, and the editors will generally exclude certain types of decisions, such as simple scheduling orders; terse orders lacking sufficient context to be of value to those unfamiliar with the case; and, decisions that relate certain types of particularly sensitive, personal information. A full description of the process and editorial standards can be found at the beginning of each volume.
May 12, 2020:- On May 8, 2020, Attorney General Maura Healey issued an “advisory” on residential evictions. An advisory is not a law or regulation, but it indicates how the Attorney General will interpret the law and try to persuade the courts to apply it. This particular advisory includes a novel interpretation of Chapter 65, the statute that limits the right of access to the courts for one class of people, namely housing providers (landlords).
The statute also abridges freedom of speech by banning landlords from sending notices to quit. In addition, by preventing property owners from obtaining possession even when tenants stop paying rent (whether for reasons related to COVID 19 or not) it operates as a taking. I have addressed those violations before and will do so again in future posts. This post is about access to justice, and how Attorney General Healey’s advisory (mis)interprets what the statute has to say about it.
Chapter 65 allows housing providers to file for summary process only where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person lawfully on the property or of the general public. But it bars housing providers from taking tenants to court for non-payment of rent. Under Chapter 65 (as opposed to the Declaration of Rights) no access to the courts is the rule, and the health/safety provision is the exception.
Statute in Derogation of Liberty
Chapter 65 takes away a fundamental liberty, namely access to the courts, which (as I have mentioned elsewhere) is one of the liberties guaranteed by the Massachusetts Declaration of Rights. Here in Massachusetts it is well established that statutes in derogation of liberty should be strictly construed and interpreted narrowly. They should be narrowly tailored to serve a compelling and legitimate government interest and strictly construed to comply with requirements of substantive due process, as the Supreme Judicial Court held in the Mattter of E.C., 479 Mass. 113 (2018).
In other words, if a statute takes away a basic right, the courts should interpret it narrowly so as to confine the damage to the individual’s liberty interest.
But Attorney General Healey says the opposite, that it is the fundamental right that should be narrowly construed, not the exception to it.
Editing out, and editing in
“Evictions can be brought only where a tenant (1) violates lease terms or engages in criminal activity, and (2) the violation may impact the health or safety of others who are lawfully on the premises. This exception is narrow and should only be used where there is a serious health or safety concern that can’t otherwise be addressed.”
That is what the advisory says about the statute. But that is not what the statute itself says. Not at all. First, the statutory language about impacts on health/safety applies not only to people lawfully on the premises but also to the general public. It says so right there in Section 1 of the statute:
“… may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.”
So in advising the general public, the Attorney General Healey left out that bit about the general public.
Second, if the Legislature had intended to say that housing providers may ask the courts to evict tenants only where the criminal activity or lease violations “are likely to seriously affect the health or safety of another person and cannot be addressed short of eviction” it would have said so. But it did not. Chapter 65 does not say “serious health or safety concerns” nor does it state that eviction must be the very last resort.
In addition to leaving out some words and adding others, the Attorney General’s interpretation is the opposite of the way to interpret a statute that derogates from liberty. The advisory says that the right of access to the courts that is the “narrow exception,” which is not what the appellate decisions say about statutes in derogation of liberty. On the contrary, according to precedent it is the liberty that should be construed broadly, and the exception to that liberty (in this case the barring of the courtroom doors for all but health/safety cases) that should be construed narrowly.
As if it were not bad enough that we have a statute that abridges freedom speech, bars access to the courts for one class of people, operates as an unconstitutional taking without reasonable compensation, and grants the Governor the option of extending its duration, now the Commonwealth’s chief law-enforcement official says that she will read into that statute words that are not there and apply it n a way that flies in the face of precedent.
So now you know the opinion of Attorney General Healey about your right of access to the courts. Should you wish to share your opinion with Attorney General Maura Healey, here is a link to the Contact page.
May 7, 2020:- A federal judge provided a welcome victory for the rights of free speech and access to the courts yesterday. Judge Stearns of the U.S. District Court for the District of Massachusetts issued an injunction prohibiting Maura Healey (the Massachusetts Attorney General ) from enforcing “emergency” regulations that would have prevented debt collectors from making phone calls to debtors and from going to court.
Claiming authority under the Consumer Protection Act (M.G.L. c. 93A) Healey had issued “emergency” regulations that were exempt from the notice-and-comment requirement that usually allows the public to weigh in. These were in addition to, not instead of, the comprehensive debt-collection regulations that already govern this area of economic activity. The new regulations purported to ban debt collection agencies from calling debtors and taking them to court for the duration of the open-ended state of emergency that Governor Charlie Baker proclaimed on March 10.
Because the regulations interfered with constitutionally-guaranteed rights of speech, petitioning, and access to the courts, ACA International asked the federal court for an injunction. The judge noted that one of the supposed justifications for the regulation (“vouchsafing the financial wellbeing of Massachusetts residents”) had little apparent connection to the AG’s attempt to prohibit one particular form of communication with debtors, namely the telephone. In fact, none of the reasons that the AG offered could justify burdening the commercial speech of professional debt collectors (as opposed to other people trying to collect debts, which the regulation exempted).
With regard to the AG’s rationale for barring the courthouse doors to one class of litigants (i.e. that there is a state of emergency), the judge quoted from a decision of the Supreme Court of the United States: “Emergency does not create power… Constitutions cannot be changed by events alone.”
There are similarities between the debt-collection regulations and Chapter 65, the Legislature’s eviction moratorium. Chapter 65 bars one class of litigants from going to court to seek possession of their real estate for nonpayment of rent (but allows them to seek repossession where a tenant’s criminal activity/lease violations “may impact the health or safety” of another person). Similarly it bans them from sending tenants notices to quit for nonpayment of rent (but not where criminal activity/lease violations “may impact the health or safety” of another person).
Might a court use the same line of reasoning to strike down the part of Chapter 65 that bans landlords from issuing notices to quit and going to court for summary process?
Certainly, there is a difference between a regulation and a statute. But the principle that an officer of state government may not use the state of emergency as an excuse to strip away basic constitutionally-guaranteed rights should apply with equal force to the Legislature. Landlords should take hope from the ruling.
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.
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.
May 1, 2020:- Today the Housing Court issued Standing Order 5-20, which sets out the steps for property-owners and attorneys to take in summary process cases that the Legislature deems “essential.”
Along with the summary process summons and complaint, the owner/attorney must file an Affidavit of Cause affirming under oath that the eviction is “for cause,” as defined in the moratorium law, Chapter 65, i.e. that the tenant’s criminal activity/lease violation “may impact the health or safety” of another person.
This new standing order provides some much-needed clarity for court staff, litigants, and practitioners. It also serves as a reminder that the moratorium does not prohibit all evictions, only some.
Of course, how prohibiting evictions for non-payment of rent but not evictions for health/safety reasons could in any way help “flatten the curve” or otherwise reduce the spread of COVID19 is not at all clear.
April 27, 2020:- Since March 23, 2020, when Governor Baker issued COVID 19 Order No. 13, closing businesses across Massachusetts, about half-a-million Bay Staters have been thrown out of work. Some are renters who will find it difficult–or impossible–to pay rent. In ordinary times, landlords would have had the option of sending them a notice to quit and then going to court for summary process.
On April 20 the Governor signed the eviction moratorium that the Legislature had passed, which will last as long as the state of emergency plus 45 days, namely Acts of 2020 Chapter 65. The new law prohibits property-owners from going to court for summary process (except where a tenant’s criminal activity/lease violations “may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public”). So landlords with tenants who can’t or won’t pay rent have no legal recourse. They are, however, allowed to remind tenants of the duty to pay rent.
If you are a property owner, what should you tell the tenant who misses rent?
Do not worry: the Executive Office of Housing and Economic Development of has decided for you. It has issued regulations that state not only what you may write but what you must write. These are emergency regulations, so did not have to go through the process of notice and comment that allows the public to have a say. Here are the precise words that your State government requires you to utter:
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.
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.
The regulation adds:
The notice may also include other information that will promote the prompt and non-judicial resolution of such matters, such as the total balance due, the months remaining and the total of lease payments expected to be made on a lease for a term of years, information on how to contact the landlord to work out a revised payment arrangement, and a reminder that after the state of emergency ends the tenant may face eviction if rent remains unpaid.
The term “non-judicial resolution” is a bit pointless in the absence of any possibility of judicial resolution (Chapter 65 effectively barred the courthouse doors). But anyway, at least they are letting you say how much the tenants owe you and what may happen after the emergency.
The regulation goes on to add something that you should do, and also mentions something it “encourages” you to do.
If a landlord knows that the tenant is not proficient in English, the landlord should use reasonable efforts to deliver the notice in a language that the tenant understands.
Not a mandate, of course, just a suggestion. Then some more hortatory language.
Landlords are encouraged to include with the notice a statement that the notice is important and should be translated, a form of which is available on the EOHED website.
“Should” is not “shall” and “encouraged” is not exactly the same as “directly ordered to,” but you do not need a particularly vivid imagination to foresee what will happen to the landlord who chooses not to translate the notice and not to include the translated statement about the notice’s importance.
State government now permits you to inform non-paying tenants how much they owe and that after the state of emergency they may face eviction for non-payment. If you do choose to communicate with tenants on this subject, State government requires you to write the words set forth in the regulation. For some additional legal text that I consider relevant, click here.
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.
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.”
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.
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.
April 23, 2020:- Landlords and lawyers should bear in mind that the new eviction-moratorium law does not prohibit all evictions. The definition of “non-essential evictions” excludes:
(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or
(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.
Such evictions are not non-essential. Put another way so as to avoid a surfeit of negatives, such evictions are essential.
Note in particular the words “may,” “impact,” and “or.” The law does not say that the tenant’s criminal activity/lease violations must have a significant impact on the health and safety of another person, only that it “impact” the health or safety. Plus, it uses the disjunctive “or” as opposed to “and.”
What kind of activity can be said to “impact” someone’s health, including mental health? That is food for thought.
Takeaway: If a tenant’s activity may impact the health or safety of another person, the new law allows the landlord to file–and does not authorize the court to reject–a summary process case.
April 20, 2020:- Today Governor Charlie Baker signed the eviction-moratorium bill that will last as long as the state of emergency that he proclaimed on March 10, plus 45 days. What is the duration of the state of emergency? How long is a piece of string?
Unlike Order No. 13 (the business-closure order that expires on May 4, 2020) the state of emergency has no end date. By its terms the proclamation “shall remain in effect until notice is given, pursuant to my judgment, that the STATE OF EMERGENCY no longer exists” (all caps in original).
The new law says that the Governor may extend the moratorium in 90-day increments, so long as he does not extend it to a date more than 45 days after the end of the emergency. If, for the sake of argument, the Governor terminates the emergency on June 30, the earliest date on which a landlord could issue a notice to quit for non-payment of rent would be August 14 and the Housing Court would not have a hearing on the summary process summons and complaint until September at the earliest. Given the backlog of cases, further delays are inevitable.
The conclusion of the moratorium depends on when the emergency expires, and right now that day looks distant. There is no reason to assume that it will be in June. Because although the pandemic may be on the wane, economically we are in tatters.
According to the International Monetary Fund (IMF), by the end of 2020 the global economy will have contracted by 3%, compared with 0.1% in the recession of 2009. Unemployment in the United States is already at 22 million (at least) and likely to go up. Hospitals are laying off workers. The price of oil has fallen below zero. If there wasn’t an emergency on March 10, there certainly is now.
But even if the Governor does lift the state of emergency and lets the moratorium expire 45 days thereafter, that might not mean much. The Legislature could choose to extend the moratorium by amending the statute. That seems more likely than not.
In view of its popularity among the majority and the likely demands by tenants’ advocates for an extension, it would take real political courage to leave the statue in its present form and let the moratorium expire on time. In the language of politics, the definition of “temporary” is almost infinitely elastic.
April 15, 2020:- Just when you thought it couldn’t get any worse. If the Massachusetts Legislature passes the eviction moratorium embodied in this bill, which emerged from the Senate today, it will not only violate two of the bedrock rights that are guaranteed in the Massachusetts Declaration of Rights, but will also grant to the Governor a power that no executive branch in the Anglosphere — no English monarch even — has claimed since the 17th Century: the power of suspending and dispensing the laws. This is a step backward, a step back to the era of royal absolutism.
It was already bad enough that our full-time salaried lawmakers wished to take private property without compensation and bar people from going to the courts. As I pointed out in a previous post, Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses and Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.
Now the Legislature intends to strip away another right, one that the people of Massachusetts granted to their Legislature, namely the power to decide how long a statute should remain in force. Section 7 of the new bill says that the eviction moratorium will expire in 120 days unless the Governor extends it. Read that again. Unless the Governor extends it. The alleged power to suspend or dispense legislation was a medieval prerogative reclaimed in the 1640s by Charles I. Things went poorly from there, for both the king and the kingdom.
If this were simply a matter of the Legislature surrendering their own rights to the executive branch, it would merit little more than a meh. But the right is not theirs to give. The purpose behind the separation of powers is to protect the rights of the people, not the rights of their full-time salaried servants in the State House.
If Governor Baker signs this bill into law we will have crossed another constitutional threshold.
April 13, 2020:- On March 23 Governor Baker issued an order titled COVID 19 Order No. 13 instructing businesses (other than those providing “COVID 19 Essential Services”) to “close their physical workplaces and facilities… to workers, customers, and the public.” This was an extraordinary order. As a direct result, unemployment in Massachusetts rocketed upward as it did in other States whose governors issued similar orders.
In my previous post I mentioned that in the two-year period 2016-18, the approximate number of hospitalizations in the United States for influenza was 1.3 million and the approximate number of deaths was 99,000, and we did not close down the economy and throw millions of people out of work. Putting that to one side, whatever the past efficacy if any of Order No. 13, it is now time to rescind it. If the number of hospitalizations increases over the next week or so, there is no reason to believe that this will strain the system to capacity.
Accordingly I have asked Governor Baker the following simple question:
With the cumulative number of hospitalizations in Massachusetts at fewer than 2,500 and with the number of deaths per day attributable to the virus at about 80-90, it is now reasonably clear that COVID 19 is not going to overwhelm our healthcare system. Given that the purpose underlying your order dated March 23 (COVID 19 Order No. 13) was to flatten the curve, could you please announce when you are going to rescind the order?
The designer of the University of Washington model says that “the worst is behind us.” That may be accurate as to the pandemic, but it is not true about the effects of our State government’s response. The close-business orders have led to the immiseration of countless families, and more livelihoods and lives are now at risk than there were before March 23.
If your business closed because of Governor Baker’s order, please let me know.
April 3, 2020:- In order to slow the spread of COVID 19, on March 10 Governor Baker declared a state of emergency. On March 23, he ordered all “non-essential” businesses to close. Yesterday, the Massachusetts House of Representatives voted to prohibit landlords (commercial and residential) from issuing notices to quit and commencing eviction actions for the duration of the state of emergency plus 30 days. For the eviction-moratorium bill itself click here.
If tenants cannot pay rent (e.g. because state government destroyed their jobs) the landlord will not receive the money needed to pay for the upkeep of the premises, to pay employees, and pay taxes. Perhaps, to cover at least one part of this government-made crisis, the Legislature will appropriate money to expand the RAFT program. If so, it will need to dramatically expand not just the amount of money but also the eligibility rules.
The eviction moratorium marks the crossing of an important threshold. If and when the Governor signs it into law, the people of Massachusetts will experience yet another extraordinary erosion of their rights.
If government takes your property for public use, it should compensate you. If you have a grievance, you should be able to seek redress in a court of law. These are not ideas that just popped into my head; they are principles embodied in our founding charter.
Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses. Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.
The eviction moratorium robs property-owners of the right to a legal remedy and it amounts to a taking without just compensation. It makes a mockery of Article 1, which describes the right of enjoying and protecting property as “natural, essential, and unalienable.” And it will have a devastating impact on rental-property owners, their families, and their employees. What possible rationale could there be for such an attack on our rights?
According to the COVID Tracking Project, at this point the cumulative number of hospitalizations for COVID 19 is approximately 36,000, and the number of deaths is 6,962. Unfortunately it seems reasonable to expect that the numbers will rise over the next couple of months, perhaps even as high as 100,000.
The overall burden of influenza for the 2017-2018 season was an estimated 45 million influenza illnesses, 21 million influenza-associated medical visits, 810,000 influenza-related hospitalizations, and 61,000 influenza-associated deaths.
That’s certainly a large number of deaths. There’s no getting around the fact that 61,000 represents a lot of lost lives and bereaved families. That same year, by the way, there were 36,550 deaths attributable to road traffic accidents.
The overall burden of influenza for the 2016-2017 season was an estimated 29 million influenza illnesses, 14 million influenza-associated medical visits, 500,000 influenza-related hospitalizations, and 38,000 influenza-associated deaths.
So in the two-year period 2016-18, the approximate number of hospitalizations in the United States for influenza was 1.3 million and the approximate number of deaths was 99,000. And we did not close down the economy and throw millions of people out of work.
From 12 April 2009 to 10 April 2010, we estimate that approximately 60.8 million cases (range: 43.3-89.3 million), 274,304 hospitalizations (195,086-402,719), and 12,469 deaths (8868-18,306) occurred in the United States due to pH1N1. Eighty-seven percent of deaths occurred in those under 65 years of age[.]
Approximately 12,000 people in the United States died from H1N1 in 2009-10. The following flu season (2010-11), approximately 37,000 died from a different kind of influenza, according to the CDC. We did not close down the economy and throw millions of people out of work.
We are not at war, no matter what the politicians say (well, we are at war–at least our all-volunteer military is–but not against a virus). Rather, we are in a horrible but manageable pandemic. The circumstances do not justify this attack on our rights.
The Legislature and Governor are poised to strip property owners of the right to go to court to seek repossession of their own property. They are forcing an economic minority (rental-property owners) to pay the price for the state government shuttering businesses and destroying jobs, in other words to provide a public good without reasonable compensation. The rights that we lose today will not automatically bounce back tomorrow, or the day after, or when the Governor chooses to declare the emergency over.
March 31, 2020:- For many people in Massachusetts, tomorrow rent is due. Some will face a very tough choice. Why?
Because today is the seventh day since Governor Baker’s business-closure order took effect. At the stroke of a pen, approximately 150,000 people had their jobs and livelihoods taken away (albeit with the best of intentions on the part of the Governor).
People are hurting. For a lot of us, renters and home-owners alike, it feels like we are about to fall off a cliff.
What happens when people cannot afford to pay rent?
In this emergency, no landlord would want to ask the Housing Court to evict a tenant for nonpayment of rent. And now many do not have that option anyway, even for tenants who are still in work and can afford to pay rent. Why?
Because today is also the fifth day since Congress passed the CARES Act, which (among other things) imposes a 4-month moratorium on evictions from residential properties with federally-backed mortgages. For the applicable language, scroll down to page 574 and read Section 4024(a)(4) and (5).
In the coming months, more and more people are going to face hardship and the appalling choice between food and rent. I know which one I would choose.
There will be a handful–there always is–of those who can pay but won’t; those who will take advantage, safe in the knowledge that if they live in a property with a federally backed mortgage the landlord must not send them a notice to quite, let alone ask a judge to evict them.
So who is going to pay for the cost of housing people who can’t (or won’t) pay rent?
Who is going to pay the landlord’s employees and contractors, the people who keep rental homes fit to live in?
Sign the petition
Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition.
The Commonwealth should immediately stand as surety for renters who cannot afford to pay rent. A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out.
In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.
If you think that the Commonwealth as a whole should stabilize housing by guaranteeing rents via surety bonds, sign the petition today.
Tell the Legislature to keep us from falling off that cliff.
March 27, 2020:- Here’s my video asking people to sign the petition that asks Massachusetts lawmakers to stabilize housing by guaranteeing the rent.
As I mention in the video, this is day 17 of the state of emergency and only four days have passed since the Governor issued the executive order closing all “non-essential” businesses. As a result, unemployment in Massachusetts has gone up 1,900%.
For my description of the proposal and its rationale, please see my previous post.
By the way, in the video I wonder whether we will look back on state government’s response as proper or as Operation Barn Burner. I’m using the term “barn burner” in its 19th-century sense, i.e. someone who will rid the barn of rats by burning it down, akin to journalist Peter Arnett’s phrase that he attributed to an officer in the US Army, “destroy the village to save it” (which phrase no officer may have actually uttered).
I am inviting you to sign a petition, and here’s why:
“No one should fear losing their home because of the coronavirus,” HUD Secretary Ben Carson tweeted on March 18.
Well said, ditto that, and hear hear. The same principle should apply to renters and owners alike. No one who provides homes should fear losing them because of the coronavirus.
Without a doubt, Governor Baker and our other elected officials in Massachusetts have been attempting, in good faith, to protect the public by flattening the curve. But the cumulative effect of the orders has been devastating to the livelihoods of thousands.
I am not a landlord, but I have represented quite a few over the years (some tenants too) and know that they depend on rent checks to pay their bills. When tenants can’t pay landlords, landlords can’t pay the next people along in the chain of obligations, e.g. the cleaners, plumbers, carpenters, roofers, and electricians who keep tenants’ homes up to code.
Many tenants are losing their jobs and can’t pay rent, and the ripple effects are obvious.
Even if, looking back, it turns out that these measures really did help slow the spread of COVID 19, it is already clear that they have inflicted massive damage on families across Massachusetts. And things are likely to get worse before they get better. The Economic Policy Institute projects 125,000 job losses in Massachusetts by the summer.
People are out of work and unable to pay rent as a direct result of our State government’s response to COVID 19. Acting under the authority that the Legislature granted in 1950, the Governor issued a series of executive orders.
Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition:
The Commonwealth should immediately stand as surety for renters who now—because of those executive orders—cannot afford to pay rent. It was the Governor—not landlords—who issued those orders, and it was the Legislature—not landlords—that granted the Governor the legal authority to issue them.
In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.
A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out. It is a way to insure against loss. Some insurance companies offer this kind of product to landlords.
But now is hardly the time to try to buy surety bonds. The peril is already manifest. Instead, in the interests of social cohesion and stability, State government needs to act as insurer and guarantee the rent. After all, this is not an instance of market failure, but rather government failure.
If you agree that the Commonwealth of Massachusetts needs to guarantee rental payments during this crisis, please sign this petition.
The Massachusetts Legislature can make this happen. Our Constitution vests the sole authority to initiate money bills, the so-called power of the purse, in the House of Representatives, and the Speaker of the House should act immediately. He has the power to push the necessary legislation through.
Sign the Petition
COVID 19 has thrown us a curve ball, and we all — owners and renters alike — are in need of one heck of a batter.
Mr. Speaker, you’re up.
To call on the Speaker to issue surety bonds to guarantee people’s rent, sign the petition today.
March 23, 2020:- What a difference a day makes. Today’s decision from the Supreme Judicial Court (SJC) in Youghal, LLC v. Entwistle reminds landlords that they need to prove receipt (not merely the sending) of a notice to quit and that they can only commence summary process for non-payment of rent after 14 days have elapsed.
In the Youghal case, the landlord’s agent taped the notice to quit for non-payment of rent to the tenants’ door on June 6, 2017. But at trial one tenant testified that she did not see the notice until the following day, June 7. The landlord served the tenants with a summary process summons and complaint on June 21, 2017, which within the 14-day period that commenced on June 7 (the day the tenant said she saw it). Therefore, said the SJC today, “judgment must enter for the tenants.”
March 6, 2020:- Civil asset forfeiture is a way for law-enforcement agencies to acquire property (money, vehicles, real estate, etc.) from people who have not been charged with, let alone convicted of, any crime. If somebody — anybody — used the property, or even just intended to use it, in the commission of a drug crime, the government can take the property, sell it, and keep the proceeds, and all without the rigmarole of a trial.
Under Massachusetts law, G.L. c. 94C, sec. 47(d), if the Commonwealth establishes probable cause (not a very high bar) the burden is on the owner to prove that the property is not forfeitable.
For example, one case in Tewksbury involved local and federal agencies trying to take a motel that had been in the same family for two generations. The reason? Over the course of 14 years during which the owners had rented out rooms approximately 200,000 times there had been 14 drug-related arrests on the premises. There was no suggestion that the owners themselves had done anything wrong.
As an editorialMassachusetts Lawyers Weekly in 2019 stated:
All of this makes it too easy for property to be confiscated, and creates incentives for police and prosecutors to use forfeiture as a way to target those without the ability to fight a seizure. The law can also lead to unintended consequences, such as putting elderly parents or minor children living in a target’s house at risk for homelessness.
I am committed to helping reform the these laws, and am working with other concerned citizens to raise awareness and organize for change.
In the meantime, if law enforcement is trying to obtain your property through forfeiture, email/call me for a free 30-minute consult.
February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.
January 28, 2020:- The federal Department of Housing and Urban Development (HUD) has issued a new guidance document on the subject of assistance animals, a term that covers (1) service animals, and (2) support animals. Its purpose is to clarify the rights and responsibilities of housing providers and people with disabilities in the area of reasonable accommodations under the federal Fair Housing Act (FHA).
As HUD clearly states, the guidance document is just that: a guidance document, not something that expands or otherwise alters obligations under the federal Fair Housing Act.
November 19, 2019:- When the Massachusetts Commission Against Discrimination (MCAD) stopped producing documents in response to Attorney J. Whitfield Larrabee’s public records requests, Attorney Larrabee sued. The MCAD said that it had changed its policy, and that from now on it would only produce information about closed cases, not open ones. Today the Appeals Court held that it is duly promulgated regulations that govern, not a unilateral policy adopted without notice and comment.
Justice Sullivan’s opinion states that the agency’s new policy conflicts with its regulations and that it must, in accordance with the regulations, produce the documents. My favorite excerpt is the following:”A regulation controls over policy statements or guidelines that conflict with the regulation… If the MCAD wishes to consider recalibrating its policy regarding public disclosure, it must follow the amendment process.”
In case any of my students are reading this, I point out that this case provides an example of why you should read the footnotes, which are there for reading not decoration. In footnote 7 the court deals with the MCAD’s argument that public disclosure of open cases will lead to respondents retaliating against complainants: The argument does not hold water because Respondents know about the complaint from the outset when the MCAD serves them with it.
Today’s decision makes this a good day for open government and the rule of law.
P.S. November 19, 2019: I just filed my own public records request with the MCAD for pending charges filed so far this year in the commission’s Springfield office. I will keep you posted.
September 19, 2019:- At 12 noon on October 9 in its Springfield office, the Massachusetts Commission Against Discrimination (MCAD) will hold a public hearing on proposed changes to its procedural regulations. For a link to the notice click here.
One proposal in particular caught my eye, as I mentioned in a previous post, and here is the text of the comment I submitted to the MCAD in support of it:
804 CMR 1.13(9)(b)(3)
The proposed rule provides that “where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.”
As an attorney who has previously complained about the Commission investigating charges without having adjudicated a motion to dismiss for lack of jurisdiction, I welcome this proposal. A clear and unambiguous grant of discretion to issue a stay would be a significant improvement on the current situation.
However, where a respondent’s motion raises the limitation period I believe that a stay should be mandatory not discretionary. The purpose of a statute of limitation is to provide a degree of certainty and predictability, which purpose is undermined when investigations commence after the statutory deadline has passed. Accordingly, where a motion seeks dismissal based on the expiry of the limitation period, the Commission should only continue to investigate after determining that the period has not expired and the Commission does, in fact, have jurisdiction.
In order to maintain the principle of separation of powers (one of the bulwarks of liberty), agencies should operate within, not beyond, their statutory remit. Conducting an investigation without jurisdiction violates that principle. It should not happen. This proposed regulation goes some way toward preventing the MCAD exceeding its authority, so I hope that it makes the final cut.
I intend to be at the public hearing in Springfield and to post a brief report of what, if anything, occurs. Probably it will not be necessary to arrive hours ahead of time and queue for a seat. After all, on October 9 many Bay Staters will be busy observing the anniversary of the banishment of Roger Williams in 1635 or celebrating Leif Erikson Day. Quite possibly, therefore, there may not be much of a crowd at the mid-week, noontime meeting to discuss amendments to the MCAD’s procedural regulations. But you never know. In the meantime, if readers would like to know more about the issue, please post a comment or email me.
September 16, 2019:- Today the Supreme Judicial Court (SJC) announced a decision that gives landlords cause to rejoice.
Following motion by a landlord, a court has statutory and equitable authority… to order a tenant at sufferance to make interim use and occupancy payments during the pendency of an eviction action.
On behalf of MassLandlords, I submitted an amicus brief in the case, Davis v. Comerford, and my main worry was that the court would set an unrealistic threshold for landlords to meet before a rent-escrow order could issue. That worry was misplaced, I am relieved to say. Instead of following the advice of the Harvard Legal Aid Bureau and requiring landlords to show the threat of “irreparable harm,” (i.e. harm that money cannot fix) the SJC tells judges which factors to take int account and to then engage in an “overall balancing of the equities.”
The first factor?
[T]ime lost in regaining [real property] from a party in illegal possession can represent an irreplaceable loss to the owner.
The other factors in the non-exhaustive list of factors that the judge should weigh are;
Amount of rent owed;
Number of months with no payments/partial payments;
Landlord’s monthly obligations;
Whether landlord faces the threat of foreclosure;
Tenant’s likelihood of success on the merits of defenses/counterclaims;
Whether tenant has been withholding rent because of conditions, or has repaired and deducted cost from rent;
Whether code violations are de minimis or substantial;
Whether tenant is indigent.
In addition to making clear that judges can order rent escrow and not setting an impossibly high bar for landlords, the SJC said this:
We further conclude that payment into an escrow account maintained by the court or counsel for one of the parties typically will provide sufficient protection to a landlord, but we clarify that a judge may order payments directly to a landlord if certain additional factors are present, such as where the landlord demonstrates that use and occupancy payments are necessary for the landlord to pay a mortgage on the premises or meet other pressing financial obligations.
For the slip opinion of the Davis v. Comerford decision click here.
August 29, 2019:- If you like government secrecy and think the legal system would function much better out of the public eye, you are going to love a proposal called “eviction sealing.”
Some Massachusetts lawmakers would like eviction cases sealed so that the public (in particular, landlords) will not be able to know who has been taken to Housing Court. The bills are H. 3566 and S. 824, and if enacted they would move Massachusetts further away from an important constitutional principle, one that Oliver Wendell Holmes, Jr., described more than 100 years ago:
It is desirable that [judicial proceedings] should take place under the public eye… because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.
Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.). Based on the idea that sunlight is the best disinfectant, as another jurist put it (quoting James Bryce), Massachusetts court records are available for public inspection unless a specific statute, court rule, or order says otherwise. Public access is the default setting. But here is a video of Professor Esme Caramello, clinic director of the Harvard Legal Aid Bureau, explaining to the Poverty Law Clearingouse why summary-process records should be an exception.
In the video Professor Caramello says that “we saw a dramatic increase in barriers to finding new housing once all the Housing Court records went online” and that allowing public access to Housing Court cases “allows landlords to say ‘if ever a person tries to assert their rights, I don’t want to have anything to do with them,’ so it really creates a major access-to-justice problem.”
This is consistent with what Professor Caramello and Annette Duke of the Massachusetts Law Reform Institute wrote in an article titled “The Misuse of MassCourts as a Free Tenant Screening Device,” published in the Fall 2015 edition of the Boston Bar Journal making the case that landlords should not be allowed to know whether a prospective tenant has been party to a case in Housing Court.
Blacklisting tenants like these merely because their names are online in MassCourts erects unfair barriers to finding an apartment for anyone who has ever been to court in a housing case – tens of thousands of people every year – and could place especially vulnerable people with limited housing options into a spiral towards homelessness.
Another scholar, Paula A. Franzese, makes a similar point in a law review article titled “A Place to Call Home: Tenant Blacklisting and the Denial of Opportunity,” 45 Fordham Urban Law Journal 661 (April 2018):
Blacklists stigmatize, precluding future renting opportunities and rendering affordable housing options even less accessible. What is more, the lists skew market efficiencies, creating “false negatives” of prospective renters who would in fact be fine tenants. The very specter of being blacklisted can impose a considerable chilling effect, dissuading tenants from exercising otherwise assured rights and remedies.
These are strong arguments against landlords making decisions based solely on Housing Court records. A rental-property owner who declines to rent to applicants because their names appear in the Housing Court records could be missing out on great tenants. Rental property owners do not want to miss out on great tenants because (as tenants’ advocates seem to forget occasionally) owners are in the business of renting homes to people, not rejecting and evicting them.
But, appealing as their equity-based arguments may be, Professors Caramello and Franzese do not explain why a tenant’s interest in secrecy should outweigh the public’s interest in access to information, which is a right protected by the First Amendment, according to the First Circuit Court of Appeals. The professors’ solution is not narrowly tailored to serve a compelling government interest, which is the test courts use in deciding whether the government is justified in restricting rights guaranteed by the First Amendment. A blanket ban is quite the opposite of narrow tailoring, really.
Nor do they address the likely consequences of hiding this information from landlords. If landlords are not allowed to manage risk by deciding how much weight to give Housing Court records (because the Legislature has clawed the records back from the public domain) they will insure against the unknown risk in the obvious way: by raising rents.
The State with the highest homeless population in the nation, California, enacted eviction sealing in 2016. According to this article in the Mercury News the bill’s sponsor called it “a commonsense law… that will prevent working families from becoming homeless.” This article from the Wall Street Journal and this one in the Sacramento Bee tell us just how accurate that prediction turned out to be. True, homelessness in California as a whole did drop by 1% in 2017-18 — after years of going upward — as CNN reported. But as NPR, Curbed, and the Guardian pointed out 2019 is another story, with homelessness in Los Angeles (the county with the largest population) rising dramatically this year.
Is there really no way to tackle the eviction-records issue in Massachusetts short of stripping the public of a First Amendment right, becoming more like California, and raising rents?
Last month in the State House I testified against eviction-sealing on behalf of MassLandlords. The proposal is just one among a cluster of landlord-tenant bills pending before the Legislature, e.g. the return of rent control, providing tenants with publicly-funded lawyers, prohibiting evictions without “just cause,” and creating a tenants’ right of first refusal.
For details of my testimony, please stay tuned for the September edition of the MassLandlords newsletter.
March 5, 2019:- Amherst attorneys Paul Bobrowski and Peter Vickery are pleased to announce the formation of Bobrowski & Vickery, LLC, which will focus on civil litigation, employment law, land-use law, landlord-tenant, general business law, and estate planning.
Bobrowski is a graduate of the University of Massachusetts, Amherst, where he obtained his BS (Astronomy) and MA (Sociology), and of the University of San Francisco where he obtained his JD. In addition to practicing law, he served for 11 years as Senior Consultant at the Information Technology Division of the Judicial Branch for the State of Connecticut.
Vickery is a graduate of Oxford University (BA); the University of the West of England (Postgraduate Diploma in Law); Boston University School of Law (JD); and the University of Massachusetts, Amherst (Master of Public Policy & Administration). Vickery is a former Governor’s Councilor for Western Massachusetts and former member of the State Ballot Law Commission, and is Legislative Affairs Counsel for MassLandlords, the statewide membership organization representing rental-property owners in Massachusetts.
January 15, 2019:- The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.
Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.
The new proposed rules give the Investigating Commissioner clear authority to issue a stay.
Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.
July 29, 2020:- Today the Appeals Court reaffirmed that the employment relationship between a religious organization and its ministers is beyond the reach of the anti-discrimination laws. The court held that the “ministerial exemption” covered the job in question, namely director of music ministries, and that the trial judge was right to dismiss the plaintiff’s age- and gender-discrimination case against her former employer.
As the ruling points out, the purpose of the exemption is to prevent courts depriving a religious organization of control over “the selection of those who will personify its beliefs.”
You can read the decision in Menard v. Archdiocese of Boston, which proponents of freedom of conscience and religion will welcome, by clicking here.