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.
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.
July 30, 2020:- Perhaps I am a slow learner. But I think I just realized something important about the eviction moratorium.
Those following the Matorin v. EOHED case challenging Chapter 65 (the eviction moratorium) will know that earlier today the Superior Court held a hearing on the plaintiffs’ motion for a preliminary injunction.
What struck me while I was watching the oral argument was the size of the gap between the law’s supposed purpose and its actual effect. Then I realized that there is a gap between the two sides over the nature of the very thing they are arguing about, i.e. evictions. I will explain what I mean in a moment, but first a very brief explanation of a key term, namely “execution.”
Execution
In Massachusetts, only a judge can evict a tenant and award the housing provider possession of the rented premises. If, after trial, the judge decides to award the housing provider possession, the housing provider has to wait 10 days and then ask for a document called the writ of execution. This is the document that authorizes the sheriff or constable to physically remove the renters and their belongings. When the sheriff does so, it is called levying.
When non-lawyers think about evictions, what they have in mind is the event called levying the execution. It is quite rare, fortunately.
Before the constables or sheriffs can even get their hands on an execution to levy, the renters can ask the judge for a stay, i.e. a pause or delay. The law allows judges to stay execution for up to six months (12 months, if the renters have disabilities or are age 60+).
Rule 13 of the Uniform Rules of Summary Process lays out the steps.
Now back to the argument over Chapter 65.
How to stop executions
The proponents of Chapter 65 argue that the Legislature enacted the eviction moratorium in order to stop people being made homeless during the COVID 19 pandemic. If that had indeed been the real purpose, the Legislature could have achieved it by banning the courts from issuing executions and prohibiting the sheriffs from levying on any executions already issued. Here is the bill the Legislature could have enacted:
In any summary process case, the court shall not issue execution, and no person shall levy execution, until 45 days after the end of the state of emergency.
But the Legislature chose not to do that. Instead of banning the thing that non-lawyers think of as evictions (levied executions), it banned housing providers from even getting into court. And that, in turn, bars access to the trained Housing Court mediators who resolve disputes and help the parties work out payment plans.
If the Legislature and Governor had defined the problem they were trying to solve, they would not have created the unholy mess that will confront so many housing providers and renters when the moratorium finally ends. Defining problems before attempting to solve them is a big part of the job. And, unlike some of the housing providers I represent, the legislators are actually getting paid. Legislative salary moratorium, anyone?
Decision?
As for the hearing in the Matorin case, the judge took the matter under advisement, which means that he will issue his decision at a later date. To stay up to date, and to read more about the case from Attorney Richard Vetstein, who is one of the two lawyers representing the Matorin plaintiffs, click here.
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.
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.
July 21, 2020:- Today Massachusetts Governor Charlie Baker informed the Legislature of his decision to extend the eviction moratorium to October 17, 2020. His letter includes the folowing:
I am aware that the extension I am declaring today will impact many small landlords who rely on rental income to pay their own expenses. I strongly encourage tenants to continue to pay rent, and homeowners to make their mortgage payments, to the extent they are able while the moratoria remain in place. The Baker-Polito Administration already has made available $20 million in emergency rental and mortgage assistance to help lower-income tenants and homeowners make their housing payments. Between now and October 17, my administration will assess whether additional federal and state resources should be made available for this purpose. We also will be working closely with our colleagues in the judicial branch to ensure that when evictions proceedings resume there are programs in place to help tenants pay their rent and avoid eviction.
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.
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.
June 17, 2020:- An eviction moratorium that applies to some properties (those with FHA-insured mortgages) just got extended, as this mortgagee letter from the Department of Housing and Urban Development (HUD) and this FHFA news release explain.
The decision does not mean that the broader federal eviction moratorium is being extended (only Congress can do that) or that the Massachusetts moratorium is being extended (only the Massachusetts Governor can do do that, or — if it decides to amend the eviction-moratorium statute — the Legislature). The moratorium in question is one of three that may apply to your property if you are a housing provider in Massachusetts.
Before the Chapter 65 eviction moratorium there was the CARES Act eviction moratorium and before the CARES Act eviction moratorium there was the HUD eviction moratorium. Under Chapter 65, the eviction moratorium and ban on issuing notices to quit will expire on August 18, unless the Governor extends the moratorium by 90 days.
There is some overlap between the federal and State moratoria, so that even if the Massachusetts moratorium expires on August 18, a housing provider may still not be able to go to court for unpaid rent, or even terminate the lease by way of a notice to quit, if the tenant lives in a property financed by an FHA-insured mortgage. It’s all a bit of a jigsaw puzzle.
Takeaway: Housing providers in Massachusetts should not assume that after August 18 they will be able to issue non-paying tenants with notices to quit.
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.
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.
June 11, 2020:- Here’s a grip-and-grin photo of Governor Charlie Baker and yours truly back in 2018 (I’m the one with the beard). If I met the Governor again today and could ask him one thing, it would be to let the eviction moratorium expire.
Why? Because, as I point out in my latest article for MassLandlords, the eviction moratorium is making affordable housing even scarcer. It encourages housing providers to keep vacant units off the market. For the full text of the article, click here.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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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.
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.
Peter Vickery, Esq., 