August 29, 2022:- The latest volume of the Western Division Housing Court Reporter is available. The reporter is the unofficial compilation of decisions and orders issued by the Western Division Housing Court
To read volume 15, click here.
August 29, 2022:- The latest volume of the Western Division Housing Court Reporter is available. The reporter is the unofficial compilation of decisions and orders issued by the Western Division Housing Court
To read volume 15, click here.
Every rental agreement in Massachusetts — whether written or unwritten — contains an important clause. It will remain as part of the agreement even if both parties, landlord and tenant alike, want to waive it. No matter how hard you try, you cannot erase it.
What is this ineradicable clause? It is the warranty of habitability. It is the landlord’s guarantee that the landlord will, at a minimum, keep the premises in compliance with the State Sanitary Code, more particularly Chapter II of the Code titled Minimum* Standards of Fitness for Human Habitation.
So one easy way for landlords to breach the warranty of habitability, and land themselves in expensive trouble, is to ignore the State Sanitary Code. Ignoring the Code could result in the landlord having to pay the tenant damages (possibly multiple damages) plus the tenant’s legal fees.
On the other hand, by paying attention to the State Sanitary Code, and making sure that each and every rental unit complies with it, landlords are more likely to live up to the warranty of habitability, stay out of trouble, and maintain a healthy business relationship with their tenants.
State government has posted a synopsis of the responsibilities of landlords in Massachusetts. It is well worth a look. In the meantime, here are some — just some — of the requirements of the State Sanitary Code. The following five items are just a starting point, not an exhaustive list. Landlords and aspiring landlords should familiarize themselves with the Code in its entirety.
The State Sanitary Code states:
No person shall occupy as owner-occupant or let to another for occupancy any dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does not comply with the requirements of 105 CMR 410.000
That is a clear rule. If you provide rental accommodation, you must comply with the State Sanitary Code. There are three exceptions to the rule for landlords to know about: (1) dwellings on campgrounds that comply with the applicable State regulations for campgrounds, and (2) dwellings used exclusively as civil defense shelters. Those two exceptions are very narrow. The other exception? If the dwelling is covered by another part of the Code.
What if the would-be tenant says, “Don’t worry about the warranty of habitability. I’m happy to sign a contract waiving it. Or we can say that I’m using the apartment exclusively as a civil defense shelter. Just knock $50 off the rent.”
No. The warranty of habitability is not something a tenant can waive. And if the apartment is an ordinary rental unit, it not exclusively a civil defense shelter. A lease provision cannot transform an ordinary apartment into a civil defense shelter, even if both parties apply the George Costanza Doctrine of Truth. Housing Court judges do not take kindly to such ruses.
The State Sanitary Code establishes the minimum amount of living space that each dwelling unit must consist of:
Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area.
This does not include: rooms containing toilets, bathtubs or showers; laundries; pantries; foyers; communicating corridors; closets; and storage spaces. These parts of the unit do not count toward the square footage of floor space.
There is a separate square-footage requirement for rooms used for sleeping. For one occupant, the sleeping room has to contain at least 70 square feet. For more than one occupant, the sleeping room must have at least 50 square feet for each person, e.g. for two occupants, 100 square feet; for three occupants, 150 square feet.
A unit that is less than 150 square feet, excluding closets and storage spaces, is not a Code-compliant unit. An owner who rents such a unit to a tenant is breaching the warranty of habitability.
What if the unit is 145 square feet, just 5 feet under the minimum, and the would-be tenant says, “I don’t mind. Just knock $50 off the rent?”
No, the landlord is not able to contract out of the warranty of habitability.
The unit must contain a kitchen sink and space to store, prepare, and serve food in a sanitary manner, and there must be a stove in good repair. Unless the written agreement puts the obligation on the tenant to provide a stove, the landlord must provide one. In addition, there must be space and connections for a refrigerator.
The kitchen must have at least one lighting fixture and at least two electrical outlets (for the kettle, coffee-maker, toaster, etc.) in “convenient locations.” In practice, this means that the tenants should not have to plug in the toaster down at the skirting board or up by the picture rail!
The Code also requires a kitchen window:
For each kitchen over 70 square feet, transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that kitchen.
What if the would-be tenant says, “I don’t mind not having a kitchen. Just knock $50 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
What if the landlord says to the would-be tenant, “There is no light fixture in the kitchen. I could install one if you pay for it.”
“Sure, I’ll pay for it,” says the would-be tenant.
No, the Code says that the owner must provide the fixture and outlets and it defines the word “provide” as “supply and pay for.”
Everything that the owner installs, the owner must maintain. For example, the owner has the duty to maintain the toilets, sinks, wash basins, water pipes, sewer lines, and gas lines free from leaks, obstructions, and defects. If the owner installed the stove and refrigerator, the owner must keep them in good repair. When the tenant tells the owner that the faucet is leaking, the owner has to repair it.
Does the Code say what standard the owner must live up to? Yes, the owner must install and maintain facilities “in accordance with accepted plumbing, gasfitting and electrical wiring standards.”
So who should do the plumbing? A licensed plumber. The wiring? A licensed electrician.
But let’s say the kitchen sink has always leaked. It leaked when the landlord bought the place, and it has leaked ever since. During the showing, the landlord says to the would-be tenant,
“The kitchen sink leaks. It’s leaked from the get-go. Somehow I never get around to fixing it.”
“That’s OK,” says the would-be tenant, “I don’t mind a leaky sink. Just knock $10 off the rent.”
No, the landlord is not able to contract out of the warranty of habitability.
The Code states that in every habitable room other than the kitchen there must be:
transparent or translucent glass which admits light from the outdoors and which is equal in area to no less than 8% of the entire floor area of that room
It also says:
The owner shall provide, install and maintain locks so that… Every openable exterior window shall be capable of being secured.
A habitable room needs a window of sufficient size. If the window is capable of being opened it needs to have a mechanism to keep it from simply sliding or falling open or from being opened from the outside (by an intruder, for example). It needs a lock.
What if the latch on the living-room window fell off?
“I see that the living room window doesn’t have a lock or even a latch that works. Could you knock $50 off the rent?”
“Sorry,” says the owner, “I can’t buy my way out of the warranty of habitability. I’ll install a lock tomorrow. And I’ll send you the bill.”
No, the owner is not allowed to charge the tenant for the cost of making the exterior window secure. The owner’s duty is to provide the lock, and the word “provide” means “supply and pay for.”
Anyone who intends to become a landlord in Massachusetts should become familiar with the State Sanitary Code, and consistently comply with it. Failing to comply with the Code and breaching the warranty of habitability could be a very expensive mistake.
*This is the word to focus on. The State Sanitary Code establishes the minimum standards of fitness for human habitation. Think of it as a floor, not a ceiling.
February 18, 2022:- Yesterday the Fifth Circuit Court of Appeals sent a vaccine-mandate case back down to the District Court for the judge to re-consider the employees’ request for a preliminary injunction. The case is Sambrano, et al, v. United Airlines, Inc., United States District Court for the Northern District of Texas USDC 4:21-CV-1074.
The employees are suing the employer because the employer requires them to receive a COVID-19 vaccination. The District Court had denied the employees’ request for a preliminary injunction on the grounds that the employees could not show “irreparable injury,” but the Court of Appeals disagreed:
Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.
Check here for updates on this case.
September 8, 2020:- Quite properly, Attorney General Maura Healey is cracking down on wage theft, according to this article on MassLive. Wage theft is where a worker provides a service but does not get paid.
It’s a shame that housing providers who provide housing without getting paid can’t look to the Attorney General for help.
July 29, 2020:- Today the Appeals Court reaffirmed that the employment relationship between a religious organization and its ministers is beyond the reach of the anti-discrimination laws. The court held that the “ministerial exemption” covered the job in question, namely director of music ministries, and that the trial judge was right to dismiss the plaintiff’s age- and gender-discrimination case against her former employer.
As the ruling points out, the purpose of the exemption is to prevent courts depriving a religious organization of control over “the selection of those who will personify its beliefs.”
You can read the decision in Menard v. Archdiocese of Boston, which proponents of freedom of conscience and religion will welcome, by clicking here.
June 19, 2020:- This Juneteenth please take some time to remember James H. Wolff, Esq., a naval veteran of the Civil War and co-founder of the first Black law firm in Massachusetts.
Wolff was just 14 when he enlisted in the US Navy at the outbreak of the Civil War. Born to free parents in New Hampshire, he must have known that by volunteering to fight the Slave Power he was at risk of losing both his liberty and his life. Live free or die were the conditions of his daily life, not simply a motto.
He was aboard Minnesota when she bombarded the Confederates into surrender at Fort Hatteras, and when she became a stationary target for enemy fire after running aground early in the Battle of Hampton Roads. Three of her crew died in that engagement.
Wolff survived the battle and the rest of the war, and went on to practice law in Massachusetts. Twenty years after the war’s end and the passage of the Massachusetts anti-discrimination act, Wolff represented the plaintiff in a case that tested the statute’s limits and led to its expansion. His client in that 1885 case, Edward E. Brown, also happened to be his law partner. Together with attorney Edwin Garrison Walker, Wolff and Brown established the state’s first Black law firm. It was a firm with a mission.
After the decision of the Supreme Court of the United States in the Civil Rights Cases, 109 U.S. 3 (1883) that Congress lacked the constitutional authority to prohibit private discrimination (effectively neutralizing the federal Civil Rights Act) Wolff and his partners helped lead the campaign for stronger state-level legislation in Massachusetts. One element of that campaign took the form of a lawsuit against a Boston skating rink that refused to sell tickets to people of color. Brown was a plaintiff, and Wolff his attorney. They won.
Coordinating the case and legislative effort to enforce and amend the 1865 law was the Wendell Phillips Club, which functioned as a sort of precursor to the NAACP, bringing together business owners, ministers, and lawyers in the cause of civil rights. Walker, Wolff, and Brown were at the forefront, litigating and lobbying for liberty pro bono publico while somehow bringing in enough billable work to pay the bills and raise their families (both of Wolff’s sons followed him into the law, by the way).
For a fuller account of the case, see my article “The Genesis of the Black Law Firm in Massachusetts,” Massachusetts Legal History 5 (1999). Not quite everything ever published is available online, it seems, so if you would like a copy, email your request to email@example.com.
In the meantime, please devote a few moments of thought to James H. Wolff. An exemplar of physical and moral courage, he is worthy of remembrance.
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.
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.
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.
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 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.
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 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.
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 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.
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.
“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.
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.
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.
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.
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.”
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.
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.
April 23, 2020:- Landlords and lawyers should bear in mind that the new eviction-moratorium law does not prohibit all evictions. The definition of “non-essential evictions” excludes:
(a) criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or
(b) lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.
Such evictions are not non-essential. Put another way so as to avoid a surfeit of negatives, such evictions are essential.
Note in particular the words “may,” “impact,” and “or.” The law does not say that the tenant’s criminal activity/lease violations must have a significant impact on the health and safety of another person, only that it “impact” the health or safety. Plus, it uses the disjunctive “or” as opposed to “and.”
What kind of activity can be said to “impact” someone’s health, including mental health? That is food for thought.
Takeaway: If a tenant’s activity may impact the health or safety of another person, the new law allows the landlord to file–and does not authorize the court to reject–a summary process case.
April 15, 2020:- Just when you thought it couldn’t get any worse. If the Massachusetts Legislature passes the eviction moratorium embodied in this bill, which emerged from the Senate today, it will not only violate two of the bedrock rights that are guaranteed in the Massachusetts Declaration of Rights, but will also grant to the Governor a power that no executive branch in the Anglosphere — no English monarch even — has claimed since the 17th Century: the power of suspending and dispensing the laws. This is a step backward, a step back to the era of royal absolutism.
It was already bad enough that our full-time salaried lawmakers wished to take private property without compensation and bar people from going to the courts. As I pointed out in a previous post, Article 10 of the Massachusetts Declaration of Rights guarantees reasonable compensation when the government takes property for public uses and Article 11 guarantees everyone the right to a remedy by recourse to the law and the right to obtain justice freely and promptly. Neither of those articles contains a carve-out for when the Governor declares an emergency.
Now the Legislature intends to strip away another right, one that the people of Massachusetts granted to their Legislature, namely the power to decide how long a statute should remain in force. Section 7 of the new bill says that the eviction moratorium will expire in 120 days unless the Governor extends it. Read that again. Unless the Governor extends it. The alleged power to suspend or dispense legislation was a medieval prerogative reclaimed in the 1640s by Charles I. Things went poorly from there, for both the king and the kingdom.
If this were simply a matter of the Legislature surrendering their own rights to the executive branch, it would merit little more than a meh. But the right is not theirs to give. The purpose behind the separation of powers is to protect the rights of the people, not the rights of their full-time salaried servants in the State House.
If Governor Baker signs this bill into law we will have crossed another constitutional threshold.
March 31, 2020:- For many people in Massachusetts, tomorrow rent is due. Some will face a very tough choice. Why?
Because today is the seventh day since Governor Baker’s business-closure order took effect. At the stroke of a pen, approximately 150,000 people had their jobs and livelihoods taken away (albeit with the best of intentions on the part of the Governor).
People are hurting. For a lot of us, renters and home-owners alike, it feels like we are about to fall off a cliff.
In this emergency, no landlord would want to ask the Housing Court to evict a tenant for nonpayment of rent. And now many do not have that option anyway, even for tenants who are still in work and can afford to pay rent. Why?
Because today is also the fifth day since Congress passed the CARES Act, which (among other things) imposes a 4-month moratorium on evictions from residential properties with federally-backed mortgages. For the applicable language, scroll down to page 574 and read Section 4024(a)(4) and (5).
In the coming months, more and more people are going to face hardship and the appalling choice between food and rent. I know which one I would choose.
There will be a handful–there always is–of those who can pay but won’t; those who will take advantage, safe in the knowledge that if they live in a property with a federally backed mortgage the landlord must not send them a notice to quite, let alone ask a judge to evict them.
So who is going to pay for the cost of housing people who can’t (or won’t) pay rent?
Who is going to pay the landlord’s employees and contractors, the people who keep rental homes fit to live in?
Again, most of us know that the Governor has the best of intentions in issuing the orders that are causing businesses to close down and shed workers. That’s a given. But when it creates a problem, government has a responsibility to fix it. Here’s one way, and if you agree please sign the petition.
The Commonwealth should immediately stand as surety for renters who cannot afford to pay rent. A surety bond is a guarantee that if one party to a contract does not perform its obligations (e.g. fails to make timely payments) an outsider will pick up some or all of the tab so that the other party to the contract does not lose out.
In order to safeguard homes during and after the emergency, the Legislature needs to act now and issue surety bonds.
If you think that the Commonwealth as a whole should stabilize housing by guaranteeing rents via surety bonds, sign the petition today.
Tell the Legislature to keep us from falling off that cliff.
March 6, 2020:- Civil asset forfeiture is a way for law-enforcement agencies to acquire property (money, vehicles, real estate, etc.) from people who have not been charged with, let alone convicted of, any crime. If somebody — anybody — used the property, or even just intended to use it, in the commission of a drug crime, the government can take the property, sell it, and keep the proceeds, and all without the rigmarole of a trial.
Under Massachusetts law, G.L. c. 94C, sec. 47(d), if the Commonwealth establishes probable cause (not a very high bar) the burden is on the owner to prove that the property is not forfeitable.
For example, one case in Tewksbury involved local and federal agencies trying to take a motel that had been in the same family for two generations. The reason? Over the course of 14 years during which the owners had rented out rooms approximately 200,000 times there had been 14 drug-related arrests on the premises. There was no suggestion that the owners themselves had done anything wrong.
As an editorial Massachusetts Lawyers Weekly in 2019 stated:
All of this makes it too easy for property to be confiscated, and creates incentives for police and prosecutors to use forfeiture as a way to target those without the ability to fight a seizure. The law can also lead to unintended consequences, such as putting elderly parents or minor children living in a target’s house at risk for homelessness.
I am committed to helping reform the these laws, and am working with other concerned citizens to raise awareness and organize for change.
In the meantime, if law enforcement is trying to obtain your property through forfeiture, email/call me for a free 30-minute consult.
Tel. 413.992.2915 Email: firstname.lastname@example.org
March 4, 2020:- The Massachusetts Commission Against Discrimination (MCAD) has published three new decisions (link).
One of the cases (Chase, et al v. Crescent Yacht Club, et al) involves an award of attorney’s fees and cots in the amount of approximately $83,000.00 on top of a damages award of almost $30,000.00.
February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.
For my earlier post on the subject, click here.
January 28, 2020:- The federal Department of Housing and Urban Development (HUD) has issued a new guidance document on the subject of assistance animals, a term that covers (1) service animals, and (2) support animals. Its purpose is to clarify the rights and responsibilities of housing providers and people with disabilities in the area of reasonable accommodations under the federal Fair Housing Act (FHA).
As HUD clearly states, the guidance document is just that: a guidance document, not something that expands or otherwise alters obligations under the federal Fair Housing Act.
To read the document click here.
September 19, 2019:- At 12 noon on October 9 in its Springfield office, the Massachusetts Commission Against Discrimination (MCAD) will hold a public hearing on proposed changes to its procedural regulations. For a link to the notice click here.
One proposal in particular caught my eye, as I mentioned in a previous post, and here is the text of the comment I submitted to the MCAD in support of it:
804 CMR 1.13(9)(b)(3)
The proposed rule provides that “where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.”
As an attorney who has previously complained about the Commission investigating charges without having adjudicated a motion to dismiss for lack of jurisdiction, I welcome this proposal. A clear and unambiguous grant of discretion to issue a stay would be a significant improvement on the current situation.
However, where a respondent’s motion raises the limitation period I believe that a stay should be mandatory not discretionary. The purpose of a statute of limitation is to provide a degree of certainty and predictability, which purpose is undermined when investigations commence after the statutory deadline has passed. Accordingly, where a motion seeks dismissal based on the expiry of the limitation period, the Commission should only continue to investigate after determining that the period has not expired and the Commission does, in fact, have jurisdiction.
In order to maintain the principle of separation of powers (one of the bulwarks of liberty), agencies should operate within, not beyond, their statutory remit. Conducting an investigation without jurisdiction violates that principle. It should not happen. This proposed regulation goes some way toward preventing the MCAD exceeding its authority, so I hope that it makes the final cut.
I intend to be at the public hearing in Springfield and to post a brief report of what, if anything, occurs. Probably it will not be necessary to arrive hours ahead of time and queue for a seat. After all, on October 9 many Bay Staters will be busy observing the anniversary of the banishment of Roger Williams in 1635 or celebrating Leif Erikson Day. Quite possibly, therefore, there may not be much of a crowd at the mid-week, noontime meeting to discuss amendments to the MCAD’s procedural regulations. But you never know. In the meantime, if readers would like to know more about the issue, please post a comment or email me.
January 15, 2019:- The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.
Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.
The new proposed rules give the Investigating Commissioner clear authority to issue a stay.
Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.
Draft 804 CMR 1.13 (9)(b)(3). Here is a link.
Although not as good as an automatic stay, this is a very welcome step. Well done, MCAD.