Hot news: lawsuit over eviction moratorium in NY

May 28, 2020:- Alleging that the eviction moratorium operates as a taking of their property without just compensation, a group of housing providers in New York have filed suit in federal court, according to the New York Law Journal.

Stay tuned.

man reading burning newspaper
Photo by Danya Gutan on Pexels.com

NY lawmakers extend eviction moratorium

May 28, 2020:- According to this report in News Brig, the New York legislature voted to extend the moratorium on residential evictions to last as long as the state of emergency. Originally, the moratorium was scheduled to expire in August.

Unlike Massachusetts (whose eviction moratorium will end on August 18 unless the Governor extends it)* New York’s moratorium is confined to cases where the reason for non-payment is related to COVID 19.  In contrast, the Massachusetts law, Chapter 65, prohibits housing providers starting evictions for any and all reasons, except where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person on the premises or the general public.

*Under Chapter 65, if Governor Baker so chooses, he could extend the moratorium for the length of the state of emergency plus 45 days. How long will state of emergency last? How long is a piece of string?

gray yarn ball
Photo by Steve Johnson on Pexels.com

 

Eviction moratorium still in effect

May 26, 2020:- The eviction moratorium (Chapter 65) is still in effect. The earliest date on which is will expire is August 18 (120 days after Chapter 65 became law). However, the Governor could extend it by 90 days, and keep doing so until 45 after the end of the state of emergency.

End?

When will the state of emergency end? The Governor has not said. There has to be a state of emergency in effect for the Governor to issue emergency orders, so the chronology of his four-phase re-opening plan gives some clues.

No NTQs

Until the moratorium expires (August 18 at the earliest, and possibly later), housing providers must not send notices to quit, except for “essential evictions,” i.e. where the tenant’s criminal activity/lease violations “may impact the health or safety” of another person lawfully on the premises or the general public.

P.S.

May 28, 2020:- In addition to the State-level eviction moratorium established by Chapter 65, there is also a federal moratorium that Congress imposed on some properties by way of the CARES Act. As this reminder from HUD points out, housing providers are not allowed to charge late fees that accrue for unpaid rent during the 120-day federal moratorium (which ends July 25). To determine whether your property is subject to the federal moratorium, you may want to ask your lawyer.

pexels-photo-1186851.jpeg
Photo by Brett Sayles on Pexels.com

 

Rent guarantee insurance

May 22, 2020:- Missed rental payments are on the rise in Massachusetts, but a market solution may be available.

Even though the eviction moratorium law (Chapter 65) says that tenants are required to pay rent, the lack of an enforcement mechanism is leading some to skip paying the rent with a sense of impunity. Housing providers still have to pay to maintain the property and keep it up to code even when they are not receiving rent. One way for providers to stay afloat might be rent-guarantee insurance, also known as rent default insurance, which promises coverage in the event that a tenant stops paying rent.

Unless and until the Massachusetts Legislature takes up the Fair and Equal Housing Guarantee surety-bond policy that MassLandlords is promoting, some housing providers may find this kind of product helpful. And I see that one company, Avail, has a short video on the subject.

If affordable, insurance might be a viable market solution to government failure. By “government failure” I mean the Commonwealth requiring one party to provide housing without being able to go to court to make the other party pay for said housing. This forces rental-property owners to either (a) provide free housing (not a great business model) or (b) exit the market, thereby reducing the amount of rental housing available.

Ideally, Governor Charlie Baker would let Chapter 65 expire on August 18 rather than exercising his option to extend it. But if he chooses to prolong the moratorium, insurance might do the trick.

Please note that I have no contractual, fiduciary, relationship with Avail or Steady Marketplace, either oral or written, and receive no remuneration of any kind from the companies, make no representations regarding them, and suspect that there are other entities out there that offer similar insurance products. In the vernacular, I am not shilling for Avail or Steady Marketplace, or any other insurance company for that matter.  I just think that for some housing providers, rent-guarantee insurance might be worth exploring.

bitcoins and u s dollar bills
Photo by David McBee on Pexels.com

The Big Shut Up: the eviction moratorium and speech

May 19, 2020:-  The Massachusetts eviction moratorium (Chapter 65) has several execrable features, and one of the worst is the abridgment of free speech. The speech in question is in the category that courts refer to as “commercial speech.” Should you care about State government violating people’s right to utter commercial speech? If you care about the non-commercial variety, yes.

Some, but not all, notices to quit

The statute — §3(a)(ii) to be precise — prohibits housing providers from sending “any notice, including a notice to quit, requesting, or demanding that a tenant of a residential dwelling unit vacate the premises” for non-payment of rent, for cause, or for no cause. However, the statute does permit notices to quit where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person, including the general public.

So if a tenant is violating the lease in a way that “may impact the health or safety” of another, the housing provider is allowed to terminate the tenancy and issue a notice to quit (a prerequisite for most eviction proceedings, called “summary process” in Massachusetts).  But if a tenant is simply not paying rent, the housing provider is not allowed to do so.

Before going any further, it is important to remember this key point: The law prohibits some, but not all, notices to quit.

Notices to quit are speech

A notice to quit is, literally, correspondence; a letter from one person to another. Both sender and recipient are parties to a contract, and the notice to quit is how the sender tells the recipient that the contract is at an end. It is a form of “expression related solely to the economic interests of the speaker and its audience” so constitutes commercial speech.  Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980). The housing provider who sends the notice to quit is not evicting the tenant. Only a judge can do that by way of legal proceedings called summary process (see below).

Even though the notice to quit is commercial speech, which means that it gets less protection from the courts than non-commercial varieties, the government does not have free rein. If it wants to restrict someone’s commercial speech, the government still has to follow some rules.

To be constitutional, commercial-speech restrictions must be effective

The Supreme Judicial Court has held that “a restriction on commercial speech will not be upheld if it provides only ineffective or remote support for the government’s purpose.”  Bulldog Inv’rs Gen. P’ship v. Sec’y of Com., 460 Mass. 647, 669–70 (2011) quoting Central Hudson, 447 U.S. at 564. If the restriction does not effectively support the government’s purpose, it is unconstitutional.

Does the ban on some notices to quit (but not others) effectively support the government’s purpose? And what is the government’s purpose, anyway?

The selective ban on notices to quit is ineffective

The express purpose of the Commonwealth, stated in the statute’s emergency preamble, is to establish “a moratorium on evictions and foreclosures during the Governor’s COVID 19 emergency declaration.” So for the duration of the emergency the government wants to temporarily stop evictions. Fair enough, some might say.

But evictions are not something housing providers can perform. Housing providers cannot evict anyone; only judges can do that. There are statutes that make this clear.  G.L. c. 239 and c. 186.

If landlords try to evict, that is called self help, and it is illegal in Massachusetts. In fact, tenants’ advocates recommend that if a landlord resorts to self help the tenants should call the police and file a criminal complaint. Don’t believe me? Follow this link to the Massachusetts Legal Aid site and scroll down to the words in bold: Call the police and file a criminal complaint.

In order to impose a moratorium on evictions, the Commonwealth need only prohibit the courts from issuing judgments and executions for possession, which it has done by way of §3(b)(ii) which states that the courts must not “enter a judgment or default judgment for a plaintiff for possession of a residential dwelling unit… (iii) issue an execution for possession of a residential dwelling unit… ; (iv) deny, upon the request of a defendant, a stay of execution, or upon the request by a party, a continuance of a summary process case; or (v) schedule a court event, including a summary process trial.”

Courts are not allowed to hold summary process trials, enter judgment, award possession to housing providers, or deny tenants a stay of execution (execution means the eviction itself, where the sheriff forcibly removes the people and their belongings). That part of the statute, §3(b)(ii), is the one part that actually does establish a moratorium on evictions.

But only some evictions. Remember, Chapter 65 prohibits evictions for non-payment of rent and evictions where the housing provider does not specify a particular reason, so-called “no cause” evictions. It does not prohibit evictions where the tenant’s criminal activity or lease violations” may impact the health or safety” of another person or the general public.

How does evicting someone for criminal activity that may impact the safety of the general public (thereby rendering that dangerous person homeless) help keep the general public safe, whereas evicting someone for nonpayment of rent makes the general public less safe?  That is a genuine question. I would like to know the Commonwealth’s answer.

Conclusion

The supposed goal of Chapter 65 is to establish a moratorium on evictions during the COVID 19 emergency. One part of the statute does exactly that (almost), by barring the courts from evicting people, except people who are potentially a danger to the public (putting them out on the street is OK, apparently). What does restricting the commercial speech rights of housing providers do to make the moratorium more effective? Nothing.

Chapter 65 is set to expire on August 18 unless the Governor exercises his option to extend it. Should he let it expire, or grant it an extension?

Exercise your speech rights while you can and let me know what you think.

man in blue crew neck shirt
Photo by Andrea Piacquadio on Pexels.com

Maura Healey edits statute

May 12, 2020:-  On May 8, 2020, Attorney General Maura Healey issued an “advisory” on residential evictions. An advisory is not a law or regulation, but it indicates how the Attorney General will interpret the law and try to persuade the courts to apply it. This particular advisory includes a novel interpretation of Chapter 65, the statute that limits the right of access to the courts for one class of people, namely housing providers (landlords).

The statute also abridges freedom of speech by banning landlords from sending notices to quit. In addition, by preventing property owners from obtaining possession even when tenants stop paying rent (whether for reasons related to COVID 19 or not) it operates as a taking. I have addressed those violations before and will do so again in future posts. This post is about access to justice, and how Attorney General Healey’s advisory (mis)interprets what the statute has to say about it.

Chapter 65

Chapter 65 allows housing providers to file for summary process only where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person lawfully on the property or of the general public. But it bars housing providers from taking tenants to court for non-payment of rent. Under Chapter 65 (as opposed to the Declaration of Rights) no access to the courts is the rule, and the health/safety provision is the exception.

Statute in Derogation of Liberty

Chapter 65 takes away a fundamental liberty, namely access to the courts, which (as I have mentioned elsewhere) is one of the liberties guaranteed by the Massachusetts Declaration of Rights. Here in Massachusetts it is well established that statutes in derogation of liberty should be strictly construed and interpreted narrowly. They should be narrowly tailored to serve a compelling and legitimate government interest and strictly construed to comply with requirements of substantive due process, as the Supreme Judicial Court held in the Mattter of E.C., 479 Mass. 113 (2018).

In other words, if a statute takes away a basic right, the courts should interpret it narrowly so as to confine the damage to the individual’s liberty interest.

But Attorney General Healey says the opposite, that it is the fundamental right that should be narrowly construed, not the exception to it.

Editing out, and editing in

“Evictions can be brought only where a tenant (1) violates lease terms or engages in criminal activity, and (2) the violation may impact the health or safety of others who are lawfully on the premises. This exception is narrow and should only be used where there is a serious health or safety concern that can’t otherwise be addressed.”

That is what the advisory says about the statute. But that is not what the statute itself says. Not at all. First, the statutory language about impacts on health/safety applies not only to people lawfully on the premises but also to the general public. It says so right there in Section 1 of the statute:

“… 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 in advising the general public, the Attorney General Healey left out that bit about the general public.

Second, if the Legislature had intended to say that housing providers may ask the courts to evict tenants only where the criminal activity or lease violations “are likely to seriously affect the health or safety of another person and cannot be addressed short of eviction” it would have said so. But it did not. Chapter 65 does not say “serious health or safety concerns” nor does it state that eviction must be the very last resort.

In addition to leaving out some words and adding others, the Attorney General’s interpretation is the opposite of the way to interpret a statute that derogates from liberty. The advisory says that the right of access to the courts that is the “narrow exception,”  which is not what the appellate decisions say about statutes in derogation of liberty. On the contrary, according to precedent it is the liberty that should be construed broadly, and the exception to that liberty (in this case the barring of the courtroom doors for all but health/safety cases) that should be construed narrowly.

Conclusion

As if it were not bad enough that we have a statute that abridges freedom speech, bars access to the courts for one class of people, operates as an unconstitutional taking without reasonable compensation, and grants the Governor the option of extending its duration, now the Commonwealth’s chief law-enforcement official says that she will read into that statute words that are not there and apply it n a way that flies in the face of precedent.

So now you know the opinion of Attorney General Healey about your right of access to the courts. Should you wish to share your opinion with Attorney General Maura Healey, here is a link to the Contact page.

Chamber legislative breakfast_with Lindsey and Silvia (3)
Peter Vickery, Esq.

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.

cropped-cropped-petervickery_6-standing
Peter Vickery, Esq.