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 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.
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.