Civil rights group challenges CDC eviction moratorium

September 9, 2020:- The New Civil Liberties Alliance filed a complaint that challenges the constitutionality of the CDC’s order that purports to ban evictions nationwide. For the press release, click here.

The organization is also seeking a temporary restraining order to prevent Health & Human Services Secretary Alex Azar implementing the order. My opinion, for what it’s worth, is that the CDC order exceeds the agency’s authority by a country mile. Stay tuned for updates.

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Secretary Alex Azar (public domain)

New federal eviction moratorium

September 2,2020:- Yesterday the Centers for Disease Control & Prevention (CDC) issued an order prohibiting evictions. For the fact sheet from the White House, click here. Before going any further, let me quote a pertinent passage:

“This Order does not apply in any State… with a moratorium on residential evictions that provides the same or greater level of public health protection than the requirements listed in this Order.”

If “public health protection” means eviction moratorium, then (assuming Governor Baker extends the moratorium through the end of 2020) the federal order would not apply in Massachusetts. The partial eviction moratorium here is much broader than the CDC’s.

Readers who care about old-fashioned concepts like law might be wondering, “what is the statutory authority for this order?” The agency cites section 361 of the Public Health Services Act.

As for whether the order is lawful and constitutionally sound, perhaps someone will sue and ask a judge to decide.

In terms of common sense, do the circumstances justify the order? I offer two screenshots from the CDC, and ask you to decide for yourself. The first screenshot is from the order. The second is from the agency’s recent provisional weekly COVID 19 death count. I urge you look at the full document.

If you have an opinion to share, please use the form that appears below screenshot 2.

Screenshot 1
Screenshot 2

Judge upholds eviction moratorium

August 26, 2020:- Today Suffolk Superior Court Judge Paul D. Wilson declined to issue a preliminary injunction against the Massachusetts eviction moratorium. Ruling that the moratorium does not amount to an uncompensated taking because “it does not deprive Plaintiffs of all economically viable use of their land” the judge also pointed out something that housing providers may find helpful:

[T]he economic effect on landlords is mitigated not only by their ability to sue non-paying tenants for breach of contract, but by the temporary nature of the moratorium.

For the purposes of seeking a remedy in the here and now, it is the first part of the sentence that merits attention. Picking up on a point that representatives of the tenants’ bar raised in oral argument, Judge Wilson statement suggests that even though they cannot start summary-process actions, landlords can still sue non-paying tenants for breach of contract.

Photo by Janko Ferlic on Pexels.com

All work and no pay: Cancel the rent cancellation bill

July 27, 2020:- What if the law forced you to go to work every day and then, if the boss refused to pay your wages, prohibited you from suing? Imagine having to provide the service, and not being able to make the other side stick to their end of the deal.

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Photo by Norma Mortenson on Pexels.com

All work and no pay isn’t fair. But that’s the situation confronting many housing providers in Massachusetts right now. The law requires them to house their tenants even if the tenants can’t — or won’t — pay rent.

As if that weren’t bad enough, a bill that would flat out cancel the rent had garnered much support in the Massachusetts State House. Even as I write, an effort is underway to tack the proposal (together with the tried-and-failed policy of rent-control) onto another bill by way of amendments.

But it has not become law yet.

There is still time to tell your state representatives and senators what you think. The deadline is 12 noon tomorrow, Tuesday, July 28, 2020.

To submit your testimony on H4878/S2831 click here.

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.

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Photo by Athena on Pexels.com

Lawmaker calls on Governor to extend moratorium

June 30, 2020:-  The eviction moratorium will expire in mid-August, unless Governor Baker prolongs it.  Unfortunately according to this story in MassLive and this Tweet (below), Representative Kevin Honan is urging the Governor to extend the moratorium.  I would not worry about a state representative weighing in but for the fact that this one is House chair of the Joint Committee on Housing and, therefore, somebody to whom the Governor might be inclined to listen.

For my argument as to why the Governor should let the moratorium expire (principally its negative impact on affordable housing) click here.Rep Honan tweet

 

 

Senate to consider extending and expanding eviction moratorium

June 15, 2020:-  Before the Massachusetts Legislature imposed an eviction moratorium, Congress enacted a limited moratorium of its own. It lasts 120 days and is confined to properties participating in federal programs including, at the very outer edge, properties with federally-backed mortgage loans. CARES Act, section 4024 (page 574 of the PDF). The 120-day period started running on March 27 so expires on July 25. Democrats in Congress want to not only extend the duration of the moratorium but also expand it to cover all rental properties.

Legislative largesse

The bill that passed the House (where the Democrats have a majority) and is currently before the Senate (where the Republicans have a majority) is titled the HEROES Act.

The name is apt. Just reading the bill requires a degree of fortitude bordering on heroism. It consists of 1,815 pages that explain how the federal government should go about spending $3 trillion (trillion with a T), a sum that even nowadays seems quite a large amount of money. According to the Endowment for Human Development, a stack of one trillion dollar bills would reach almost 68,000 miles. So a stack of three trillion dollar bills would reach 204,000 miles. Driving that distance at 60 mph would take 3,400 hours, i.e. 142 days, and that’s with no rest stops (bad idea). No wonder it took Congress 1,815 pages.

Where would the proposed $3 trillion go? The potential recipients are legion, so I will name but a few that may prove of particular interest to Bay Staters.

For example, $50 million would go to the Legal Services Corporation (LSC) which every year helps fund entities in Massachusetts such as Community Legal Aid (CLA) and Northeast Legal Aid (NLA) to the tune of about $1.5 million and $1 million respectively. If you are a housing provider who has ever had to take tenants to Housing Court for, say, nonpayment of rent (back when housing providers were allowed to do that sort of thing), you may be familiar with CLA and NLA. They are the attorneys who represent the tenants. Similarly, the Volunteer Lawyers Project of the Boston Bar Association also receives LSC funding of approximately $2 million per year, which is exactly the kind of voluntarism I could volunteer for.

Under the HEROES Act another $4 million would go to the Fair Housing Organization Initiative. Earlier this year, HUD (which administers the program) awarded $300,000 to Community Legal Aid (yes, the same Community Legal Aid that got $1.5 million from the federal Legal Services Corporation). HUD also doled out $300,000 to Massachusetts Fair Housing Center, Inc. That’s the corporation that is suing Massachusetts in federal court over the Lead Paint Law, which it alleges discriminates against families with children. For a list of reasons why that lawsuit represents a less-than-judicious use of taxpayers’ money and everyone’s time, click here.

In addition to spreading the wealth around, the HEROES Act would prohibit evictions.

A year-long, nationwide eviction moratorium

In the PDF version of the HEROES Act, the provisions about the eviction moratorium start at page 961 in section 110203 of Division K, Title II (titled “Protecting Renters and Homeowners from Evictions and Foreclosures).

What would this part of the bill do if the Senate approves? For a period of 12 months after enactment, it would prohibit “legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges.”  The term “covered dwelling” means dwellings covered by section 802 of the federal Fair Housing Act, i.e. all rental units.  Yes, all rental units in the country, even in those States that have addressed the issue — and continue to do so — in their own way.

Federalism 101

Whether judicially, legislatively, or by executive order, many of the States have enacted eviction moratoria of some kind and duration. In a country of approximately 330-million people across 50 States, there has been some variety.  Utah imposed a ban whereas Oklahoma did not. New York extended its ban whereas Colorado did not. California? We’ll see. May Congress supplant these various State-level approaches, replacing them with a one-size-fits-all rule?

Congress does not have the authority to make laws governing absolutely each and every form of human activity that may occur in the United States. Its powers are limited, believe it or not (and for many in Congress it seems to be “not”).

As James Madison explained: “[T]he proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residual and inviolable sovereignty over all other objects.” Federalist No. 39. Sovereignty is shared, the Constitution circumscribes the powers of Congress, and the Constitution does not give a articular power to Congress it remains with the States. The lines of demarcation may be blurry but they are not invisible.

Among the enumerated powers of Congress is the power to regulate interstate commerce. This is what allows Congress to legislate in the area of housing so as to reduce invidious discrimination. Activities within a singe State that may have a a substantial and harmful effect on interstate commerce can come within the clause’s scope, e.g. racial discrimination in housing.

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James Madison

Flexible it may be, but the Commerce Clause has its bounds. For example, it does not extend beyond economic activity to economic inactivity, as the Supreme Court held in NFIB v. Sebelius. In an area where the States are already acting separately, and where there is no invidious racial discrimination or other activity that has a substantial and harmful effect on interstate commerce, the answer should be no.

That seems to be the opinion of Senate Republicans at this point, who consider the bill a liberal wish list. When the GOP-majority Senate takes up the HEROES Act in July (or perhaps August according to this article) it seems unlikely to vote to extend and expand the eviction moratorium. But, as we have all learned in the past few months if we didn’t know it already, sometimes changes come thick and fast.

Conclusion

The CARES Act’s eviction moratorium applies to housing with some kind of federal connection, albeit tenuous in some cases. Each State has supplemented that federal law with a response of its own, tailored to local needs. Those State-level laws may be unpalatable and arguably unconstitutional, e.g. Chapter 65 in Massachusetts. But they are examples of federalism in action, and typify the way our system is supposed to work. Expanding the federal moratorium is both unnecessary and unconstitutional.

If you believe that the Senate should reject the effort to impose a nationwide, year-long moratorium on evictions, please call your U.S. Senators and let them know.

 

Eviction Moratorium FAQs

Q. Is the eviction moratorium a federal law or a state law?

There are two moratoria. One is contained in the federal CARES Act. The other is a Massachusetts law, Chapter 65.

Q. Is the Massachusetts eviction moratorium a statute or an executive order?

The eviction moratorium is a statute, not an executive order. The Massachusetts Legislature passed it (and Governor Charlie Baker signed it) as an emergency law, Chapter 65 of the Acts of 2020, on April 20.

How long will the eviction moratorium last?

At present, Chapter 65 says that the eviction moratorium will last as long as the state of emergency plus 45 days. Governor Baker proclaimed the state of emergency on March 10, 2020, and his proclamation does not have an end date.

Even when Governor Baker does announce an end to the state of emergency, the Legislature could still amend the statute to extend the length of the moratorium.

Does the moratorium ban all evictions?

No, it allows housing providers to file summary process complaints where a tenant’s criminal activity or lease violation “may impact the health or safety” of another person. It prohibits no-cause evictions and evictions for nonpayment of rent.

In order for the court to accept a summary process summons and complaint, Standing Order 5-20 requires that the housing provider or attorney also file an affidavit swearing that the case qualifies as an “essential eviction” under Chapter 65, i.e. that it is based on a tenant’s criminal activity or lease violation “may impact the health or safety” of another person.

Q. Does the moratorium allow landlords to send notices to quit?

Yes, so long as the notice is for a tenant’s criminal activity or lease violation that “may impact the health or safety” of another person. Chapter 65 prohibits all other notices to quit, e.g. for nonpayment of rent. It also bans any notices that demand or request that a tenant vacate the premises. Landlords should take care not to write anything that could be construed as a request to vacate. For what to write in missed-rent notices, read on.

Q. Does the moratorium allow landlords to charge a late fee?

No, not if within 30 days after the missed rent payment the tenant gives the landlord a notice stating that the non-payment of rent was due to a financial impact from COVID-19. State government has published a notice for tenants to use.

 

Q. Does the moratorium allow a landlord to send notices of missed payments?

Yes, and landlords should do so, but the executive office of housing and economic development has issued regulations that specify what the notice must say including the following statement, which must appear on the first page.

“THIS IS NOT A NOTICE TO QUIT.  YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME.  An emergency law temporarily protects tenants from eviction during the COVID-19 emergency.  The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord. For information about resources that may help you pay your rent, you can contact your regional Housing Consumer Education Center.

For a list of agencies, see https://www.masshousinginfo.org/regional-agencies.

Additional information about resources for tenants is available at https://www.mhp.net/news/2020/resources-for-tenants-during-covid-19-pandemic.

You will not be subject to late fees or a negative report to a credit bureau if you certify to your landlord in writing within 30 days from the missed payment that your non-payment of rent is due to a financial impact from COVID-19.  If possible, you should use the approved form at: https://www.mass.gov/lists/moratorium-on-evictions-and-foreclosures-forms-and-other-resources.  If you cannot access the form on this website, you can ask your landlord to provide the form to you.  You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.”

Landlords should also include the following, “This is important notice. Please have it translated.” The State government notice for tenants (see above) contains translations of that statement in 10 languages:

THIS IS AN IMPORTANT NOTICE. PLEASE HAVE IT TRANSLATED.

Questa é una notizia molto importante. Per piacere falla tradurre.

Este es un aviso importante. Sírvase mandarlo traducir.

C’est important. Veuillez faire traduire.

ĐÂY LÀ MỘT BẢN THÔNG CÁO QUAN TRỌNG.

XIN VUI LÒNG CHO DỊCH LẠI THÔNG CÁO NÀY.

Este é um aviso importante. Por favor mande traduzi-lo.

Es ê un avizu importanti. Di favor, manda traduzil.

Se yon anons ki enpòtan anpil. Sou Ple, fè tradwi li pou w.

Σπουδαιε Πληροφορεια − Παρακαλω να το µεταφρασετε.

MassLandlords has a sample notice available for members. Landlords should not send missed-payment notices that fail to comply with the regulations.

Q. Is Chapter 65 constitutional?

Some people believe that by prohibiting owners from going to court to try to regain possession of their property Chapter 65 violates the constitutional guarantee of access to justice, and that by requiring owners to provide housing with no guarantee of payment it may operate as a taking without compensation. Neither the Legislature nor the Governor asked the Supreme Judicial Court for an advisory opinion prior to enactment, and so far there are no judicial decisions one way or the other.

Q.  If landlords wish to seek compensation for the alleged taking, what law could they rely on?

For owners whose real estate the Commonwealth has taken for public use during a state of emergency, the Civil Defense Act of 1950 sets forth the steps to follow. In a nutshell, the Act allows aggrieved property owners to file claims in Superior Court. Potential claimants should note the one-year statute of limitations.

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Peter Vickery, Esq.

“Essential” evictions: Housing Court issues new order

May 1, 2020:-  Today the Housing Court issued Standing Order 5-20, which sets out the steps for property-owners and attorneys to take in summary process cases that the Legislature deems “essential.”

Along with the summary process summons and complaint, the owner/attorney must file an Affidavit of Cause affirming under oath that the eviction is “for cause,” as defined in the moratorium law, Chapter 65, i.e. that the tenant’s criminal activity/lease violation “may impact the health or safety” of another person.

This new standing order provides some much-needed clarity for court staff, litigants, and practitioners. It also serves as a reminder that the moratorium does not prohibit all evictions, only some.

Of course, how prohibiting evictions for non-payment of rent but not evictions for health/safety reasons could in any way help “flatten the curve” or otherwise reduce the spread of COVID19 is not at all clear.

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Peter Vickery, Esq.

Dear Governor: One housing provider’s message to Charlie Baker

April 29, 2020:- Massachusetts law now bans property owners from seeking summary process except where a tenant’s criminal activity/lease violations “may impact the health or safety” of others.  It forces some landlords to extend credit that they cannot afford to give. This near-barring of the courthouse doors to one particular class of people (plus its forced-loan feature) prompted Frederik Winsser to write a letter to Massachusetts Governor Charlie Baker, which Mr. Winsser kindly gave me permission to publish here.

______

Dear Governor Baker:

I am writing about the effect that the COVID-19 epidemic is having on housing in the Commonwealth of Massachusetts.

I am Housing Provider – a ‘Mom and Pop’ small property owner/landlord in Massachusetts. I am a retired senior and receive a small pension, a limited social security benefit, and a small VA service connected disability payment. I depend upon my rental income to pay for my medical expenses, my mortgages, property taxes, insurance, and other bills.

Thirty years ago, I purchased my first house, a two family in Waltham. Over the years, I was working as an Electrical Engineer and invested work income as well as a tremendous amount of sweat equity into the house. My hard work allowed me to purchase additional rental properties, the most recent being a four family house fifteen years ago needing a lot of work.

Over the years I have invested a significant amount of time and money to improve the apartments with new kitchens, bathrooms, refinished interiors, high efficiency heating systems, and much more. For my four family house, after fifteen years of sweat equity and money invested, I still have a net $94,223.00 negative cash flow balance on my original investment. Only in 2019 did I finally have a small positive cash flow of $10,800.00.

I very well understand that there currently is a housing crisis in the country. A large number of people have lost their jobs and are unsure of their future financial security. I do understand that their ability to pay for the necessities of shelter, food, and health care are being seriously impacted.

There are programs such as Section 8, SNAP, etc., but placing the burden on the housing providers is unfair. Speaking for myself and other housing providers, we still have to pay mortgages, taxes, insurance, utilities, and expenses. If we don’t pay the property taxes, the city will place a lien on the property. With the current eviction moratorium, there is no practical remedy for us if the renters cannot or will not pay their rent. Yes, we can take them to court in three to six months for the back rent and hope to be able to collect the rent. By way of an example, last year I went to court to evict a tenant for repeated non payment of rent. In July she moved out with no forwarding address, still owing me over $3,500.00 in rent and legal expenses. Neither the police nor I can locate her.

In closing, would someone go to the supermarket, fill up a shopping cart full of groceries, and at the checkout counter say ‘I’ll pay for the groceries after the COVID crisis is over’. I don’t think so. Please do consider the plight of the housing providers as well.

Sincerely,

Frederik C. Winsser

What should you tell tenants who do not pay rent?

April 27, 2020:- Since March 23, 2020, when Governor Baker issued COVID 19 Order No. 13, closing businesses across Massachusetts, about half-a-million Bay Staters have been thrown out of work. Some are renters who will find it difficult–or impossible–to pay rent. In ordinary times, landlords would have had the option of sending them a notice to quit and then going to court for summary process.

On April 20 the Governor signed the eviction moratorium that the Legislature had passed, which will last as long as the state of emergency plus 45 days, namely Acts of 2020 Chapter 65. The new law prohibits property-owners from going to court for summary process (except where a tenant’s criminal activity/lease violations  “may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public”). So landlords with tenants who can’t or won’t pay rent have no legal recourse. They are, however, allowed to remind tenants of the duty to pay rent.

Question

If you are a property owner, what should you tell the tenant who misses rent?

Answer

Do not worry: the Executive Office of Housing and Economic Development of  has decided for you. It has issued regulations that state not only what you may write but what you must write. These are emergency regulations, so did not have to go through the process of notice and comment that allows the public to have a say. Here are the precise words that your State government requires you to utter:

THIS IS NOT A NOTICE TO QUIT.  YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME.  An emergency law temporarily protects tenants from eviction during the COVID-19 emergency.  The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord.
For information about resources that may help you pay your rent, you can contact your regional Housing Consumer Education Center.  For a list of agencies, see https://www.masshousinginfo.org/regional-agencies.
Additional information about resources for tenants is available at https://www.mhp.net/news/2020/resources-for-tenants-during-covid-19-pandemic. You will not be subject to late fees or a negative report to a credit bureau if you certify to your landlord in writing within 30 days from the missed payment that your non-payment of rent is due to a financial impact from COVID-19.  If possible, you should use the approved form at: https://www.mass.gov/lists/moratorium-on-evictions-and-foreclosures-forms-and-other-resources.
If you cannot access the form on this website, you can ask your landlord to provide the form to you.  You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.
The regulation adds:
The notice may also include other information that will promote the prompt and non-judicial resolution of such matters, such as the total balance due, the months remaining and the total of lease payments expected to be made on a lease for a term of years, information on how to contact the landlord to work out a revised payment arrangement, and a reminder that after the state of emergency ends the tenant may face eviction if rent remains unpaid.
The term “non-judicial resolution” is a bit pointless in the absence of any possibility of judicial resolution (Chapter 65 effectively barred the courthouse doors). But anyway,  at least they are letting you say how much the tenants owe you and what may happen after the emergency.
The regulation goes on to add something that you should do, and also mentions something it “encourages” you to do.
If a landlord knows that the tenant is not proficient in English, the landlord should use reasonable efforts to deliver the notice in a language that the tenant understands.
Not a mandate, of course, just a suggestion. Then some more hortatory language.
Landlords are encouraged to include with the notice a statement that the notice is important and should be translated, a form of which is available on the EOHED website.
“Should” is not “shall” and “encouraged” is not exactly the same as “directly ordered to,” but you do not need a particularly vivid imagination to foresee what will happen to the landlord who chooses not to translate the notice and not to include the translated statement about the notice’s importance.

Conclusion

State government now permits you to inform non-paying tenants how much they owe and that after the state of emergency they may face eviction for non-payment. If you do choose to communicate with tenants on this subject, State government requires you to write the words set forth in the regulation. For some additional legal text that I consider relevant, click here.

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Editorial advice from State Government

Not a rent moratorium

April 23, 2020:- The new law is a moratorium on some (not all) evictions, not on rent. The law expressly states:

Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.

Are landlords allowed to remind tenants of this fact? Yes.

Certainly, landlords who choose to provide a written reminder need to take care not to say anything that could construed as a request to vacate or as a threat to initiate a debt-collection lawsuit, nor should they visit the tenant. Sending the reminder to some tenants but not to others would invite a charge of discrimination, so an all-or-none approach would be wiser.

Statute

The eviction moratorium statute prohibits landlords from sending, for the purposes of a “non-essential eviction,” any notice, including a notice to quit, requesting or demanding that a tenant of a residential dwelling unit vacate the premises.”

Regulations

The Attorney General’s emergency debt-collection regulations prohibit “creditors” from threatening to initiate a collection lawsuit. Is a landlord who is trying to collect rent owed (overdue by 30+ days) under a lease a “creditor” within the meaning of the debt-collection regulations?

The emergency regulation states, at s. 35.03(2), that the prohibitions do not apply to “an attempt to collect a debt owed by a tenant to an owner.” The applicable regulation defines “tenant” as a person who occupies a dwelling unit “under a rental agreement,” which term the regulation defines as “an express or implied agreement for use and occupancy of a dwelling unit.” Is a tenant-at-sufferance someone who is occupying a dwelling unit “under an express or implied agreement”?  No; on the contrary, the tenant-at-sufferance is occupying the unit without the owner’s agreement, after any express or implied agreement has expired or been terminated.

This is somewhat convoluted, but bear with me: It is all too easy to imagine someone whose lease/rental agreement has expired or been terminated claiming to be a tenant-at-sufferance and, therefore, not a “tenant” within the meaning of the regulation and, therefore, outside the scope of the landlord-tenant exception to the ban on creditor-debtor communication. So tread carefully.

Takeaway

Sending a simple reminder to all tenants that the new law states that “nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent” would not, in my opinion, violate the statute or the regulations.

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Peter Vickery, Esq.

Some evictions are still legal

April 23, 2020:-  Landlords and lawyers should bear in mind that the new eviction-moratorium law does not prohibit all evictions. The definition of “non-essential evictions” excludes:

(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or

(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.

Such evictions are not non-essential. Put another way so as to avoid a surfeit of negatives, such evictions are essential.

Note in particular the words “may,” “impact,” and “or.” The law does not say that the tenant’s criminal activity/lease violations must have a significant impact on the health and safety of another person, only that it “impact” the health or safety. Plus, it uses the disjunctive “or” as opposed to “and.”

What kind of activity can be said to “impact” someone’s health, including mental health? That is food for thought.

Takeaway: If a tenant’s activity may impact the health or safety of another person, the new law allows the landlord to file–and does not authorize the court to reject–a summary process case.

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Peter Vickery, Esq.

 

 

 

Eviction moratorium: how long?

April 20, 2020:- Today Governor Charlie Baker signed the eviction-moratorium bill that will last as long as the state of emergency that he proclaimed on March 10, plus 45 days. What is the duration of the state of emergency? How long is a piece of string?

Unlike Order No. 13 (the business-closure order that expires on May 4, 2020) the state of emergency has no end date. By its terms the proclamation “shall remain in effect until notice is given, pursuant to my judgment, that the STATE OF EMERGENCY no longer exists” (all caps in original).

The new law says that the Governor may extend the moratorium in 90-day increments, so long as he does not extend it to a date more than 45 days after the end of the emergency. If, for the sake of argument, the Governor terminates the emergency on June 30, the earliest date on which a landlord could issue a notice to quit for non-payment of rent would be August 14 and the Housing Court would not have a hearing on the summary process summons and complaint until September at the earliest. Given the backlog of cases, further delays are inevitable.

The conclusion of the moratorium depends on when the emergency expires, and right now that day looks distant. There is no reason to assume that it will be in June. Because although the pandemic may be on the wane, economically we are in tatters.

According to the International Monetary Fund (IMF), by the end of 2020 the global economy will have contracted by 3%, compared with 0.1% in the recession of 2009. Unemployment in the United States is already at 22 million (at least) and likely to go up. Hospitals are laying off workers. The price of oil has fallen below zero. If there wasn’t an emergency on March 10, there certainly is now.

But even if the Governor does lift the state of emergency and lets the moratorium expire 45 days thereafter, that might not mean much. The Legislature could choose to extend the moratorium by amending the statute. That seems more likely than not.

In view of its popularity among the majority and the likely demands by tenants’ advocates for an extension, it would take real political courage to leave the statue in its present form and let the moratorium expire on time. In the language of politics, the definition of “temporary” is almost infinitely elastic.

A simple question for the Governor

April 13, 2020:-  On March 23 Governor Baker issued an order titled COVID 19 Order No. 13 instructing businesses (other than those providing “COVID 19 Essential Services”) to “close their physical workplaces and facilities… to workers, customers, and the public.” This was an extraordinary order. As a direct result, unemployment in Massachusetts rocketed upward as it did in other States whose governors issued similar orders.

In my previous post I mentioned that in the two-year period 2016-18, the approximate number of hospitalizations in the United States for influenza was 1.3 million and the approximate number of deaths was 99,000, and we did not close down the economy and throw millions of people out of work. Putting that to one side, whatever the past efficacy if any of Order No. 13, it is now time to rescind it. If the number of hospitalizations increases over the next week or so, there is no reason to believe that this will strain the system to capacity.

Accordingly I have asked Governor Baker the following simple question:

With the cumulative number of hospitalizations in Massachusetts at fewer than 2,500 and with the number of deaths per day attributable to the virus at about 80-90, it is now reasonably clear that COVID 19 is not going to overwhelm our healthcare system. Given that the purpose underlying your order dated March 23 (COVID 19 Order No. 13) was to flatten the curve, could you please announce when you are going to rescind the order?

The designer of the University of Washington model says that “the worst is behind us.” That may be accurate as to the pandemic, but it is not true about the effects of our State government’s response. The close-business orders have led to the immiseration of countless families, and more livelihoods and lives are now at risk than there were before March 23.

If your business closed because of Governor Baker’s order, please let me know.

STABILIZE HOUSING: GUARANTEE RENT NOW

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Sign the petition

March 31, 2020:- For many people in Massachusetts, tomorrow rent is due. Some will face a very tough choice. Why?

Because today is the seventh day since Governor Baker’s business-closure order took effect.  At the stroke of a pen, approximately 150,000 people had their jobs and livelihoods taken away (albeit with the best of intentions on the part of the Governor).

People are hurting. For a lot of us, renters and home-owners alike, it feels like we are about to fall off a cliff.

What happens when people cannot afford to pay rent?

In this emergency, no landlord would want to ask the Housing Court to evict a tenant for nonpayment of rent. And now many do not have that option anyway, even for tenants who are still in work and can afford to pay rent. Why?

Because today is also the fifth day since Congress passed the CARES Act, which (among other things) imposes a 4-month moratorium on evictions from residential properties with federally-backed mortgages. For the applicable language, scroll down to page 574 and read Section 4024(a)(4) and (5).

In the coming months, more and more people are going to face hardship and the appalling choice between food and rent. I know which one I would choose.

There will be a handful–there always is–of those who can pay but won’t; those who will take advantage, safe in the knowledge that if they live in a property with a federally backed mortgage the landlord must not send them a notice to quite, let alone ask a judge to evict them.

So who is going to pay for the cost of housing people who can’t (or won’t) pay rent?

Who is going to pay the landlord’s employees and contractors, the people who keep rental homes fit to live in?

Sign the petition

Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition.

The Commonwealth should immediately stand as surety for renters who cannot afford to pay rent. A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out.

In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.

If you think that the Commonwealth as a whole should stabilize housing by guaranteeing rents via surety bonds, sign the petition today.

Tell the Legislature to keep us from falling off that cliff.