Category: fair housing

eviction moratorium, fair housing, landlord tenant, law, massachusetts

New law to prolong eviction cases. Lieutenant Guv asks for volunteer landlords.

August 17, 2023:- The Massachusetts Legislature has restored and made permanent a law that puts nonpayment eviction cases on hold if the tenant applies for rental assistance, e.g. RAFT. It adds a new section 15 to chapter 239 of the General Laws. To read the new law, click here.

How does the law work? When tenants stop paying rent, the landlord sends a notice to quit for nonpayment of rent together with a State government form called the Form to Accompany Residential Notice to Quit. This form informs the tenants (in all capitals) that the notice to quit is not an eviction and they do not need to leave.

Some people, when they receive a government document that declares

THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT

conclude that the notice to quit is not an eviction, and they do not need to immediately leave.

If the tenants do not leave and do not pay the arrears, the landlord starts a summary process (eviction) case by having the sheriff serve a legal document called the summary process summons and complaint. A few weeks after the landlord files the case, the Housing Court will schedule an opportunity to mediate. This is called the First-Tier Event.

The court gives the landlord a notice of the First-Tier Event, which the landlord must pay the sheriff to serve on the tenants. The notice contains information about how to file an answer to the summary process complaint, including links to an online service that Greater Boston Legal Services created (with help from City Life/Vida Urbana and the court) that guides tenants through the process of preparing an answer, replete with defenses and counterclaims.

At the First-Tier Event, if one party does not want to mediate or if mediation happens but does not produce an agreement, the court schedules a trial. By the time of the mediation, the tenants are supposed to have filed an answer to the complaint.

On the day of trial, the tenants can put the brakes on the case by submitting an application for rental assistance. Unless and until the rental-assistance administrator approves or denies the application, the judge cannot enter judgment or issue execution. The case goes into suspended animation.

But as the people who passed this law know perfectly well, a large proportion of rental applications result in neither an approval nor a denial; they simply time out.

Time outs

Administrators deem applications timed-out for a variety of reasons, e.g. the tenants did not submit a copy of the lease, or they did submit a copy but it got lost in the system, or the landlord did not submit a copy of the ledger showing the amount of the arrears, or the landlord did submit the ledger but by the time the administrator got round to processing the application the ledger was out of date. There is nothing rare about time-outs.

So how does section 15 provide for the time-out scenario? It doesn’t. This means that landlord lawyers will bring motions arguing that a timed-out application means that the case can go forward. The tenants’ lawyers will oppose those motions arguing that the word “denied” means denied, not timed-out. Judges will have to decide whether the time-out is the functional equivalent of a denial (so that the case can proceed) or not (meaning the case remains on ice). A patchwork of decisions emerges across the different divisions of the Housing Court — sometimes even between the judges within one division — and uncertainty and unpredictability ensue until an appellate-level court resolves the matter.

Say hello to the new law, same as the old law

Section 15 is a law that the Legislature originally enacted to help prevent people losing their homes as a result of the governmental response to COVID-19. It was a policy response to three earlier policies (measures with perfectly foreseeable consequences) namely (1) Governor Charlie Baker’s decision to close “non-essential” businesses in 2020 thereby causing mass unemployment; (2) the partial eviction moratoria that President Trump and the Massachusetts Legislature imposed at the federal and State level, which prevented landlords from going to court to seek rent; and (3) the decision by Congress to print/borrow money at a hitherto unimaginable scale thereby reducing the value of the dollar.

Together these three policy choices ensured that the cost of rental housing would rise and that people whom policymakers had impoverished would be unable to afford their housing. Putting eviction cases on hold while tenants apply for rental assistance, which they could have applied for before the landlord started eviction proceedings, adds to the average cost of a nonpayment eviction case. Bear in mind, while the eviction case is on ice, the landlords’ costs continue to accrue; landlords still have to maintain the premises up to Code, pay their employees, and meet their other obligations. Landlords have to keep the premises up to Code and pay their other bills and taxes. They also need to pay their lawyers, and longer cases mean higher legal fees.

How do landlords manage cost increases of this kind? Like other businesses that provide a service, when costs go up they increase the price of the service. They raise the rent.

The previous incarnation of section 15 expired earlier this year. By then, in combination with the other measures that policymakers inflicted on us in 2020-23, it had worked its magic. Housing had become less affordable and many smaller landlords had left the rental-housing business by either taking their properties off the market or selling to larger entities with more capital and better political connections.

Now, having devoted much effort to driving smaller landlords out of business and pushing up the price of rental housing, Beacon Hill leaders want you to help solve the problem by becoming an amateur landlord. Yes, seriously.

Your very own Open Door policy

Earlier this month, Governor Maura Healey declared a state of emergency to address the sudden influx of people who are arriving in Massachusetts in search of, inter alia, free housing. The shelters are full, and apparently there is a dearth of affordable housing in Massachusetts.

According to several media reports, including Boston 25, Lt. Governor Kim Driscoll said, “if you have an extra room or suite in your home, please consider hosting a family.”

When you invite someone else to come live in your home, and you obtain something of value in return (e.g. they help out around the house) you become a landlord. After they move in and you, for whatever reason, come to regret your decision and politely request that your tenants find somewhere else to live but they decline to do so, you will need to go to court.

This is the situation that the Governor and Lieutenant Governor, with their shameless appeal to altruism, are asking you to put yourself in.

On the bright side, right now at least they’re just asking. As I write this, they have still not passed a Quartering Act, which means that your State government is not yet requiring you to open up your door and play host to strangers. But remember, by declaring a state of emergency Governor Healey arrogated to herself the same powers that her predecessor deployed with such care and foresight from March 2020 onward (forgive my sarcasm). So stay tuned.

Photo by Zulian Firmansyah on Unsplash

fair housing, housing court, landlord tenant, law

Masscourts.org: A tool to use with caution

April 28, 2023:-  As part of the applicant screening process, landlords are able to look at masscourts.org, a site that enables the public to search for civil lawsuits. There they can find out whether rental applicants have been involved in any court proceedings, including summary process (eviction) cases and cases where tenants have sued their landlords.

If an applicant has been the defendant in several eviction cases for nonpayment of rent, the landlord may worry that the person may not be a reliable tenant. May the landlord safely reject the applicant for that reason alone? 

I would counsel caution. Although I have not seen any Housing Court rulings on this topic, let alone any appellate-level decisions, I think that rejecting an applicant on the basis of having been the defendant in a summary-process case could be unlawful. Why? Because it might constitute reprisal.

Sword and shield

Reprisals against tenants are unlawful. The relevant Massachusetts statute, G.L. c. 186, § 18, prohibits “any person or agent thereof” from taking reprisals against tenants because of the tenants reporting or complaining about suspected violations or because of the tenants trying to enforce any law, regulation, or bylaw that regulates residential premises. For example, if the conditions in a dwelling fall below what the State Sanitary Code requires and the tenants complain to the board of health, any act of reprisal against the tenants will give the tenants the right to sue for damages.

The rationale is clear. If landlords can evict tenants who complain about sub-standard conditions, tenants will be more likely to put up with bad conditions out of fear of losing the house or apartment. This would cause quality of rental housing to deteriorate. The law’s goal is to protect tenants who complain and thereby encourage landlords to respond to complaints by repairing the bad conditions so that the quality of rental housing to improve.

This law usually comes up when a landlord has taken tenants to court for nonpayment of rent.

If a landlord starts a nonpayment case, the tenants will have a defense if they can show that the reason they were not paying rent was the bad conditions in the dwelling. This defense does not appear in c. 186, § 18, by the way, but in a different statute, namely G.L. c. 239, § 2A. Again, the rationale for this law is obvious: It encourages landlords to respond promptly to conditions complaints so that the tenants will resume paying rent. In the context of a nonpayment eviction, therefore, the law against reprisal operates as a shield.

But reprisal can also serve as a sword, enabling the tenants to go on offense and sue, even if nobody is trying to evict them.

Is it only the tenants’ current landlord who is vulnerable to a lawsuit for reprisal?

No, at least not if my reading of the statute is correct. By prohibiting “any person” from taking reprisals, section 18 encompasses not only the landlord who tries to evict the tenants but also anyone else who retaliates against the tenants, including (arguably) a person who decides not to rent to them because of their exercising those legally-protected rights vis-à-vis their previous landlord.

Let’s say I’m a landlord with a vacant unit and a couple responds to my advertisement by submitting an application. They have great credit and the ability to pay the rent. Before I invite them to a viewing, I check out masscourts.org and learn that one of their previous landlords filed an eviction case against them for nonpayment of rent. So I decline to take their application any further and wish them well with their housing search.

But if the applicants had been withholding rent because of bad conditions (as the law permits them to do) and their landlord — instead of bringing the place up to Code — tried to evict them anyway, I will be depriving this couple of housing solely because they exercised a legally-protected right. In rejecting their application, I am retaliating against them just as surely as their landlord did. If the couple figure out my reason for rejecting their application, could they sue me for reprisal?

I am not a landlord and this is a hypothetical situation. But it is not one that I would like any of my landlord clients to confront in real life.

What to do

Landlords can use information about previous civil cases without engaging in reprisals. Think about the Criminal Offender Registration (CORI) database, for example.  

Some landlords ask applicants to authorize them to run CORI checks as the last step in the application process. The regulations that govern CORI checks (803 CMR 500) allow landlords to do that, so long as they abide by some basic, sensible rules. If the CORI check produces a result, the landlord has to let the applicant know and provide an opportunity to dispute it. A landlord is not allowed to assume that the CORI result is accurate and reject the application for that reason.

This seems like a practical model for how landlords should to treat civil cases. If a landlord learns that the applicants were defendants in a nonpayment case, the landlord could review the court filings. What did the applicants file in response to the previous landlord’s complaint for nonpayment? If the tenants did not file an answer with counterclaims, it might seem reasonable to believe, for the time being, that the tenants had not been withholding rent because of bad conditions. Think of that as a working assumption, and nothing more.

The landlord should still ask the applicants for their side of the story. Perhaps the case settled even before the applicants needed to file an answer, because the Housing Court Specialist examined the Health Inspector’s report (yes, the applicants had called the board of health, which you would not necessarily know just by looking at the list of court filings) and explained how the judge would probably rule. At that point, the plaintiff landlord agreed to waive the arrears and dismiss the nonpayment case, and the tenants agreed to move out and move on.

On the other hand, perhaps the applicants were elective nonpayers, the polite term for tenants who choose not to pay rent and opt instead to game the system by forcing the landlord to file an eviction case, drag out the proceedings as long as they can, then — with the landlord having reached the end of a very long tether — agree to leave so long as the landlord pays them off. Such cases are real, and not as rare as one would wish.

But it would be a mistake to presume that all summary-process defendants are elective nonpayers until proven otherwise. Merely seeing that applicants have been defendants in a summary-process case tells you nothing about why. A presumption of guilt is not only unfair, but also legally hazardous as a potential act of reprisal, in my opinion.

Conclusion

Landlords are free to use masscourts.org as one tool in the applicant-screening toolkit but should bear in mind the risk of being sued for unlawful reprisal. If applicants show up in the court records, landlords should not treat the fact as conclusive evidence that the applicants would be bad tenants and automatically reject the application. Instead, landlords should find out more about the case, both from the court filings and from the applicants.

fair housing, landlord-tenant, State Sanitary Code,

New Sanitary Code Delayed

April 27, 2023:- Landlords in Massachusetts have been preparing to adapt to the new State Sanitary Code, which was supposed to go into effect this month. But today the Department of Public Health announced that the promulgation of the amendments to the Housing Code, 105 CMR 410.000,  Minimum Standards of Fitness for Human Habitation (State Sanitary Code, Chapter II), has been delayed. The email did not give a reason.

For the time being, therefore, the old Sanitary Code remains in effect.

Photo by Levi Meir Clancy on Unsplash

UPDATE

Today (April 28, 2023) the Department stated that it expects to publish the new code on May 12, 2023, which will be the day it goes into effect.

fair housing, housing court, landlord tenant, law, State Sanitary Code,

5 things every landlord needs to know

Every rental agreement in Massachusetts — whether written or unwritten — contains an important clause. It will remain as part of the agreement even if both parties, landlord and tenant alike, want to waive it. No matter how hard you try, you cannot erase it.

What is this ineradicable clause? It is the warranty of habitability. It is the landlord’s guarantee that the landlord will, at a minimum, keep the premises in compliance with the State Sanitary Code, more particularly Chapter II of the Code titled Minimum* Standards of Fitness for Human Habitation.

So one easy way for landlords to breach the warranty of habitability, and land themselves in expensive trouble, is to ignore the State Sanitary Code. Ignoring the Code could result in the landlord having to pay the tenant damages (possibly multiple damages) plus the tenant’s legal fees.

On the other hand, by paying attention to the State Sanitary Code, and making sure that each and every rental unit complies with it, landlords are more likely to live up to the warranty of habitability, stay out of trouble, and maintain a healthy business relationship with their tenants.

State government has posted a synopsis of the responsibilities of landlords in Massachusetts. It is well worth a look. In the meantime, here are some — just some — of the requirements of the State Sanitary Code. The following five items are just a starting point, not an exhaustive list. Landlords and aspiring landlords should familiarize themselves with the Code in its entirety.

1. The Code applies to every dwelling

The State Sanitary Code states:

No person shall occupy as owner-occupant or let to another for occupancy any dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does not comply with the requirements of 105 CMR 410.000

That is a clear rule. If you provide rental accommodation, you must comply with the State Sanitary Code. There are a few exceptions, e.g. hospitals and federal military bases.

What if the would-be tenant says, “Don’t worry about the warranty of habitability. I’m happy to sign a contract waiving it. Or we can say that the apartment is on a federal military base. Just knock $50 off the rent.”

No. The warranty of habitability is not something a tenant can waive. And if the apartment is not on a federal military base a lease provision cannot make it so, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.

2. Minimum living space

The State Sanitary Code establishes the minimum amount of living space that each dwelling unit must consist of:

Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area.

This does not include: rooms containing toilets, bathtubs or showers; laundries; pantries; foyers; communicating corridors; closets; and storage spaces. These parts of the unit do not count toward the square footage of floor space.

There is a separate square-footage requirement for rooms used for sleeping. For one occupant, the sleeping room has to contain at least 70 square feet. For more than one occupant, the sleeping room must have at least 50 square feet for each person, e.g. for two occupants, 100 square feet; for three occupants, 150 square feet.

A unit that is less than 150 square feet, excluding closets and storage spaces, is not a Code-compliant unit. An owner who rents such a unit to a tenant is breaching the warranty of habitability.

What if the unit is 145 square feet, just 5 feet under the minimum, and the would-be tenant says, “I don’t mind. Just knock $50 off the rent?”

No, the landlord is not able to contract out of the warranty of habitability.

3. Kitchen facilities

The unit must contain a kitchen sink and space to store, prepare, and serve food in a sanitary manner, and there must be a stove in good repair. Unless the written agreement puts the obligation on the tenant to provide a stove, the landlord must provide one. In addition, there must be space and connections for a refrigerator.

The kitchen must have at least one lighting fixture and at least two electrical outlets (for the kettle, coffee-maker, toaster, etc.) in “convenient locations.” In practice, this means that the tenants should not have to plug in the toaster down at the skirting board or up by the picture rail!

The Code also requires a kitchen window:

For each kitchen over 70 square feet, transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that kitchen.

What if the would-be tenant says, “I don’t mind not having a kitchen. Just knock $50 off the rent.”

No, the landlord is not able to contract out of the warranty of habitability.

What if the landlord says to the would-be tenant, “There is no light fixture in the kitchen. I could install one if you pay for it.”

“Sure, I’ll pay for it,” says the would-be tenant.

No, the Code says that the owner must provide the fixture and outlets and it defines the word “provide” as “supply and pay for.”

4. Maintaining facilities

Everything that the owner installs, the owner must maintain. For example, the owner has the duty to maintain the toilets, sinks, wash basins, water pipes, sewer lines, and gas lines free from leaks, obstructions, and defects. If the owner installed the stove and refrigerator, the owner must keep them in good repair. When the tenant tells the owner that the faucet is leaking, the owner has to repair it.

Does the Code say what standard the owner must live up to? Yes, the owner must install and maintain facilities “in accordance with accepted plumbing, gasfitting and electrical wiring standards.”

So who should do the plumbing? A licensed plumber. The wiring? A licensed electrician.

But let’s say the kitchen sink has always leaked. It leaked when the landlord bought the place, and it has leaked ever since. During the showing, the landlord says to the would-be tenant,

“The kitchen sink leaks. It’s leaked from the get-go. Somehow I never get around to fixing it.”

“That’s OK,” says the would-be tenant, “I don’t mind a leaky sink. Just knock $10 off the rent.”

No, the landlord is not able to contract out of the warranty of habitability.

5. Windows must be secure

The Code states that in every habitable room other than the kitchen there must be:

transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that room

It also says:

The owner shall provide, install and maintain locks so that… Every openable exterior window shall be capable of being secured.

A habitable room needs a window of sufficient size. If the window is capable of being opened it needs to have a mechanism to keep it from simply sliding or falling open or from being opened from the outside (by an intruder, for example). It needs a lock.

What if the latch on the living-room window fell off?

“I see that the living room window doesn’t have a lock or even a latch that works. Could you knock $50 off the rent?”

“Sorry,” says the owner, “I can’t buy my way out of the warranty of habitability. I’ll install a lock tomorrow. And I’ll send you the bill.”

No, the owner is not allowed to charge the tenant for the cost of making the exterior window secure. The owner’s duty is to provide the lock, and the word “provide” means “supply and pay for.”

Conclusion

Anyone who intends to become a landlord in Massachusetts should become familiar with the State Sanitary Code, and consistently comply with it. Failing to comply with the Code and breaching the warranty of habitability could be a very expensive mistake.

*This is the word to focus on. The State Sanitary Code establishes the minimum standards of fitness for human habitation. Think of it as a floor, not a ceiling.

Photo by Gabriella Clare Marino on Unsplash

eviction moratorium, fair housing, landlord tenant, law

Asking the Legislature to follow the money (i.e. our money)

June 2,2021:- Where is the $12 million of public money earmarked for the Eviction Diversion Initiative actually going?

Finding out is harder than you might think because the body in charge of distributing the money (the Massachusetts Legal Assistance Corporation) says that it is not subject to the Public Records Law. So on behalf of MassLandlords, I asked the Legislature to investigate.

To learn more, you can read my article in the MassLandlords newsletter by clicking here.

Photo by Pepi Stojanovski on Unsplash
fair housing, housing court, landlord tenant, law, massachusetts

New edition of Housing Court Reporter

May 18, 2021:- If you like to read judges’ decisions about landlord-tenant disputes, you will be glad to learn that Volume 9 of the Western Division Housing Court Reporter (an unofficial compilation of decisions and orders issued by the Western Division Housing Court) is available online. To see it, just click here.

Photo by Janko Ferlic on Pexels.com
eviction moratorium, fair housing, housing court, landlord tenant, landlord-tenant, law

Federal eviction moratorium extended

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.

fair housing, housing court, landlord tenant, landlord-tenant, law

What happens when the Massachusetts eviction moratorium expires?

October 9, 2020: – In this short video, I describe the two key things housing providers need to know about when the Massachusetts eviction moratorium expires:

  1. The Federal eviction moratorium ordered by the Centers for Disease Control (CDC) and
  2. Housing Court Standing Order 6-20.
Peter Vickery, Esq.
COVID 19, discrimination defense massachusetts,, fair housing, law

Judge upholds eviction moratorium

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.

Photo by Janko Ferlic on Pexels.com
COVID 19, eviction moratorium, fair housing, law

All work and no pay: Cancel the rent cancellation bill

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.

delivery man wearing a face mask carrying boxes
Photo by Norma Mortenson on Pexels.com

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.
discrimination, fair housing, housing court, law

New fair housing rule from HUD Secretary Ben Carson

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.

2015 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.

2018 suspension

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.

Disparate Impact

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.

Question

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.