Category: housing court

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.

housing court, landlord tenant, law

A new form for landlords

April 21, 2023:- Massachusetts now requires landlords who are serving notices to quit for nonpayment of rent to also serve a document called the Form to Accompany Residential Notice to Quit.

Like the old Attestation Form, which landlords no longer have to serve, the new form states in all caps:

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.

That’s the important part, I think, from the Legislature’s point of view, and, to be fair, it is an accurate statement of the law. Of course, it would also be an accurate statement of the law to say “landlords are entitled to receive rent,” but the form does not include anything to that effect.

No checkbox for covered dwellings under the CARES Act

The new form differs somewhat from the Attestation Form, which required the landlord to tell the tenants whether the property was a “covered dwelling” under the federal CARES Act. The new version does not have a checkbox for that, although it does include the following paragraph that advises the tenants:

If you live in a building with five or more units, or if you receive a HUD tenant-based voucher, you may have more federal protections. If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then your Landlord may be required to give you written notice at least 30 days before filing an eviction claim.

The document titled “Instructions for Landlords” offers landlords who are completing the form the following helpful advice:

If your property is a “covered dwelling” under section 4024(a)(1) of the federal Coronavirus Aid, Relief, and Economic Security Act, P.L. 116-136 (the “CARES Act”), then you may be required to give your tenant written notice at least 30 days before filing an eviction claim. You should use diligent efforts to determine whether your housing unit is a “covered dwelling” under the CARES Act, and whether the notice to quit complies with the CARES Act notice requirements.

Using diligent efforts to find out whether it is necessary to give 30 days’ notice as opposed to 14 days’ notice is a very good idea, because failing to give sufficient notice could result in the judge dismissing the summary process case and the landlord having to start all over again with a new notice to quit. This could happen some months after the landlord served the notice to quit, during which time the tenants will probably not have been paying rent.

A new checkbox

Instead of a checkbox requiring the landlord to tell the tenants whether they are entitled to a 30-day notice to quit, the new form has a checkbox by which the landlord tells the tenants whether they (the landlord and the tenants) have entered into any agreements about paying the overdue rent. In my experience, people who enter into agreements tend to know about it, but the drafters of this form may have had completely different experiences. In their experience, perhaps, people enter into agreements by accident all the time and never even notice.

The State seems to base this requirement — that the landlord inform the tenants whether they have entered into any agreements with the landlord — on the assumption that the tenants would not already know whether they had entered into any agreements with the landlord. Why the State would assume such a degree of ignorance on the part of people who are tenants is beyond me. As I said, perhaps the life experience of the State employees who drafted the form is completely different from my own. On the other hand, they may just be condescending.

No “covered dwelling” checkbox

Anyway, that is what the new checkbox is for, so that landlords can tell tenants something they already know. Gone is the old checkbox that required landlords to tell tenants something that they might not already know, i.e. whether the property is a “covered dwelling” within the meaning of the federal CARES Act.

Requiring landlords to check a box stating whether the building was a “covered dwelling” tended to encourage landlords to find out ahead of time, or to err on the side of caution and give 30 days’ notice even if the tenants were only legally entitled to 14 days’ notice.

Dispensing with the “covered dwelling” checkbox removes that incentive and thereby increases the likelihood that some landlords who should give 30 days’ notice will give only 14 days’ notice. Those landlords are more likely to have their eviction cases dismissed.

Readers disposed towards suspiciousness may sense a familiar tingle.

Affidavit of Compliance

In addition to the new form, there is one more document worth noting. After the notice to quit has expired and the tenants have still not paid the arrears, the landlord will need to commence summary process (eviction) proceedings. When filing the case, the landlord has to include an affidavit confirming that the landlord did indeed serve the Form to Accompany Residential Notices to Quit.

Conclusion

Landlords serving notices to quit for nonpayment of rent need to remember to: (1) determine whether the property is a “covered dwelling” and how much notice is necessary; (2) complete the form; and (3) include the completed form with the notice to quit. When filing the case in court, landlords need to file the affidavit along with the summons and complaint and the notice to quit.

housing court, landlord tenant, law, massachusetts

New decisions from Western Division Housing Court

September 21, 2022:- Another volume of the Western Division Housing Court Law Reporter is available online.

The reporter  is an unofficial compilation of decisions and orders issued by the Western Division Housing Court. It is a collaborative effort by and among several individuals representative of the Court, the local landlord bar, the local tenant bar, and government practice.

For Volume 16, just click here.

Photo by Henry Be on Unsplash
housing court, landlord tenant, law

New edition of unofficial Housing Court reporter

May 31, 2022:- The latest volume (number 14) of the Western Division Housing Court Reports is available online. It is the unofficial compilation of decisions and orders issued by the Western Division Housing Court, published for the benefit of lawyers, landlords, tenants, and the public at large.

To peruse the reports, click here.

Photo by Janko Ferlic on Pexels.com
housing court, landlord tenant, law

Alternatives to eviction

Would you like to know about alternatives to eviction and ways to settle disputes before they end up in Housing Court?

Photo by Jozsef Hocza on Unsplash

At 6:00pm, Wednesday, June 1, 2022, I will be giving a Zoom presentation to MassLandlords members — and potential members — on the subject of relocation assistance agreements (cash-for-keys in the vernacular).

If the prospect of Housing Court litigation has you reaching for the TUMS®, a cash-for-keys agreement offers a healthy alternative, but it is not to everybody’s taste. I will discuss some of the essential ingredients, and why this item on the menu proves appetizing to some but unpalatable to others.

The event is free and open to the public.

For the event link click here.

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 three exceptions to the rule for landlords to know about: (1) dwellings on campgrounds that comply with the applicable State regulations for campgrounds, and (2) dwellings used exclusively as civil defense shelters. Those two exceptions are very narrow. The other exception? If the dwelling is covered by another part of the Code.

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 I’m using the apartment exclusively as a civil defense shelter. Just knock $50 off the rent.”

No. The warranty of habitability is not something a tenant can waive. And if the apartment is an ordinary rental unit, it not exclusively a civil defense shelter. A lease provision cannot transform an ordinary apartment into a civil defense shelter, 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

housing court, landlord tenant, law

Rent control: New name, same aim

April 12, 2022:- Rent control has a new moniker: It now identifies as “rent stabilization.” You know when a policy is unpopular when its advocates give it a new name. Even today, when face-masking, mind-closing, and line-toeing are all the rage among the bien pensant, a policy with the word “control” right there in the title just doesn’t sit well, I guess.

But the reason for the policy’s unpopularity is not the name but the aim. And what is the aim of rent stabilization (née rent control)? An article in Jacobin explains. It has the headline “New York Needs Universal Rent Control Now,” and a sub-headline that tells you why: “Rent control can build tenant power and undermine the logic of speculative neighborhood investments.”

The phrase “undermine the logic of speculative neighborhood investments” is a reasonably to-the-point way of expressing the idea “abolish private property.” You can count on a forthright explanation from a magazine named after the movement that was responsible for the Reign of Terror during the French Revolution.

Lest readers doubt that the editor responsible for writing the headlines and sub-headlines at Jacobin got it wrong, here is a quote from the article itself:

By discouraging speculation and lowering the value of investment properties, it lays the groundwork for an expansion of alternative housing models, like social housing and community land trusts. 

Discouraging speculation? That speaks for itself, as does “lowering the value of investment properties.” Similarly, the expansion of social housing (in plain English, government housing) and community land trusts (in plain English, government housing) means the contraction of something else, i.e. privately owned housing.

Why is this expressly Statist, anti-market policy of rent stabilization (née rent control) back on the political agenda in Massachusetts and elsewhere? In short, because the politics of the people who write for Jacobin are the politics of the people who are setting the agenda for the Democratic Party in Massachusetts, namely the supporters of Democratic Socialists of America (DSA).

DSA stalwart State Representative Mike Connolly of Cambridge has a bill, H. 1378, that includes an option for towns and cities to enact rent control. The Joint Committee on Housing is scheduled to vote on it next month.

Myself, I believe that affordable good-quality housing is more likely to emerge through markets than through policies such as rent control. That is a belief that some committed socialists share, and it is exactly why they want rent control. From the perspective of a dedicated revolutionary, if rent control reduces the amount of affordable housing, thereby exacerbating the situation, fomenting discontent, and stimulating revolutionary conditions, so much the better.

From the standpoint of the true socialist, in the long run no housing reforms are safe without a wholesale socialist transformation of society.

But reasonable people who wish to address the need for more affordable housing (and are not revolutionary socialists or even gradualist socialists) may find the arguments for and against rent control evenly poised. They may be on the fence about it.

There are plenty of reasons to oppose rent control (click here for a few) but here’s one that the fence-sitters might — just might — think about:

Rent control artificially reduces housing units’ value, forcing housing providers to offer their properties at below-market rates. This dramatically reduces developers’ incentive to construct new units, as the artificially deflated rental market offers a lower return on investment. In cities that implement rent control, new construction decreases dramatically, producing substantial declines in the availability of rental housing.

That’s a quote from an op-ed by Drew Hamrick, senior vice president of government affairs and general counsel for the Colorado Apartment Association, writing in Colorado Politics. The bill Mr. Hamrick opposes would impose rent control on Colorado’s mobile-home parks.

Yes, it’s not just Massachusetts. Even in Colorado — longtime home of Hunter S. Thompson, birthplace of Duane “Dog the Bounty Hunter” Chapman, and where it is illegal to lend your vacuum cleaner to your neighbor — questionable ideas sometimes find their way onto the agenda.

To be fair, the socialists have a response to people like Drew Hamrick. To the claim that rent control reduces the amount of new rental housing, they say “oh no it doesn’t.” For an article in Jacobin countering the pro-private property argument with data, click here. For arguments from the libertarian-leaning Cato Institute in favor of private ownership and against rent control, also with data, click here.

Please do me a favor and read the arguments for and against rent control.

As a former socialist whose mind changed after much experience, reading, and reflection, I am grateful for the liberty to read works that express ideas that differ from my own. Of course, that very liberty depends entirely on another liberty: the liberty to own and sell property. If one entity (the State) controls your ability to make the money with which you can buy food, shelter, and whatever else you need and desire, your ability to criticize that entity will be very constrained. Without that liberty to criticize through writing and speech, dissent sounds like this. And that, fundamentally, is why rent control is a bad policy.

eviction moratorium, housing court, landlord tenant, law

The case for not enacting a new eviction moratorium

September 7, 2021:- Massachusetts legislators are considering H. 1434, which would establish a moratorium on non-payment evictions. It would not ban all evictions, only a subset of evictions “where the plaintiff’s complaint is based upon or includes any claim for rent or use and occupancy.” The bill has an emergency preamble, and it’s supposedly related in some way to COVID-19.

Nothing can justify another ban on people regaining possession of their property from those who are occupying said property without paying rent. The article in this week’s Massachusetts Lawyers Weekly on that subject quotes me, accurately:

“In January, the pandemic was killing about 3,000 people a day, notes Amherst attorney Peter Vickery. But as vaccines have been distributed, the death rate has declined dramatically, down to about 150 people a day.

Vickery references the New Jersey law that prohibits motorists from pumping their own gasoline. There may be some very real concerns that led to the passage of that law, but there is an ‘extraordinary mismatch between the threat and the policy.'”

I mis-stated the current daily death toll, which is now around 400-500, up from about 200 per day in July but still a far cry from the January 2021 average of 3,000. Yesterday (September 6, 2021) in the United States there were 246 deaths from COVID-19, according to the CDC. For the CDC’s tracker of daily deaths from CIVID-19, click here.

NJ ban on amateur gas-pumping

But what does the New Jersey law against pumping your own gas have to do with eviction moratoria? For readers who are curious, please consider the findings that NJ legislators included in the statute so as to justify the self-pumping ban (NJSA 34:3A-4), which findings include:


“(d)… [R]isks of crime and fall-related personal injury, which are a special burden to drivers with physical infirmities, such as the handicapped and some senior citizens;

(e) Exposure to toxic gasoline fumes represents a health hazard when customers dispense their own gasoline, particularly in the case of pregnant women;

(f) The significantly higher prices usually charged for full-service gasoline in States where self-service is permitted results in discrimination against low income individuals, who are under greater economic pressure to undergo the inconvenience and hazards of dispensing their own gasoline.”

These are all plausible risks. But do they really justify banning amateurs from filling our own gas tanks and leaving the job to trained pump attendants? No. In the rest of the United States, people manage to pump their own gas without triggering the Apocalypse. Similarly, nor does the potential for spreading COVID19 justify a ban on people regaining possession of their own property from those who are not paying rent.

As the Supreme Court of the United States held recently regarding the Biden administration’ unconstitutional non-payment eviction moratorium:

“The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”

Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (U.S. Aug. 26, 2021).

Massachusetts legislators should read this decision and, before criticizing it, think about the Court’s reasoning.

Photo by Kyle Glenn on Unsplash

Our right to own property is one of the many rights that the State and federal Constitutions guarantee. It is not untrammeled, but it is is not something that legislators can violate on a whim. Here in Massachusetts, the Supreme Judicial Court has held:

“[S]ubstantive due process requires a statute affecting a fundamental right to be narrowly tailored to achieve compelling government interests.”

Sharris v. Commonwealth, 480 Mass. 586, 593, 106 N.E.3d 661, 668 (2018). Is the right to exclude non-paying tenants from your property a fundamental right? If it is, the court should apply strict scrutiny and require the Commonwealth to show that the law is narrowly tailored to further a compelling government interest.

Even if the court were to apply the weaker intermediate-scrutiny test, the non-payment eviction moratorium should fail. To pass this test, the Commonwealth would have to show a reasonable, proportional fit between the law and an important governmental interest. Here, what connection could there be between a ban on non-payment evictions and the governmental interest, i.e. slowing the spread of COVID19?

The reason that the CDC gave for its non-payment eviction moratorium — and that moratorium advocates continue to echo — was that “evicted renters must move.” They may move into “shared housing or other congregate settings” (of course, they may be moving from shared housing or other congregate settings, but no matter). And their relocation may even entail “crossing State borders.”

What H. 1434 would not do

Surely, if people moving from one place to another is such a risk enhancer, the Legislature should put a stop to it altogether.

But does the Legislature wish to ban all of us, renters and homeowners alike, from moving house? No, it is not trying to prevent people who own their own homes from selling them and going to live somewhere else.

Does the Legislature wish to ban tenants from relocating of their own accord? No.

Does the Legislature wish to ban all evictions? No.

Does the Legislature wish to ban judges from evicting tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment? No.

For this bill to be a good fit, there would have to be some evidence that tenants who do not pay rent are more likely to contract and transmit COVID-19 than the tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment. And that is just silly.

Yes, deaths from COVID-19 are higher than they were in July, but nowhere near the high of January-February 2021. Most adults in the United States — and about 90% of those aged 70 and over — have been vaccinated against COVID-19, and those vaccinations work (click here for a recent article in the Atlantic magazine on that subject). Even if there had been a good reason for H. 1434 in early 2021 (and there was not) that reason has gone.

Conclusion

The only kinds of evictions that the Legislature wishes to ban with H. 1434 are evictions where the landlord is trying to get paid. That might make the bill’s proponents feel good, but it would not reduce the transmission of COVI-19.

COVID 19, eviction moratorium, housing court, landlord tenant, law, separation of powers

CDC EVICTION MORATORIUM DISCUSSION: SEPTEMBER 8

August 25, 2021:-Attorney Wayne Detring of Franklin, Tennessee, is not someone I had heard of before yesterday but, as a result of his letter to the editor of the Wall Street Journal, he is going on my Christmas card list.

Attorney Detring pointed out that after President Biden repeatedly said that there was no legal basis for extending his predecessor’s eviction moratorium (and then went ahead and did it anyway) the administration’s lawyer put his name to a court document arguing that, contrary to his client’s repeated and accurate public statements, the moratorium is lawful. That sort of conduct verges on the unethical, wrote Attorney Detring (see below).

Here is the President saying that the courts had ruled that the previous CDC eviction moratorium was unconstitutional and that although most constitutional scholars think that a new one would be “unlikely to pass constitutional muster” a few think it might and by the time a challenge gets through the courts the order will have served its purpose.

Clearly unconstitutional

The court decision President Biden was referring to was the one that Judge Dabney Friedrich of the U.S. District Court for the District of Columbia issued back in June. “The question for the Court is a narrow one,” wrote Judge Friedrich.

“Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

The reason has nothing to do with the wording or extent of the CDC’s eviction moratorium. The reason is simpler than that. As an executive branch agency, the CDC may only act within the parameters that Congress has set for it, and Congress has never granted the CDC the authority to ban people who own rental property from going to court when tenants do not pay rent. The CDC does not have, and never has had, that authority.

At the end of June, Supreme Court Justice Brett Kavanaugh stated that a moratorium extension would need clear and specific congressional authorization via new legislation.

Nevertheless, when Congress did not enact any such clear and specific authorization, President Biden issued another eviction moratorium through the CDC.

New order

The Alabama Association of Realtors quickly challenged the new moratorium.

In response, the Solicitor General filed a reply in which he argued that Congress had given the CDC authority via 42 USC 264(a), enacted in 1944, which provides that:

“The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

According to the Acting Solicitor General of the United Stats, Brian H. Fletcher, by way of this provision in the 1944 statute Congress gave the head of the CDC discretion to “prevent the movement of persons to prevent the spread of communicable disease.” To be fair, he was quoting the Court of Appeals for the District of Columbia when it rejected the request from the Alabama Association of Realtors to vacate the stay of Judge Friedrich’s previous order. But at the time the Solicitor General filed the reply it was already clear that five justices of the Supreme Court of the United States share the opinion of Judge Friedrich that the 1944 statute, which (prior to President Trump) had never been used in this way, does not confer the necessary authority.

Professional Conduct

If you think there ought to be a rule against this sort of thing, there is, as Attorney Detring points out:

“Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct prohibits lawyers from bringing or defending a proceeding unless there is a basis in law or fact for doing so. Rule 11 of the Federal Rules of Civil Procedure states that by signing or submitting a pleading, an attorney certifies that it is not presented for any improper purpose, such as to ‘cause unnecessary delay.’ Rule 11 also provides a process for sanctioning violators… Ordinary practicing attorneys would be in grave danger of sanctions for filing a pleading knowingly unsupported by law or fact, and by admittedly filing the pleading for the purpose of delay.”

Good point, I think.

Discussion

President Biden’s conscious decision to issue an unlawful order will be one of topics up for discussion at an event MassLandlords has scheduled for September 8 titled “Are Eviction Moratoriums the New Normal?” The other points up for discussion:

Courtroom challenges to the CDC moratorium;

  • The “state moratorium 2.0” currently pending the Massachusetts Legislature; and
  • What litigation might be brought to bear against a new Massachusetts eviction moratorium.

I will be one of the three speakers, together with Attorney Jordana Roubicek Greenman and Attorney Richard Vetstein. For the event link, click here.

housing court, landlord tenant, law, security deposits

Help session on security deposits

A security deposit slip up can spoil a seemingly straightforward summary process case. So MassLandlords is holding a virtual lunch-and-learn session for housing providers (12 noon on Tuesday, July 20, 2021) where I will provide an overview of this slippery subject and answer questions.

To register visit masslandlords.net/events

Banana photo by Milo Bunnik on Unsplash

eviction moratorium, housing court, law

EVICTION MORATORIUM EXTENDED THROUGH JULY 2021

June 24, 2021:- President Biden has extended President Trump’s eviction moratorium again. The Centers for Disease Control (CDC) announced that the moratorium will remain in effect until the end of July 2021.

For the order itself click here.

For an opinion piece from the Cato Institute regarding the unconstitutionality of the CDC order, click here.

https://www.whitehouse.gov/
housing court, landlord tenant, law, supreme judicial court

Home owner not liable for shooting death, SJC rules

June 7, 2021:-  The owner of a short-term rental property was not liable for the shooting death of a man who attended a party at the property, the Supreme Judicial Court (SJC) announced today in the case of Heath-Latson v. Styller.

The shooting occurred in May 2016 at the Lynnfield home of Alexander Styller, who let the house to a group of people as a short-term rental. Here is a link to the NECN coverage.

Ostensibly the booking was for a college reunion but via social media one of the group advertised the gathering as a “Splash Mansion Pool Party.” Approximately 100 people attended and in the early hours of the morning the local police received a call that somebody had been shot.

The estate of the decedent, Keivan Heath, sued the organizers and Mr. Styller (the homeowner) in Superior Court. The judge allowed Mr. Styller’s motion to dismiss, and the case went to the SJC. In upholding the dismissal, the SJC stated:

“A duty to protect against harm caused by the conduct of a third person arises where there is a special relationship between a defendant and a plaintiff such that the defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so…

Here, the complaint alleges no facts suggesting that the defendant had a duty to protect the decedent from wrongdoing of a third party. Although the complaint cites a finding made by a Land Court judge in a related case that that short-term rentals have significant external effects on the neighboring community and community at large, it does not allege that short-term rentals are correlated with an increase in violent crime.”

Heath-Latson v. Styller (internal citations and quotation marks omitted)

The decision reiterates the duties of a landlord and the limits on those duties.

The SJC issued another decision involving Mr. Styller today, namely Styller v Zoning Board of Appeals of Lynnfield, in which the court upheld the ZBA’s determination that the zoning bylaw prohibited short-terms rentals even before it did so expressly in 2016.

Photo by Sora Shimazaki from Pexel

COVID 19, eviction moratorium, housing court, landlord tenant, law

New lawsuit against CDC

May 19, 2021:- The Florida Association of Realtors® and R.W. Caldwell, Inc., have filed a complaint in the United States District Court in the Middle District of Florida, Tampa Division, asking the court to set aside the partial eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed, first at the direction of President Trump and then at the direction of President Biden.

One judge did just that quite recently. In early May Judge Dabney Friedrich set aside the partial eviction moratorium but stayed the order, i.e. put it on hold, while the Biden administration appeals the case. This means that the CDC partial eviction moratorium remains in effect for the time being.

This new complaint asks for the same kind of relief that Judge Dabney ordered earlier in the month.  I quote two paragraphs of the complaint that get to the heart of the matter.

Paragraph 40 of the complaint states:

“The Eviction Moratorium contains no findings and relies on no evidence to support its stated assertion that Covid-19 will spread between states or United States territories if landlords are permitted to exercise their contractual rights to evict tenants who fail to make rent payments as required by their leases.”

That is why I call it a partial eviction moratorium, by the way. It only covers some evictions, i.e. nonpayment cases. Why the tenants in that kind of case are more likely than tenants in other sorts of cases (e.g. those being evicted for, say, criminal activity) to contract and transmit COVID-19 is not clear, at least not to me.

And the CDC certainly did not issue a moratorium on moving house. House sales have done very well during the emergency, I believe. Lots of people are buying and selling, moving from place to place. The CDC did not try to ban residential real estate transactions.

Getting to the constitutional argument, paragraph 5 of the complaint states:

“The CDC predicates this unprecedented action on its statutory authority to prevent the interstate spread of disease, but that authority does not make the CDC the nation’s landlord-in-chief any more than it places the CDC in charge of citizens’ social media or the national minimum wage. Were it otherwise, then Congress would have impermissibly turned over its lawmaking authority to an unelected administrative agency. The United States Constitution and its nondelegation doctrine prevent Congress from doing so. Indeed, the Constitution does not authorize Congress or the CDC to interfere with the purely local matter of tenants’ occupancy of individual rental properties.”

What’s the problem with an unelected administrative agency exercising the lawmaking authority that the Constitution grants exclusively to the Congress? Why is it unconstitutional for unelected government employees to legislate?

The reason has to do with democratic accountability, an essential requirement for a self-governing republic of free people, and stripped of legal jargon it is this: We can’t throw out those rascals. The only rascals We the People can throw out are the rascals we elected in the first place. Unelected rascals are beyond our reach.

What will happen to the CDC’s partial eviction moratorium? Stay tuned.

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
COVID 19, housing court, landlord tenant, landlord-tenant, law

Housing law update

March 29, 2021:- Today the Biden administration announced that it will extend the Centers for Disease Control partial eviction moratorium to June 30, 2021.

In the meantime, here in Massachusetts housing providers who go to Housing Court to try to obtain unpaid rent and to eventually regain possession of their property are up against taxpayer-funded lawyers. Tenants obtain counsel at no charge; housing providers must pay, unless they can find a lawyer who will work for free. To misquote Animal Farm, some equal protection is more equal than others.

To read my latest article on the subject for MassLandlords, click here.

Animal Farm, by George Orwell
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.
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.

COVID 19, housing court, law

Referendum to the rescue? New bill would cancel the rent, ban evictions, and make Housing Court cases secret

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.

white and teal safety ring
Photo by Athena on Pexels.com