Blog Posts

Some evictions are still legal

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.

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Peter Vickery, Esq.

 

 

 

Eviction moratorium: how long?

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.

Legislature poised to give Governor even more power

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.

 

 

A simple question for the Governor

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.

Rights under attack: no court for you

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.

Rights trampled

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?

Pretext

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.

For some perspective, here are the nationwide figures from the CDC for the 2017-18 flu season:

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.

Here are the figures for the previous flu season:

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.

A few years before, according to the CDC.

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.

Conclusion

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.

justice in to the trash can

STABILIZE HOUSING: GUARANTEE RENT NOW

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Sign the petition

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.

Act now to stabilize rental housing

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).

Click here to sign the petition.

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

Calling on State Government to Guarantee Rents

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:

Surety Bonds

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.

Landlord jumped the gun, says SJC

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.”

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

Civil Asset Forfeiture

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 editorial Massachusetts 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.

Tel. 413.992.2915  Email: peter@petervickery.com

 

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Peter Vickery, Esq.

New MCAD decisions published

March 4, 2020:- The Massachusetts Commission Against Discrimination (MCAD) has published three new decisions (link).

One of the cases (Chase, et al v. Crescent Yacht Club, et al) involves an award of attorney’s fees and cots in the amount of approximately $83,000.00 on top of a damages award of almost $30,000.00.

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Peter Vickery, Esq.

School district’s insurer pays $90K after firing of teacher who took time off to care for toddler son with stage IV cancer

March 3, 2020:-  What a headline, eh. Anti-discrimination laws protect not only employees with disabilities but also employees whose family members have disabilities (“associational discrimination”). This story from the North Andover Eagle-Tribune describes a case where the Massachusetts Commission Against Discrimination (MCAD) found probable cause.

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Peter Vickery, Esq.

New rules in effect at MCAD

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.

For my earlier post on the subject, click here.

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New MCAD rules: I’ll drink to that.

Assistance Animals: New Guidance from HUD

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.

To read the document click here.

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

MCAD must disclose documents

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.

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

Discrimination regs: public hearing in Springfield

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.

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Peter Vickery, Esq.

Rent Escrow: a rare win for landlords

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.

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

Housing Court Secrecy

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.

 

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

New law firm

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.

For the new firm’s website, click here.

 

Attorney Paul Bobrowski
Attorney Paul Bobrowski

Progress at the MCAD

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.

Draft 804 CMR 1.13 (9)(b)(3). Here is a link.

Although not as good as an automatic stay, this is a very welcome step. Well done, MCAD.

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Peter Vickery, Esq.