Crash Course for Landlords

On Saturday, October 22, 2022, in Springfield, Massachusetts, I will be teaching part of the MassLandlords Crash Course.

This fast-paced course is strictly limited to 16 participants to allow for detailed discussion and Q&A. Course tuition includes:

  • Small group session with the Executive Director, a trained presenter and experienced landlord, and Peter Vickery, Esq..
  • A comprehensive agenda, see below.
  • Your choice of two books:
    • Every Landlord’s Tax Deduction Guide by NOLO,
    • The Good Landlord by Peter Shapiro,
    • Getting to Yes by Roger Fisher, and/or
    • The Housing Manual by H. John Fisher.
  • A bound summary of all material presented.
  • Breakfast pastries, coffee, tea.
  • Lunch sandwiches, sodas, chips, cookies; all dietary requirements satisfied, please notify us when you purchase a ticket.
  • A MassLandlords ballpoint pen.
  • A MassLandlords certificate of completion and permission to use “MassLandlords Crash Course graduate” on your marketing material.

You will receive a box packed with your personalized signed certificate, your choice of two books, course notes, pen, and half a dozen other pieces of literature.

To register click here.

The Crash Course is a program of MassLandlords, Inc., the statewide membership organization of housing providers that I am proud to serve as Legislative Affairs Counsel.

Photo by Bernie Almanzar on Unsplash

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

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

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.

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

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.

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.

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.

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

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

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

How will Beacon Hill respond to rising rents?

May 28, 2021:- Rents are rising again in the United States, according to Fannie Mae as reported by Bloomberg.

This affects everyone, not just renters. Why? Because, as this article in the Wall Street Journal points out, it contributes to inflation:

“Higher rents could play a role in an anticipated rise in inflation, unleashed by waves of stimulus checks, low borrowing rates and pent-up demand after months when the pandemic damped consumer spending. Rent accounts for about one-third of the consumer-price index, which economists expect to tick higher in the months ahead.”

Will Paker, “Apartment Rents Rise; Perks, Discounts Fade: Covid-19 vaccine rollout, higher employment bring more people back into cities looking to rent,” Wall Street Journal (April 24, 2021). Paywall.

Talk of inflation always makes me think of Berlin, of which more below.

Why are rents rising? I do not pretend to be an economist but I suspect that the governmental response to COVID-19, e.g. eviction moratoria, might have something to do with it. After all, if you want to make something more expensive, you make it scarce.

The effects of rising rents on renters – known to politicians as “voters” – are obvious and unwelcome. How the politicians will respond to the predicament of these voters is less obvious. But were I a betting man, I would remember that the number of voters who are renters is vastly greater than the number of voters who are landlords, and put money on the politicians doing something that panders to renters. Sadly, as the Duke of Wellington once pointed out, something is usually the wrong thing to do.

Here in Massachusetts, I expect that lawmakers will enact new measures to supplement the laws that they enacted during the State of Emergency, measures that on the face of it look friendly to renters and not so friendly to landlords. Even if those laws helped cause rents to rise (the phenomenon that actually hurt renters) they will opt for more of the same.

I now refer to this approach to policymaking as the Father Ted Fine-Tuning Approach. Click here to see what I mean.

If they were trying to drive you out of business, what would they do differently?

What proposals have lawmakers tossed into the legislative hopper so far? At the start of the session State Representative Mike Connolly, a Democrat and member of Democratic Socialists of America, sponsored a bill to cancel rent, HD.4072.

That particular bill seems to be in limbo, but another of Representative Connolly’s bills, H.1378, is moving along. It would enable towns and cities to impose rent control. Lest owners try to avoid rent control by taking their units off the market, Representative Connolly has another bill that would allow municipalities to impose excise tax on units that are vacant for more than 90 days (H.2852).

Representative Connolly’s bills reflect the mood of the Boston chapter of Democratic Socialists of America, which considers rising rents, along with evictions, something to “fight.” The Boston DSA site states that its Housing Working Group is

“concerned with organizing around one of our most fundamental rights — the right to a stable and affordable home. In Boston this right has come increasingly under attack as rent prices skyrocket, rising by 25% in the last five years. The Housing Group works closely with City Life Vida Urbana, a local tenants rights organization, as well as other community groups, to fight rent increases and evictions in the neighborhoods where these trends are most acutely felt.”

So in answer to the question I get asked from time to time by landlords in Massachusetts, “Are they trying to drive us out of business?” the answer is a qualified yes. If by “they” you mean state legislators, I do think some of them are trying to drive landlords out of business. Those who are committed socialists wish to bring real estate, including rental properties, under government control.

The first draft of the Democratic Socialists of America 2021 platform states that:

“As socialists we ultimately believe in the abolition of capitalism and the creation of a democratically run economy that would provide for people’s needs without the distortion of the profit motive, and we support economic regulation that moves us closer to that vision.”

Not surprisingly then, one of the party’s medium-term goals is to:

“Nationalize and socialize (through worker and community ownership and control) institutions of monetary policy, insurance, real estate, and finance.”

That is on page 4, under the title Economic Regulation.  On pages 9-10, under the title Housing, the Democratic Socialists of America announce that:

“We seek to use this [COVID-19] crisis to build on the insurgent tenant movement and further decommodify housing and land. This can be done through canceling rent, closing eviction courts, and, as landlords exit the market, using State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.”

In this way the first draft of 2021 platform of Democratic Socialists of America offers a clear answer the question “Are they trying to drive us out of business?” Yes, they wish to use the COVID-19 crisis to cancel rent, close eviction courts, “and, as landlords exit the market, use State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.” Their words, not mine.

As the long-term demand, they want “democratically controlled, publicly run housing everywhere.” The medium-term demand?

Pass a universal tenants bill of rights that includes:

  • Right to renew your lease
  • Universal rent control
  • Right to organize a tenants’ union in your home
  • Universal right to counsel in housing court

Organizing a tenants union, or anything else, will pose a challenge if the Democratic Socialists achieve one of their medium-term Economic Regulation demands namely the “public ownership and control of social media platforms.” With the government controlling social media, good luck organizing anything more than the occasional day-trip to the tractor factory for the Young Pioneers.

But kudos to Democratic Socialists of America for their candor about wanting to use the COVID-19 crisis to drive landlords out of business and, more generally, “economic regulation that moves us closer to that vision.” What vision? The abolition of capitalism.

Onward to Berlin

When DSA legislators promote measures that a reasonable objective observer with some experience of rental housing, markets, and human nature would consider antithetical to the continued private ownership of rental properties, those legislators are not being naïve. They are being dedicated. In contrast, when non-DSA legislators – rank and file Democrats of the go-along-to-get-along variety – endorse these measures, naivete is the most generous word to describe them with.

Bills that are already popular among non-DSA Democrats in the State House are H.1434, which would effectively prohibit evictions for non-payment of rent, and H.1426, which would give tenants the right of first refusal if the owner tries to sell (thereby automatically delaying by months any sale to someone other than the tenants or the organization of their choice). This will make the business of being a landlord more difficult, and it is important to remember that this not a bug but a feature.

What’s next? How will they get from rendering the business of being a landlord increasingly difficult to making it completely non-viable? That is, after all, the avowed goal of Democratic Socialists of America. Perhaps they will look to Berlin.

As I mentioned, at the mention of inflation my mind turns to Berlin (here’s why) so I looked into what left-leaning Berliners are up to nowadays. As luck would have it, some of them are promoting a measure that I am sure the Democratic Socialists of America would approve of, namely the expropriation of rental properties. Expropriation is where the government takes private property (in the US we refer to it as eminent domain).

Slate covered this campaign recently, putting in the context of rising rents:

“Data from Guthmann Estate, a real estate company in Berlin, shows that the median rent in the city rose by more than 70 percent between 2012 and 2021.”

Here’s a link to an article on the same subject titled “We Want a Society Without Landlords” in Jacobin magazine, a publication that describes itself as “a leading voice of the American left, offering socialist perspectives on politics, economics, and culture.” The authors explain that seizing 240,000 units of private housing is not really all that radical, which alone makes it is well worth a read.

Socialists in Berlin want to stop landlords from raising the rent by stopping them from being landlords. Like many ideas that people tried in the 20th century, it has the allure of simplicity.

To solve the rising-rent problem in Massachusetts, perhaps DSA will try to put a question on the ballot to take by eminent domain rental units that have remained vacant for 90 days or more (or just take all rental units, which would be more efficient).

I think not, but not because I doubt their candor. Democratic Socialists of America are admirably up-front about their wish to use the COVID-19 crisis to cancel rent, close eviction courts, “and, as landlords exit the market, use State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.”

Why would they not put expropriation on the ballot?

Because it is not necessary. All they have to do carry on making it harder and harder for private property owners to provide rental housing and before long those owners will, as the Democratic Socialists of America predict, exit the market. Onward to Berlin. East Berlin, that is.

Photo by Aneta Pawlik on Unsplash

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.

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

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

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.

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.