Executive overreach: CDC eviction moratorium usurps Congress

September 18, 2020:- The New Civil Liberties Alliance lawsuit against the CDC eviction moratorium order (Brown v Azar) argues, among other things, that the agency’s order flies in the face of the non-delegation doctrine. This is the doctrine that says that the legislature cannot delegate its authority to the executive because doing do would violate article 1, section 1 of the Constitution of the United States, which vests all legislative power in Congress. It is supposed to help keep each branch of government in its own lane.

I find it hard to see how this particular argument can fail.

There is no doubt that the authority to establish a nationwide eviction moratorium lies (if anywhere) with Congress. To find evidence to support this, we do not have to look very far. In fact we only have to look back as far as April 2020, when Congress passed the CARES Act, section 4024 of which established a nationwide eviction moratorium.

If any branch of the federal government has the authority to bar property owners from going to court to seek the return of their own property, which is by no means certain, it is Congress. By imposing an eviction moratorium of its own, the CDC, an executive branch agency, is usurping the power that the Constitution vests exclusively in Congress.

Stay tuned.

“US Capitol” by keithreifsnyder is licensed under CC BY 2.0

She can’t even quit

Sometimes quitting would be great

September 2, 2020:- Imagine they passed a law saying that you’ve got to go to work every day of the year, and if the company doesn’t pay your wages, that’s just too bad. You can’t sue them. You can’t go on strike. You can’t even quit.

I have a client who is in a position something like that.

She works as a housing provider, in addition to her day job as a nurse. She owns her own home and one other house that she bought in order to rent it out. Her goal was to use the rental income to pay the bank, and then (when she’d paid off the mortgage) start making a profit.

“It was supposed to be my 401(k),” she told me.

Not a 401(k)

That’s not how it turned out. In November 2019, the tenant (then, as now, unemployed) stopped paying rent, so my client started summary process (eviction) proceedings in Housing Court. But then the Legislature and the Governor passed Chapter 65, the partial eviction moratorium, which prohibits the courts from moving forward with non-payment cases even if the reason for non-payment has nothing to do with COVID 19 or the state government’s job-destroying, livelihood-wrecking response to it.

So the summary process case is suspended until the moratorium expires, which could be in October or might be in January if the Governor chooses to extend it. Or it could be even later; who knows.

When the case emerges from limbo, it will be one among thousands waiting for a judge to hear it. In the meantime, is there anything my client can do to try to get paid? At this point, the rent arrears are somewhat north of $8,000, by the way.

Another route?

Two attorneys brought a constitutional challenge to the partial eviction moratorium, namely Jordana Rubicek Greenman and Richard Vetstein. For details of the lawsuit, check out Attorney Vetstein’s blog.

I wrote an amicus brief for MassLandlords, and watched the oral argument before Superior Court Judge Paul Wilson online. In the course of the argument, Attorney Vetstein made the point that the moratorium is barring the courts to one class of litigants, i.e. landlords. Not so, responded counsel for one of the tenants’ organizations who said that the courts aren’t barred because landlords can still sue tenants for breach of contract.

In his order denying the request for a preliminary injunction, Judge Wilson said the same thing: “[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.”

Could that really be a viable route, I wondered? Could landlords, who can’t use summary process for the foreseeable future, sue for breach of contract? The client I’m writing about here agreed to try.

Breach of contract case

On her behalf, I filed a simple breach of contract case in Housing Court. The tenant’s (taxpayer-funded) lawyer filed a motion to dismiss under Rule 12(b)(9) of the Massachusetts Rules of Civil Procedure on the basis that my client can’t have two cases about the same issue going at once.

Fair enough, you might say, why not just dismiss the summary process claim? Dismissing a case where the other side has filed counterclaims (which happened here) requires a motion that a judge has to rule on, and the partial eviction moratorium prohibits the courts from scheduling a court event.

More importantly, if my client did dismiss her summary process case, in order to regain possession of her house when the moratorium expires she would have to start all over again. She would be at the back of a line. A very long line.

Regarding those counterclaims that the tenant filed: Are there two sides to this story? Obviously.

But what if (after the moratorium expires) a judge, after hearing all the evidence, decided that even if some of the counterclaims were valid, the tenant owed my client, say, 75% — or even 50% — of the rent that had built up since November 2019? Does anyone really believe that the unemployed tenant will be able to pay several thousand dollars?

Anyway, we had a hearing, and the judge took it under advisement. When the court issues the decision, I will post an update.

No names, no pack drill

This story is far from being the most extraordinary that I have heard in the last few months. This one seems worth telling today, now that the federal government has established a nationwide eviction moratorium and there is some wider public discussion of the administration’s proffered justification and the likely impact.

My client gave me permission to tell her story online, but I decided not to use her name or other identifying information because you know how things are these days.

Like the tenant, she is a real person. She deserves some consideration from policymakers, and from the people who are supposed to hold them to account, i.e. the electorate.

She has to pay to maintain the property and keep it up to code. The tenant won’t pay rent, and has not applied for the subsidies that are available to cover the rent. But without the tenant applying, my client can’t get access to those subsidies.

So my client doesn’t want to be a landlord any more, obviously. But she doesn’t have a choice. She can’t get paid, and she can’t even quit.

Governor extends eviction moratorium, and “strongly encourages” tenants to pay rent

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.

Photo by Pixabay on Pexels.com

What began as an emergency stop-gap in the Spring will continue at least until the Fall.

Governor Baker, let the eviction moratorium expire

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.

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Peter Vickery, Esq. and Gov. Charlie Baker

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.

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Photo by Brett Sayles 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.

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Photo by Andrea Piacquadio on Pexels.com

New landlord-tenant cases online

May 19, 2020:-  Volume 3 of the unofficial Western Division Housing Court reporter is now available online at masshousingcourtreports.org.

Please note that the reporter does not include all decisions and orders. The Court does not provide decisions from impounded cases and cases involving highly sensitive issues relating to minors, and the editors will generally exclude certain types of decisions, such as simple scheduling orders; terse orders lacking sufficient context to be of value to those unfamiliar with the case; and, decisions that relate certain types of particularly sensitive, personal information. A full description of the process and editorial standards can be found at the beginning of each volume.

stacked books
Photo by Suzy Hazelwood on Pexels.com

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.

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

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.

Tenant’s right to jury trial

March 31, 2017:- Today the Appeals Court issued its decision in CMJ Management Co. v. Wilkerson,  a landlord-tenant case from the Boston Housing Court.  After the tenant failed to comply with the pre-trial orders, the judge struck the demand for trial by jury.

The Appeals Court held that the judge should not have struck the demand without first considering “lesser sanctions.” But it also made clear that Housing Court judges do have the discretion to impose the sanction of striking a jury-trial demand, so long as the judge takes into account the tenant’s culpability, any prejudice to the landlord, and the deterrent effect. The right to jury trial is fundamental but it is not absolute.

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Peter Vickery, Esq.

Boom! Security deposits get the full Alderaan

April 29, 2016:- Security deposits are supposed to help cover the cost of damage to the landlord’s property. Yesterday, security deposits themselves sustained damage on an Alderaan scale.

In its decision in Meikle v. Nurse (see my earlier post) the Supreme Judicial Court held that a landlord’s violation of the security deposit statute provides the tenant not only with a counterclaim but provides a defense to possession. In plain English, a defense to possession means the tenant gets to stay.

For many years, Massachusetts landlords wise to the ways of the law have known that any mistake handling the security deposit (e.g. failing to give the tenant a piece of paper stating the name of the bank holding the deposit  and the account number) could result in them paying the tenant multiple damages plus the tenant’s attorney’s fees. But yesterday’s decision means that a mistake gives the tenant the right not just to money but to remain in the landlord’s property. Not forever, of course: The tenant “does not enjoy that right in perpetuity,” the SJC states reassuringly. To avoid a tenancy in perpetuity the landlord need only bring “a second summary process action for possession after he or she has remedied the violation of the security deposit statute.”

So what does bringing a summary process action for possession ordinarily involve? Serving a new notice to quit; waiting either two weeks or a full rental period depending on the nature of the notice; completing the new summons and complaint and making sure it aligns perfectly with the notice to quit (on pain of dismissal if it does not); serving a new summons and complaint (with the attendant sheriff’s fees) at the right time, not too early and not too late (on pain of dismissal for premature or tardy filing); filing the summons and complaint (again, not too early and not too late on pain of dismissal); paying the court’s filing fee; appearing in court; being presented with the tenant’s list of interrogatories, which automatically postpones the trial for 10 days; prevailing at trial (if the stars are aligned); seeking a writ of execution; watching the judge grant the tenant a stay of execution; and then, when the first stay has expired, watching the judge grant another stay of execution, and so on. Not quite perpetuity, perhaps, but close. The line between ad nauseam and ad infinitum starts to get a bit blurry after a year or so.

Will this new decision discourage landlords from taking security deposits? One would think so, those who fall into the rational-economic-actor category at any rate. Without security deposits, how will these rational economic actors insure themselves against the risk of tenants damaging their property (bearing in mind that an increase in the risk involved in renting increases the cost of renting)? Applying some basic economics, perhaps landlords will respond to an increase in the cost by raising the [fill in the blank].

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Peter Vickery, Esq.

Lopsided landlord law (plus quiz)

Lopsided laws are annoying. But here in Massachusetts we have the right to require that our legislators observe the principles of justice and moderation in formulating our laws. It says so in the Massachusetts Declaration of Rights (article 18, to be precise). So immoderate, unjust laws do more than annoy; they flout some fundamental constitutional principles.

Which prompts me to ask, Why do we put up with the dramatically different burdens that the law places on landlords who hold security deposits vis-à-vis tenants who withhold rent?

If you are a Massachusetts landlord you are free to ask for a security deposit to insure against the tenants damaging your property. But if you do, you had better comply with every jot and tittle of the security-deposit law, M.G.L. c. 186, §15B. The amount of the security deposit must not exceed one month’s rent (not by so much as a dollar), you have to place the deposit it in a separate, interest-bearing account in a Massachusetts bank — not a New Hampshire bank or a Connecticut bank — and give the tenant (1) a detailed receipt within 30 days, and (2) annual statements showing the interest that the deposit has earned. The law goes into great detail about what you must and must not do with the security deposit at the end of the tenancy. Innocent mistakes can prove as costly as deliberate violations. Landlords who are curious about the kind of oversights that could trigger multiple damages and attorney’s fees should watch this short slide-show video by tenants’ lawyer Arthur Hardy-Doubleday, Esq.  If pushed for time start watching at the 3:45-minute mark.

In contrast, if you are a Massachusetts tenant and you wish to withhold rent from the landlord (i.e. go on rent strike) the list of legal formalities you have to comply with is considerably shorter. Here is a short video on the subject.

Rent withholding has a reasonable purpose. Tenants are allowed to withhold rent if the conditions in the dwelling are unsanitary, which encourages landlords to make repairs promptly upon request. Fair enough. Mind you, just try that rationale in the realm of workplace relations.

Employer: “Your performance is inadequate.”

Employee: “Are you going to fire me?”

Employer: “No, and you can’t quit either. You have to keep working for us. But we’re going to stop paying you.”

Any employers desiring an insightful predictive analysis of the likely outcome of such an interaction should click here.

If tenants withhold rent, do they have to set the money aside?  After all, if — many months, or even years, after the rent strike started — the Housing Court judge decides that the landlord is entitled to some or all of the bank-rent, it could be difficult for the tenants to come up with money. It takes above-average self discipline to save the money rather than spend it on all the other pressing day-to-day demands, especially in a culture that actively discourages thrift (have you looked at interest rates lately?).

But no, the law does not require that tenants place the withheld rent in escrow, so nor do tenants have to provide the landlord with documentary evidence stating the name of the bank and the number of the account.

To recap, landlords holding security deposits have to comply with a long list of legal requirements whereas tenants withholding rent have to comply with none. Landlords who fail to give tenants a detailed statement within 30 days face the prospect of paying treble damages and the tenants’ legal fees. Tenants who withhold rent even if a judge concludes that the withholding was not justified do not have to pay a penalty of any kind.

If you think of tenants as wards of the state and your image of landlords conforms to popular Dickensian stereotypes, or this, or this, this imbalance in the law may not bother you much. If so, I urge to watch a real landlord, Garth Meikle, argue a real case in front of the Supreme Judicial Court. To see and hear Mr. Meikle click here, and start at minute 18:38.  Mr. Meikle simply wanted his apartment back so that one of his children could move in, but the tenant alleged that Mr. Meikle had made a mistake with the security deposit.  By the way, the tenant received pro bono representation from a Harvard Law School clinic; the landlord had to represent himself.

On the other hand, if you think that the provision of affordable homes is a social good that we should encourage or at least not discourage, and that it might be time to restore some balance to landlord-tenant law, there is hope. Recently I went to the State House to listen to testimony about a proposal to amend the rent-withholding law  by requiring tenants to deposit the withheld rent into escrow. Will it pass? I shall keep you posted.

Now for the quiz that I promised in the headline.

If I had to choose one word to describe the current security-deposit law it would be persnickety, an adjective (possibly related to the Scottish pernickety or pernicky) that boasts the highest jurisprudential imprimatur available on this side of the Atlantic, namely a 2011 decision of the Supreme Court of the United States.

Question: Which justice penned the opinion?

Email your answer to peter@petervickery.com with the word persnickety in the subject line. There will be a prize for the first correct answer.* But, please, no pre-quiz use of Google, LexisNexis, etc. We use the honor system around here.

* A warm glow.**

** Subject to availability, satisfaction not guaranteed, and no warranties as to fitness for general or particular purpose. Some glow-feelers may experience side effects so before winning this quiz talk to your primary care physician, pharmacist, and faith-community leader.

Justin Sargent 6
Peter Vickery, Esq.

Appeals Court vacates triple-rent award

February 23, 2016:-  A case that started in the Western Division Housing Court in 2009, Clark v. Leisure Woods Estates, Inc., has provided some clarity as to how much money a tenant can get from a landlord under M.G.L. c. 186, S. 14. Judge Robert G. Fields found that the landlord violated the quiet-enjoyment provision in two different ways and awarded triple damages for each violation, i.e. two separate triple-damage awards. The Appeals Court vacated one of the two triple-damages awards as duplicative, holding that

only one triple rent award is available in a single proceeding under S. 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.

In a footnote, the Court noted that the statute “prohibits five separate categories of landlord misconduct” of which the Leisure Woods case involved just one (interference with quiet enjoyment).  The decision “does not address a situation in which the landlord violated two or more categories.” So if landlords violate the right of quiet enjoyment and violate S. 14 in other ways as well (e.g. cross-metering, failing to provide adequate heat) they still face the threat of having to pay multiple damages for those other violations in addition to the quiet-enjoyment violation. But at least they are only liable for one triple-damage award per category.

In a nutshell, the decision limits the exposure of landlords somewhat, and reduces the leverage of tenants’ counsel concomitantly. Tenants who show 57 varieties of violation of their right to quiet enjoyment should not expect 57 separate awards of triple damages.

Justin Sargent 6
Peter Vickery, Esq.