Rich Vetstein

Suffolk Sheriff Deputies Enforcing Eviction Order

Recent Case Shows Fundamental Flaws Remain In The Housing Court Eviction System

I recently concluded an eviction with a forced moved out in Dorchester, MA, which epitomizes everything that is wrong with the system here in Massachusetts. For the privacy of the parties, I will not divulge the names or docket number of the case.

I represented the property owner, a young woman who grew up low income in Worcester and put herself through college, then law school, and is now working at a law firm. She bought a condo unit in Dorchester, but then had to relocate for work, so she rented it out to four people, including the defendant-tenant. The tenant, a young male, had a very hard time getting along with the other housemates so the three other tenants moved out, leaving this tenant there alone. Initially my client said that if he found new roommates, he could stay, but it was apparent that he was not going to do that, so we issued a notice to quit back in January 2021. He also stopped paying any rent.

When he failed to move out, we filed the eviction in Eastern (Boston) Housing Court in March 2021. The tenant was savvy and knew how to work the system. He took advantage of free legal services attorneys at every juncture in the case. We had two mediation sessions, where initially he appeared willing to enter into a move out agreement only to pull the rug out at the very last minute. We even dangled a cash-for-keys deal, which he rejected.

The tenant then tried to claim a jury trial after the deadline to do so, so we had a motion hearing on that issue, which thankfully Judge Kelleher denied that motion, but this also delayed the case. There was a snowstorm cancellation on the original trial date thrown in as well. We finally received a firm bench trial date in March 2022 — a full year after the case was filed. The tenant also refused to apply for RAFT aid (and we did not want to pursue that because we would be required to dismiss the case). Believe me, I tried to push the case forward as fast as I could, but with the pandemic case backlog it is very difficult.

My client came in from California for the trial which took all of 20 minutes, and went in our favor on all issues. Meanwhile, the tenant had still not paid a penny in rent, and the rent balance had ballooned to over $40,000 by that point. Judgement for possession entered for the landlord, and an execution for possession (move out order) issued in April 2022.

Due to the pandemic caused backlog of cases, the Suffolk Sheriff’s Office is extremely backed up in scheduling eviction move-out’s. We did not receive a firm date for our move out until June 1. We tried to negotiate a voluntary move out with the tenant but he would not budge. After all, he was living rent free himself in a 4 bedroom condo unit — why would he move out?

On June 1, a team of Suffolk Sheriff deputies, movers and a locksmith (all paid for by the landlord) conducted the move out. The tenant was completely non-cooperative and refused to open the door. A supervising lieutenant and Boston police officers were called as back up because you never know what could happen in this day and age. After about a 90 minute stand off, the deputies breached the door and gained entry. Not surprisingly, the unit was absolutely trashed, rugs destroyed, bottles of liquor everywhere, walls damaged, etc. Huge thanks to the Suffolk Sheriff deputies who were unbelievably professional and a pleasure to deal with.

After 16 months since the notice to quit was issued, here are my client’s losses: Lost rent ($55,000), attorneys’ fees ($10,000 range), court costs and eviction move out costs ($6000 range), clean up restoration costs ($5000+ range).

It’s these type of cases which should be highlighted when state legislators push the Right to Counsel and Just Cause Eviction bills. Massachusetts remains one of the worst states for landlords in the country. That much is undisputed.

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Justice Joseph M. Ditkoff

Appeals Court Justice Joseph M. Ditkoff Rules Boston Eviction Moratorium Must End On February 28, 2022, But Questions Remain Whether City Will Enact New Tailored Moratorium

The legal challenge to the Boston Eviction Moratorium just took an interesting turn on appeal. After Housing Court Justice Irene Bagdoian struck down the moratorium in a scathing opinion, Appeals Court Justice Joseph Ditkoff, considering an appeal along with a motion to stay by the Boston Public Health Commission, ruled that the moratorium must end no later than February 28, 2022. In an unusual move, he then commented in dicta (observations which do not hold the force of legal precedent), that the City could revise and narrow the moratorium based the current state of Covid-19 in the City. While landlord attorneys view the ruling as a win, a lot of attorneys who practice in the Housing Court are scratching their heads, trying to navigate the impact of this ruling on whether eviction move outs can proceed now, after February 28, or in the future. Certainly, if the City attempts to revise the moratorium, this would likely result in further litigation (in this case or others) over whether the current Covid-19 pandemic warrants further suspension of evictions in the city.

Take Away From Ruling

In drawing take-away’s from this ruling, the procedural posture is important. Back in November 2021, landlords and constables won a declaratory judgment from Justice Bagdoian that the moratorium exceeded the powers of the BPHC. She declined to stay that ruling, and the commission appealed to a single justice of the Appeals Court and sought a stay with Justice Ditkoff. A seeking a stay pending appeal must ordinarily meet four tests: (1) the likelihood of appellant’s success on the merits; (2) the likelihood of irreparable harm to appellant if the court denies the stay; (3) the absence of substantial harm to other parties if the stay issues; and (4) the absence of harm to the public interest from granting the stay.

On the first prong of the test, Justice Ditkoff disagreed with Judge Bagdoian. He felt that the moratorium was a “reasonable health regulation” enacted by the BPHC. But, he noted that under relevant Supreme Judicial Court legal precedent, an eviction moratorium of six months was reasonable. (The current moratorium has no stated termination date). As such, he ruled in this case only that the moratorium would stay in place through February 28, 2022 (which is 6 months from when it was enacted).

What’s Next? It Is Unclear

So what will happen next? There are several scenarios in play. Justice Ditkoff stated in dicta: “That is not to say that evictions necessarily must resume on March 1, 2022. The moratorium . . . could be extended for up to an additional six months upon a showing of hardship. In light of the rapidly changing situation arising from the COVID-19 pandemic, I have no occasion to consider at this time whether, at the end of February, the commission could enact a tailored and time-limited extension of the moratorium on the basis of the then-current COVID-19 hospitalizations and community positivity rates.” Thus, Mayor Wu’s office could come out with a revised moratorium order, more narrowly tailored and limited in duration. Or, she could extend the current order. Whatever she decides, further litigation will certainly follow. I know that the plaintiff/landlords are considering an appeal Justice Ditkoff’s ruling, which in my opinion would be warranted given the his faulty reasoning and the huge importance of the issue to landlords. That appeal could wind up before the entire Appeals Court or the Supreme Judicial Court. It is unclear at this point, and the timeline is unpredictable.

More Confusion

There is also a question as to the applicability of this ruling outside the parties in the case. The ruling was made in connection with a motion to stay — it is not supposed to be a decision on the merits — although Justice Ditkoff went far past that procedural limitation and said a lot of things about the merits of the moratorium. Justice Ditkoff also stated: “It should be stressed that I have considered only the legal rights of the city and the tenant, landlords, and constable before me. No doubt other tenants, landlords, and constables could raise different arguments regarding the validity of the moratorium, and due process requires that every such party be heard before a determination of that party’s rights are made. Nothing in this order should be construed as limiting or adjudicating the rights of parties not before me.” So this indicates that further challenges to the City moratorium could be raised in individual cases in the Housing Court. Which is odd because Ditkoff ordered that the moratorium would end no later than February 28. We’ll have to wait and see how this plays out. All of this, no doubt, cries out for a final and conclusive ruling from either the full Appeals Court or SJC.

As always, I’ll keep you posted on further developments. Check back here at the end of the month. I’ve posted Justice Ditkoff’s ruling below.

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LINK TO VIRTUAL HEARING LIVESTREAM CLICK HERE

The Massachusetts Legislature’s Joint Committee on Housing will hold a virtual hearing and take testimony on 20 controversial Landlord-Tenant bills on Tuesday, January 11, 2022 at 11 a.m. These bills include some of the most controversial and radical measures ever to reach Beacon Hill, including a return to rent control, the Housing Stability Act, Just Cause Evictions, Rent Cancellation, and many others.

Members of the public can register to testify by filling out this FORM by 5 p.m. on Friday, January 7, 2022.

Despite the large number of controversial bills, testimony will be limited to three minutes per individual, and the committee reserves the right to call public officials out of turn.

The bills which will be heard are the following (click Bill number for link to bill text):

H.1374 — An act relative to senior and non-elderly disabled housing (Rep. Biele)
H.1378 — An Act enabling local options for tenant protections (Rep. Connolly)
H.1380 — An act relative to capital relief in a counterclaim (Rep. Coppinger)
H.1381 — An act relative to reducing barriers in housing (Rep. Coppinger)
H.1401 — An act relative to provide tenant ownership in government assisted housing Rep. González)
H. 1429 — An act relative to the use of credit reporting in housing (Rep. Malia)
H. 1440 — An act relative to the stabilization of rents and evictions in towns and cities facing distress in the housing market (Rep. Rogers)
H. 1443 — An act requiring notice to landlords relating to gas or electric shutoffs (Rep. Roy)
H. 3721 — An act relative to avoiding senior homelessness and maintaining senior housing-stabilization of rents (Rep. DuBois)
H.4057 — An Act facilitating local approval of condominium conversion ordinances (Rep. Connolly)
H.4148 — An Act canceling the rent and providing relief to all impacted by the COVID-19 emergency (Rep. Connolly)
H.4208 — An Act authorizing the city of Somerville to enact Right to Purchase Legislation (Rep. Uyterhoeven)
H.4229 — An Act to restore Boston’s governmentally-involved housing protection (Rep. Elugardo)
S.863 — An Act relative to the disclosure of smoking within a multi-residence building by lessor (Sen. Brownsberger)
S.866 — An Act relative to homes for all (Sen. Chang-Diaz)
S.869 — An Act relative to reducing barriers to housing (Sen. Crighton)
S.884 — An Act to reduce the financial barriers to renting homes (Sen. Eldridge)
S.886 — An Act enabling local options for tenant protections (Sen. Gomez)
S.889 — An Act relative to the stabilization of rents and evictions in towns and cities facing distress in the housing market (Sen. Jehlen)
S.894 — An Act relative to the use of credit reporting in housing (Sen. Lesser)

Please contact Luke O’Roark at [email protected] for questions or inquires or to submit written testimony.

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The Difference Between Winning and Losing A Real Estate Contract Lawsuit

I have handled a myriad of cases enforcing and defending real estate contracts, particularly involving Offers to Purchase and Purchase and Sale Agreements. For buyers, these cases typically involve the standard form Offer (or Contract) to Purchase, a one or two page short form contract, which under Massachusetts law (McCarthy v. Tobin) is a binding and enforceable contract. The seller then usually attempts to wriggle out of the deal or may even receive a higher or better offer. Sometimes the transaction has progressed past the execution of the Purchase and Sale Agreement and falls apart, and the buyer still wants to close, or the seller believes the buyer has violated the agreement and wants to retain the buyer’s deposits. When that occurs, litigation often ensues.

Specific Performance

The buyer wants to pursue the deal, and asks “Can a judge make the seller perform and close?” The answer is yes, under the theory of “specific performance.” However, the buyer must establish several elements for such a claim.  The buyer must establish: (1) the existence of a written contract containing reasonably specific terms signed by or duly authorized by the other party and otherwise binding upon such party, and (2) the breach of that contract by the seller.  The breach of contract may be shown by (i) a clear repudiation of the contract by the seller, (ii) the buyer’s tender of performance, formally or by notice, and (iii) a demand for performance with the buyer ready, willing, and able to proceed to a closing.

A solid paper trail is critical to winning these cases. The parties and their transactional lawyers in the underlying deal should always document the seller’s repudiation or breach of contract and the buyer’s willingness to close, preferably by letter or email. These days, text messages can also be helpful, but often open to differing interpretations. Armed with exhibits of emails and texts, the buyer’s attorney can often persuade the judge that the seller has unjustifiably breached the contract and issue a lis pendens (discussed below), and after trial or summary judgment, an award of specific performance.

Obtaining Leverage — The Lis Pendens

The difference between winning and losing (or settling favorably) is for the buyer to obtain a Lis Pendens from the court. As I have written about in this article, a lis pendens is Latin for “a suit pending.” The lis pendens is recorded at the registry of deeds against the property and its owner(s), creating a cloud on the title to the affected property. A lis pendens will, in many cases, effectively prevent the owner from selling the property while the lawsuit is pending — which could be years, thereby giving a buyer incredible leverage in the case. In order to obtain a Lis Pendens, a buyer must show that the claim “affects the title to real property or the use and occupation thereof or the buildings thereon.” A buyer should file a motion for lis pendens right from the start of the case, seeking a quick hearing on the motion, or even ex parte (without the seller getting advance notice, if there is a clear danger that the property will be conveyed).

Defending the Lis Pendens and Claim for Specific Performance

If you are a seller defending a claim for specific performance and a motion for lis pendens, the deck is often stacked against you out of the starting gate. The standard of review favors the buyer because unlike obtaining an attachment or other pre-judgment lien, a lis pendens does not require a showing a likelihood of success on the claim. A lower standard is used — the claim must not be frivolous or lack an arguable basis in fact or law. Further, buyers typically run into court quickly, and there is often a time crunch to gather and marshal all the evidence before the initial hearing on the motion for lis pendens. Nevertheless, I have been successful in beating back lis pendens motions by raising defenses such as the Statute of Frauds, which requires a writing signed by the party to be charged, and other contractual defenses.

Special Motion to Dismiss and Certification That No Material Facts Have Been Omitted

In defending claims for specific performance and lis pendens’, I have been most successful using the “special motion to dismiss” and raising the requirement that plaintiffs must certify that no material facts have been omitted from their complaint.

The “special motion to dismiss” is a newer tool which allows defending parties to dismiss a lawsuit seeking a lis pendens by showing: that the action or claim is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. This standard is relatively high, however, it can be reached with the right factual record and defenses in play.

I’ve also had success pushing another one of the new requirements of the amended Lis Pendens Statute: the requirement of a verification on a complaint to “include a certification by the complainant made under the penalties of perjury that . . .  that no material facts have been omitted therefrom.” Courts have ruled that a party’s failure to include all material facts in its complaint may result in the dismissal of that party’s claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law. If the plaintiff has failed to disclose all of the relevant facts in the case, often those which are unfavorable, you can raise this defense which may give you some traction with the judge.

As you can see, this area of law is quite complex for the layperson. Consultation with an experienced real estate litigator is paramount. If you are dealing with such a case, feel free to reach out to me at [email protected].

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Mayor Wu Loses Again In Housing Court; City Eviction Moratorium Remains Unlawful and Evictions Can Move Forward (For Now)

For the second time in a month, Housing Court Justice Irene Bagdoian has dealt the City of Boston’s Eviction Moratorium a major setback, this time, strongly rebuffing the City’s request to stay her previous ruling striking down the Moratorium pending appeal. In a scathing 16-page opinion citing a “nearly unachievable” likelihood of success on appeal by the City and the public’s “faith in our court system to deliver fair and swift adjudication and resolution of claims,” Judge Bagdoian refused to resurrect the City’s eviction moratorium during the City’s appeal. The judge also called out Mayor Wu’s public statements regarding her previous ruling which were inconsistent with the legal positions taken by the City in the case.

The fate of the City’s controversial eviction moratorium will now proceed to the Appeals Court, where the timetable is unknown as of this writing. Absent a stay from the Appeals Court, evictions and move out orders can proceed within the City limits.

Acting Mayor Kim Janey put the moratorium in place in August after the U.S. Supreme Court struck down the nationwide Covid-19 eviction moratorium enacted by the Centers for Disease Control. Although entitled “temporary,” the moratorium has no specific end-date and prohibited landlords and constables being able to enforce move-out orders. The city also took the unusual step of issuing a threatening letter to all licensed city constables to abide by the eviction moratorium lest their licenses be in peril. The ruling received national attention, even appearing in the Wall Street Journal in an article entitled Boston’s Eviction Ban Overreach.

Last month, in response to a lawsuit filed by several small landlords in the city, Justice Irene Bagdoian struck down the moratorium as a gross overreach of municipal authority even during a pandemic. In now frequently cited language, she held that “this court perceives great mischief in allowing a municipality or one of its agencies to exceed its power, even for compelling reasons. . . . In this court’s view, such expansion of power by a governmental agency, even for compelling reasons, should be unthinkable in a democratic system of governance.” Since the Legislature has enacted a comprehensive statutory scheme to regulate evictions, the judge reasoned, individual cities cannot opt-out of provisions they feel are harmful to tenants, absent special legislative approval.

Attorneys Mitch Matorin, Jordana Greenman, and Jason Carter are representing the landlords in the consolidated actions challenging the moratorium. As Judge Bagdoian has noted several times from the bench, their legal work in this case has been outstanding. I filed a friend-of-the-court brief in the case on behalf of statewide landlords.

The next step in the case would be to a single justice or full panel of the Appeals Court. This case may well be destined for the state’s highest court, the Supreme Judicial Court. I will continue to keep you posted on developments. Judge Bagdoin’s opinion is posted below.

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Housing Court Justice Irene Bagdoian Rules That Boston Covid-19 Eviction Moratorium Exceeded Public Health Emergency Powers

Updated (Dec. 23, 2021): Judge Denies Stay of Ruling Pending Appeal

In likely one of the most important cases ever heard by the Massachusetts Housing Court, Justice Irene Bagdoian declared that despite the gravity of the Covid-19 pandemic, the new City of Boston eviction moratorium exceeded the emergency statutory powers of the Boston Public Health Commission, and unlawfully interfered with the judicial functions of the Housing Court in overseeing eviction cases.

The moratorium was imposed by then Acting Mayor Kim Janey in August after the U.S. Supreme Court struck down the nationwide eviction moratorium enacted by the Centers for Disease Control. Although entitled “temporary,” the order had no specific end-date and prohibited landlords and constables being able to enforce move-out orders (executions).

The lawsuit challenging the moratorium was filed by Attorneys Jordana Greenman and Mitch Matorin on behalf of Janet Avila, a Mattapan woman whose tenant owed her $29,000 in back rent, and a constable who the city has blocked from executing evictions. Attorney Jason Carter of Hingham filed a separate challenge which was consolidated with the Avila case. The city took the unusual step of issuing a threatening letter to all licensed city constables to abide by the eviction moratorium lest their licenses be in peril.

In striking down the moratorium, Judge Bagdoian issued a comprehensive well-reasoned written opinion, tracking the history and statutory powers of the Boston Public Health Commission which issued the moratorium. In very strong words she ruled, “This court perceives great mischief in allowing a municipality or one of its agencies to exceed its power, even for compelling reasons. . . . In this court’s view, such expansion of power by a governmental agency, even for compelling reasons, should be unthinkable in a democratic system of governance.” Since the Legislature has enacted a comprehensive statutory scheme to regulate evictions, the judge reasoned, individual cities cannot opt-out of provisions they feel are harmful to tenants, absent special legislative approval.

I participated substantially in this case, filing a friend-of-the-court brief, assisting the legal team, and observing the 3 hour oral arguments in Boston. The important case was handled exactly as expected with lengthy well researched briefing and argument on both sides by experienced, smart attorneys. Judge Bagdoian’s ruling was impressive in its breadth of research and analysis, and in my view, absolutely correct on the law. The bottom line is that in our top-down system of state government, any eviction moratorium must be approved by the Legislature, not individual city agencies.

Boston Mayor Michelle Wu has indicated the City will seek a stay of the ruling, according to the Boston Globe.

The Plaintiffs’ attorneys released the following comment: For a year and a half, small landlords have been told that they cannot regain possession of their own property and must continue provide housing to people who either are not paying rent or who are otherwise violating their tenancy agreements. Today, the Court correctly decided that cities and towns have no authority to do this. This decision is important not just for rental property owners in the City of Boston, but also for those in Somerville and Malden, which have similarly tried to impose city-wide eviction moratoriums contrary to state law. The Court’s decision today directly struck down the moratorium issued by the BPHC, but the same reasoning applies in Somerville and Malden, and we look forward to both of those cities promptly taking action to revoke their own moratoriums so that further litigation is not necessary.

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Lawsuit Filed On Behalf of Elderly Mattapan Homeowner Owed $29,000 in Rent, and Local Constable

Updated (Nov. 29, 2021)Housing Court Justice Irene Bagdoian Strikes Down Boston Eviction Moratorium

A new lawsuit challenging the recent City of Boston Eviction Moratorium Order was filed this week in Eastern (Boston) Housing Court. The case will be before Judge Irene Bagdoian. The lawsuit was filed by veteran landlord attorney, Jordana Greenman, Esq. and Mitch Matorin, both of whom worked on the federal and state challenge to the Gov. Baker Eviction Moratorium. I will be assisting the team as needed, and will hopefully be able to file a “friend-of-the-court” brief in support.

After the U.S. Supreme Court struck down the nationwide eviction moratorium imposed by the Centers for Disease Control, Boston Acting Mayor Kim Janey imposed a city-wide residential eviction moratorium effective August 31, 2021, which is in place indefinitely until the Boston Public Health Commission decides to terminate it, in its sole discretion. The order provides that “no landlord and/or owner shall serve or cause the service of notice of levy upon an eviction, or otherwise enforce a residential eviction upon a resident of Boston while this order is in effect.”

The lawsuit was filed on behalf of Janet Avila, a Mattapan woman whose tenant owed her $29,000 in back rent. That eviction was blocked by state and then federal bans that were in place through much of the pandemic. In August, however, the Housing Court issued a final ruling in the case, allowing Avila to evict the tenant. That same day, Acting Mayor Janey announced the moratorium. She’s stuck with this tenant now and faces severe financial hardship. The other plaintiff is David Boudreau, a constable who the city has blocked from executing evictions. The city has also taken the unusual step of issuing a threatening letter to all licensed city constables to abide by the eviction moratorium lest their licenses be in peril.

As outlined in the lawsuit complaint linked below, the Boston Order is a clear violation of the Home Rule Amendment which prohibits local orders in direct conflict with state law (evictions). Boston would need full state legislative approval for such an eviction moratorium which it does not have. The order also appears to exceed the statutory authority of the Public Health Commission (similar to the reasoning of the Supreme Court in striking down the CDC moratorium). Indeed, Acting Mayor Janey made public statements acknowledging the questionable legality of the Order, but decided to enact it anyways during a hotly contested mayoral primary race.

In reality, the Boston Eviction Moratorium is preventing only the most troublesome tenants from being evicted. The vast majority of evictions are being funded and resolved without any forced move-outs with the influx of federal and state rental aid. However, there are many “no-fault” cases filed by property owners who want to move back into rental homes, where leases have expired, or where the landlord-tenant relationship has just soured. The Boston Order would make innocent landlords like Ms. Avila, stuck in those bad situations.

The Housing Court has scheduled an initial hearing in the case for Nov. 9. We expect the City and tenant advocates to mount a vigorous defense to this lawsuit.

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After CDC Moratorium Struck Down by U.S. Supreme Court, Acting Mayor Janey Imposes Local Residential Eviction Moratorium Through Boston Public Health Commission

Update (Oct. 29, 2021): Mattapan Property Owner and Local Constable File Lawsuit Challenging Boston’s Eviction Moratorium

After the U.S. Supreme Court recently struck down the nationwide eviction moratorium imposed by the Centers for Disease Control, President Biden urged local cities and municipalities to impose eviction moratoriums at the local level. Boston Acting Mayor Kim Janey wasted no time in following that call to arms, imposing a city-wide residential eviction moratorium effective August 31, 2021, which is in place indefinitely until the Boston Public Health Commission decides to terminate it, in its sole discretion.

The order (embedded below) provides that “no landlord and/or owner shall serve or cause the service of notice of levy upon an eviction, or otherwise enforce a residential eviction upon a resident of Boston while this order is in effect.” The order does not apply in cases involving “serious violations” of the terms of a tenancy that impair the health and safety of other building residents or immediately adjacent neighbors.”

As the title to this post indicates, my opinion is that this order is completely unlawful on several grounds. It is a clear violation of the Home Rule Amendment which prohibits local orders in direct conflict with state law (evictions). Boston would need full state legislative approval for such an eviction moratorium which it does not have. The order also appears to exceed the statutory authority of the Public Health Commission (similar to the reasoning of the Supreme Court in striking down the CDC moratorium). The order would also run afoul of several constitutional principles (5th Amendment, Contracts Clause, access to courts) which we raised in our previous challenge to the statewide eviction moratorium in federal court.

In discussions with the Eastern (Boston) Housing Court officials, they have indicated they are not bound by the order and that executions for possession (move out orders) will continue to be issued by the Clerk’s Office. Interestingly, the order itself does not specifically apply to the courts, only to a landlord or owner, and only targets the very last step in the eviction process, the levy of execution. The number of forced move outs in Boston remains very small — estimates are that only about 200 cases have reached this final stage during the pandemic. Formal guidance is expected within the next few days. We have had discussions with several landlords about filing a legal challenge to the new moratorium.

As reported in the Boston Globe, Boston housing chief Sheila Dillon said city officials began discussing a local moratorium on Friday after the Supreme Court’s ruling. The city has focused on helping struggling tenants obtain rent relief — some 12,500 households in Boston have received about $72 million in state and local aid, she said — but officials are also worried about an immediate spike in evictions now that the federal ban is gone. And despite the potential for lawsuits challenging the ban, Dillon said, they decided to do what they could now. “We anticipate that there may be some legal challenges to this,” Dillon said. “We felt it was really important to try. We do think evictions are a public health issue.”

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6-3 Ruling Puts End to Nationwide Residential Eviction Moratorium

In a late night “shadow docket” ruling, the U.S. Supreme Court’s conservative majority struck down the controversial nationwide CDC Eviction Moratorium which paused virtually all residential evictions in the country through October 3. The eviction moratorium, first put in place by the Trump administration in July 2020, expired at the end of July 2021. Previously, Justice Kavanaugh indicated that the Court would strike it down, but allowed it to expire on July 31. But with increasing Covid rates over the summer, the Biden administration’s Centers for Disease Control put a new moratorium in place tied to county Covid-19 transmission rates.

The challenger in the lawsuit, the Alabama Association of Realtors, petitioned the Supreme Court for the very rare immediate expedited review. The Court’s majority granted review, and found that the CDC’s limited public health statutory authority was not broad enough to shut down all evictions across the country, ruling that “the CDC has imposed a nationwide moratorium on evictions in reliance on a decades-old statute that authorizes it to implement measures like fumigation and pest extermination. It strains credulity to believe that this statute grants the CDC the sweeping authority that it asserts.”

Unless Congress passes legislation providing for eviction protections (which it unsuccessfully tried to pass earlier in the summer), the Supreme Court’s ruling clears the way for hundreds of thousands of evictions to resume across in the country. Looming overhead also are billions of rental aid funds which have yet to be distributed by federal agencies and state governments. This was noted by the Court’s three liberal dissenting justices, along with the Delta variant surge.

Here in Massachusetts, the Legislature previously enacted a quasi eviction moratorium which pauses all evictions where a tenant has applied for rental aid. Thus, the Supreme Court’s ruling may not have as much of an effect here in the Bay State as other parts of the country. However, we will likely see more move-out orders issued by the Housing Court for cases not involving rental aid applications or where landlords have rejected rental aid funding.

On a personal note, I feel quite vindicated right now. As most of you know, I was one of the first attorneys in the country (along with my co-counsel Jordana Greenman) to challenge an eviction moratorium in federal court. We made many of the same arguments as presented to SCOTUS. However, on the flip side, the federal and state governments have done a disastrous job in distributing the billions of available rental aid funds to tenants and landlords. I think we have done it right here in Massachusetts with Chapter 257 and its pause on evictions where a RAFT application is pending. Congress should pass similar legislation to prevent unnecessary evictions and displacements while ensuring that appropriated rental aid funds get into the hands of property owners and tenants. If Congress doesn’t act, then we will definitely see more displacements which is not what we want during the Delta surge. (This is coming from a pro-landlord attorney).

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CDC Issues New Eviction Moratorium Through October 3, 2021, Pausing Evictions In Areas Of “Substantial” Covid-19 Transmission

Like a zombie apocolypse from the Walking Dead, the eviction moratorium issued by the Centers for Disease Control, which expired on July 31, has been resurrected by the Biden administration. Citing widespread delays in the distribution of federal rental aid relief funds, the influx of the new Delta variant, and concerns of tenant homelessness from progressive Democrats such as Alexandria Ocasio-Cortez and Cori Bush, the CDC yesterday issued a new order pausing all evictions for 60 days in areas of “substantial” Covid-19 transmission. Based on current CDC guidelines, the new order applies to every Massachusetts county except for Franklin and Hampshire. You can check on whether your local area is covered here at the CDC’s Covid Data Tracker. The new CDC order essentially carries over the protections and requirements from the previous order. A CDC hardship declaration form submitted by a tenant under the previous order will apply under the new order.

What does this mean here in Massachusetts? In all non-payment cases where a tenant has filed a CDC hardship declaration and qualifies for protection, they should not be forcibly moved out. Cases can still be moved forward and resolved by way of mediated agreements. In “no-fault” cases, some judges have applied the moratorium where rent is also sought; some have declined. Like the previous order, the moratorium does not apply in cases involving criminal activity. Also, Massachusetts has its own limited moratorium on evictions (Chapter 257 of the Acts of 2020) where a tenant has a pending application for rental aid. The Housing Court is pushing that landlords accept rental aid to pay off arrearage balances as well as future rent. Housing judges are also holding hearings on whether tenants legitimately qualify for CDC protection.

Property owners were successful in getting a federal court of appeals to strike down the previous CDC eviction moratorium. It went up to the Supreme Court where Justice Brett Kavanaugh signaled the order was on very shaky legal ground, although the Court declined to strike it down right before it expired on July 31. Property owners will have to start over and file a new lawsuit challenging the new order. By the time it works its way through the courts once again, it will likely have expired by October 3. Progressive Democrats, including Cori Bush and AOC, camped out for days at the Capitol in protest over the expiration of the original moratorium. Readers of this Blog may remember that yours truly along with Jordana Greenman, Esq. were successful in using a federal challenge to the toughest-in-the-nation Massachusetts eviction moratorium to persuade Gov. Baker to let it expire a year ago in October.

As always, I’ll keep you updated as to any developments with the moratorium and eviction related legal issues.

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Massachusetts Also Extends Certain Eviction Protections

The Centers for Disease Control announced today that its CDC Eviction Moratorium will be extended one final time through July 31, 2021. The CDC Director Dr. Rochelle Walensky issued the following statement: “CDC Director Dr. Rochelle Walensky has signed an extension to the eviction moratorium further preventing the eviction of tenants who are unable to make rental payments. The moratorium that was scheduled to expire on June 30, 2021 is now extended through July 31, 2021 and this is intended to be the final extension of the moratorium. The COVID-19 pandemic has presented a historic threat to the nation’s public health. Keeping people in their homes and out of crowded or congregate settings — like homeless shelters — by preventing evictions is a key step in helping to stop the spread of COVID-19.”

The CDC Eviction Moratorium will continue to apply in Massachusetts absent a court order overruling it (which is highly unlikely). The moratorium, which allows for new and existing eviction cases to be filed and moved forward, but stops all forced-move outs, applies to all non-payment cases and to some “no-fault” cases.

Rental Assistance Protections and Notice to Quit Measures Extended

Earlier in the month, Gov. Baker signed a bill (now codified as Chapter 20 of the Acts of 2021) extending certain Covid-19 related eviction protections for tenants. Among the measures extended was Chapter 257 of the Acts of 2020, which imposes a temporary stay on eviction cases and move-out orders where tenants have applied for short term emergency rental assistance. Millions of dollars in rental aid have been flowing into Massachusetts, and both landlords and tenants alike have been taking advantage of the influx of federal funds to pay down rent arrearages and secure new housing. The stay on cases where a RAFT application is pending is extended through April 1, 2022. The new bill also extended the new rules governing what language must accompany notices to quit. Notices to quit for nonpayment must continue to show language about renter rights, through January 1, 2023. Notices to quit for nonpayment must continue to be copied to the state, through January 1, 2023.

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First Reported Decision In Massachusetts On Private Nuisance and Para-Hang Gliding

Recently, I filed a very interesting and novel case involving private nuisance and paragliders which resulted in a favorable injunction ruling for my client. My clients have a beautiful home on Peaked Cliff in the Sagamore Highlands area of Plymouth/Bourne, overlooking Cape Cod Bay providing breathtaking views of ocean and cliffs. The home has a large back deck overlooking the ocean which the family uses frequently to enjoy the views and ocean.

With its high thermal wind activity, the area has become a hotbed for hang-gliders and para-gliders. Unfortunately, the gliders, most of whom are members of the New England Paragliding and Hang Gliding Club, have become increasingly reckless and belligerent. They have flown within feet of my clients’ home yelling and screaming obscenities and giving obscene finger gestures. On several instances, the gliders have crash landed on the grounds, and at least one glider crashed into the roof. One glider almost died when he crashed directly on the cliff, necessitating a complicated rescue operation. My clients daughters have complained that gliders have taken photographs of them through their bedroom windows and while lounging on the deck.

After many complaints and the issuance of no-trespass notices, the Club attempted to impose a “No-Fly” zone over my client’s home. However, it wasn’t enforced and the gliders kept harassing my clients, often starting flights at 6AM running through sunset. My client had enough, and asked me to file a lawsuit for private nuisance and trespass in Brockton Superior Court. We asked the Court to issue an injunction imposing a 150 foot no-fly zone around my client’s property.

A private nuisance occurs when someone “creates, permits or maintains a condition or activity on property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another.” This is the first case that I am aware of in Massachusetts whether paragliding and hang-gliding may rise to the level of private nuisance. Judge Thomas F. McGuire, Jr. held an in-person evidentiary hearing, which was actually my first in-person hearing since Covid-19 hit. I put together a video montage of photographs and video footage of the offending glider activity and showed that to the Judge. I also cross-examined a representative of the Club who conceded that their no-fly zone would not substantially impede glider flights in the area.

The Court issued a well-reasoned written opinion (embedded below) granting an injunction prohibiting all paraglider and hang-glider flights over my client’s property and extending thirty feet outside their property line. Notably, the judge found that the Club itself had documented the gliders’ problematic activity in their internal meeting minutes (which we found online). The judge ruled that the gliding activity rose to the level of being a private nuisance, and that my clients would suffer irreparable harm if they were not enjoined from flying over and near their house. The judge imposed a 30 foot no-fly zone around my client’s property. We are hopeful that this will keep the peace, but the order is enforceable with contempt powers, as the judge made clear in his ruling.

As I said before, this ruling is notable because it’s the first reported decision involving gliders and private nuisance in Massachusetts. With the proliferation of drones and other low flying aircraft and devices, this ruling should provide some much needed legal precedent and guidance in this other situations where property rights conflict with airspace rights. The case reference is Kaplan v. New England Paragliding and Hang Gliding Club, et al., Plymouth Superior Court CA 2183CV0331.

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The Centers for Disease Control has just extended the national eviction moratorium through the end of June. “The COVID-19 pandemic has presented a historic threat to the nation’s public health,” CDC director Dr. Rochelle Walensky said in a statement. “Keeping people in their homes and out of crowded or congregate settings — like homeless shelters — by preventing evictions is a key step in helping to stop the spread of COVID-19.” The new order, entitled “CDC Temporary Halt In Residential Evictions to Prevent the Further Spread of Covid-19” is embedded below.

The eviction ban was scheduled to expire on March 31. While there have been several court rulings in other states overturning the eviction ban, it will remain in place here in Massachusetts in the absence of an adverse court ruling. The moratorium applies primarily to non-payment cases, however, at least one Housing Court judge has applied it to “no fault” cases where the landlord has also made a claim for unpaid rent. Notices to quit and new eviction cases can still be filed and advanced through the court system, however, the CDC moratorium will prevent executions, or move-out orders, to be issued against qualifying tenants.

The CDC eviction moratorium requires that tenants take an affirmative step to qualify for protection. Tenants must send their landlord a CDC-approved affidavit in which they certify under oath that they are:

  • Unable to pay rent due to a coronavirus-related job loss or income reduction, or qualified fora direct stimulus payment under the CARES Act or expect to earn less than $99,000, or $198,000 if filing a joint tax return. 
  • Have made best efforts to obtain all available government assistance to cover rent;
  • Is unable to pay full rent due to a substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out of pocket medical expenses;
  • Is using best efforts to make timely partial payments of rent that are as close to the full payment as the individual’s circumstances may permit, taking into account other non discretionary expenses; and
  • Eviction would likely render the tenant homeless or force him/her to move into and live in close quarters in a new congregate or shared living setting because the tenant has no other available housing options. 

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One of the First Reported Court Rulings Addressing Whether Business Can Be Legally Excused From Paying Rent While Subject to Government Covid-19 Shutdown

As the Boston Globe reported this week, Suffolk Superior Court Business Litigation Session Judge Kenneth Salinger ruled that a Caffe Nero coffee shop on Newbury Street was legally excused from paying rent for the nearly three months last spring when indoor dining was halted under state orders to combat the spread of COVID-19. The ruling could give leverage to struggling restaurants dealing with lost business and unpaid rent bills. The 12-page court ruling is embedded below.

UMNV 205-207 Newbury LLC (UrbanMeritage) v. Caffe Nero Americas, Inc., Suffolk Superior Court CA 2084CV01493-BLS2

The dispute between Caffe Nero and UrbanMeritage, a prominent Back Bay landlord that owns a number of storefronts on Newbury Street, began not long after Governor Charlie Baker ordered indoor dining closed on March 24, 2020 — a massive blow for a European-style cafe whose business model hinges on people lingering over lattes and croissants. Caffe Nero promptly asked for a break on its roughly $13,000-a-month rent, but UrbanMeritage said no, and issued a default notice for nonpayment. By June, UrbanMeritage had launched eviction proceedings, ultimately filing a lawsuit seeking more than $300,000 in back rent, damages, and legal fees.

Frustration of Purpose Doctrine

Applying the doctrine of “frustration of purpose,” Judge Salinger ruled that rent payment is excused when performance becomes impossible through no fault of either party, such as a natural disaster or pandemic. Since Caffe Nero’s lease only allowed for restaurant use (and no other uses), and Gov. Baker’s Covid-19 shutdown order of indoor dining during the early days of the pandemic prevented that use, Judge Salinger found that the doctrine of frustration of purpose applied in this case.

Force Majeure Clause

Judge Salinger also side-stepped the parties’ “force majeure” lease clause, which could have been read to negate the frustration of purpose defense used by Caffe Nero. A force majeure provision is a common clause commercial leases which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic, sudden legal changes or an event described by the legal term Act of God, prevents one or both parties from fulfilling their obligations under the contract. The force majeure provision in the Caffe Nero lease, however, specifically stated that the payment of rent due to financial inability cannot be a reason to invoke the clause. In perhaps questionable reasoning, Judge Salinger ruled that “the force majeure provision addresses the risk that performance may become impossible but does not address the distinct risk that the performance could still be possible even while [the] main purpose of the Lease is frustrated by events not in the parties’ control.”

Take-Aways

I have several Covid-19 related lawsuits pending where businesses and restaurants could not pay their rent during the pandemic, and I’ve pled the same defense as Caffe Nero did in this case. (I don’t yet have a formal ruling in my cases). I think it’s inevitable that we will see more of the same rulings by judges who are sympathetic to businesses who were shut down completely due to Gov. Baker’s orders. Certainly, this ruling will cause landlords to reevaluate whether they will be able to collect all unpaid rent from a Covid-impacted business. Of course, the usual considerations will also apply — financial ability to pay, assets, timing of payments, etc. We will see….as always, if you are dealing with a commercial lease dispute or know someone who is, feel free to contact me at [email protected].

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Extension of Eviction and Foreclosure Moratorium Part of Flurry of Executive Orders Signed by Biden In First 48 Hours Of Presidency

On January 20, 2021, President Joseph Biden signed an executive order mandating that the Centers for Disease Control and Prevention (CDC) extend the current CDC federal eviction moratorium until March 31, 2021. While the extension is not yet published in the Federal Register, Dr. Rochelle Walensky, the new director of the CDC, has already agreed to implement the eviction moratorium extension. As is the practice under the current moratorium, a tenant must provide the necessary CDC declaration to the landlord and/or court to secure protection of the moratorium. 

While signing the new Executive Order, President Biden also stated that he wants to work with Congress to extend the moratorium even further through September 2021. So we will be monitoring how that plays out.

The Executive Order similarly calls on federal housing agencies such as the Federal Housing Finance Authority (FHFA), the Federal Housing Authority (FHA), and the Department of Housing and Urban Development (HUD) to extend their existing foreclosure and eviction moratoriums through March 31, 2021.

While the Biden administration has presented its American Rescue Plan (ARP), which includes an additional $25 billion in rent and utility aid to households in need, much of the rental and utility relief set forth in the ARP requires approval from Congress, similar to the year-end pandemic relief bill that was signed into law on December 27, 2020.

Temporary Eviction Moratorium for Tenants Applying for Short Term Emergency Rental Assistance (RAFT)

As I wrote about earlier, at the very end of 2020, Gov. Baker signed into law Chapter Chapter 257 of the Acts of 2020 which provides for a mandatory pause on any eviction where a tenant has applied for rental assistance. The Housing Court has issues a new Standing Order which provides as follows:

  1. If the parties do not agree to a continuance, a party may request a continuance by motion.  Notwithstanding its equitable authority, pursuant to Section 2(b) of St. 2020, c. 257, the court “shall grant a continuance for a period as the court may deem just and reasonable if” the court determines that the criteria enumerated in the statute are met.
  2. Pursuant to Section 2(b) of St. 2020, c. 257, no judgment may enter, nor may any execution issue, in a summary process action for nonpayment of rent if there is a pending application for rental assistance.  While parties may enter into an agreement for judgment in such an action, the agreement shall include language that entry of judgment and enforcement of the agreement is subject to St. 2020, c. 257 and the CDC Order.

We are seeing a big increase in tenants applying for, and being accepted for, RAFT aid, which is now increased to a maximum of $10,000, plus stipends available to cover future rent. So this is a good thing.

My general advice to landlords now is that if your tenant owes $10,000 or less, you really should seriously consider going the RAFT route, otherwise you aren’t going to get your tenant out until the summer at the earliest, and you’ll be owed even more in unpaid rent. If you are owed over $10,000, it’s a different calculation. You may want to consider offering a move-out agreement with rent waiver and/or cash for keys, in order to cut your losses. Otherwise, prepare for a long wait for your trial date. You can theoretically file a motion for rent escrow but you’ll have to wait for your hearing date, etc.

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Rental Property Owners Feared Disruption of Rental Property Market by Allowing Tenants Right to Purchase For-Sale Income Properties

In the wee morning hours of the last legislative session at 4AM, Massachusetts legislators passed House Bill H.B.5250 “An Act enabling partnerships for growth,” which included a controversial provision giving tenants the right to purchase (also knowns as a right of first refusal) rental property when owners put it up for sale. It also included a provision allowing for tenant eviction records to be sealed from public view. Publicly available records have been part of landlords’ application screening tools for many years now. After intense lobbying by the real estate industry, Gov. Baker vetoed both measures.

The Tenant Right to Purchase (TOPA) provision would have given tenants a right of first refusal to purchase for-sale rental and multi-family properties throughout the state, with some limited exceptions. Such a measure has been a disaster in Washington DC with a cottage industry created to essentially shakedown landlords for money and hold up sales. In his veto proclamation, Gov. Baker stated that “these requirements would significantly delay the sale of multifamily homes throughout the Commonwealth, and potentially chill the production of new housing when we desperately need to produce more. Because a viable exit strategy often is critical to a developer’s willingness to undertake a project, I am concerned that making multifamily sales more unpredictable will result in less investment and construction of fewer new rental units.”

The Eviction Sealing measure would have given tenants the ability to seal their eviction records from public view. The problem with this measure is it was too broad, applying to both no-fault cases as well as certain “for cause” cases which may have involved situations with criminal or drug activity or the endangerment of other tenants. As Gov. Baker stated in his veto proclamation, keeping this information secret would cause unnecessary risks. Further, court administrators told the Governor that the measure would cause significant administrative burden, especially now that the courts are dealing with the Covid-19 pandemic and the need to process cases remotely for the foreseeable future.

Now that the legislative session has ended, the Legislature would have to re-file and pass these bills again in the upcoming session, which again would be met with the Governor’s veto. I’m not sure they can obtain a veto-proof majority. I’ll keep you updated with any developments.

Along with these vetoes, Gov. Baker did enact his long-sought Housing Choice legislation, which I will update in a future post. This bill contains major changes to the state Zoning Code, Chapter 40A.


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Changes Include New Attestation Form For Landlords Regarding Applicability of CDC Eviction Moratorium and CARES Act, Submission to State Database, Moratorium of Eviction Cases Where Tenant Applies for RAFT Assistance

While the Massachusetts Legislature was busy passing a massive year-end budget and Covid-19 relief bill, included in the new measure were major changes to notices to quit for residential non-payment of rent evictions, as well as an eviction moratorium in cases where the tenant applies for short term rental assistance funding. Gov. Baker signed the bill into law as Chapter 257 of the Acts of 2020. This new law is in effect until the termination of the Covid-19 State of Emergency (whenever that may be).

New Attestation Form for Notices to Quit for Nonpayment of Rent

Any landlord serving a tenant with a notice to quit for non-payment of rent must now include a state-required form with various certifications, including:

  • Whether the tenant has submitted a CDC Eviction Moratorium Hardship Declaration Form;
  • Whether the leased premises is covered as a “dwelling unit” under the federal CARES Act. (If the unit is covered under the CARES Act, then a 30 day notice is most likely required).
  • Whether there is an existing agreement between the parties concerning the repayment of rent.

You can download the new Massachusetts Notice to Quit Attestation Form here. The state has also created a special webpage and an Instruction Sheet to help landlords comply. Housing Courts will not accept summary process cases for filing without the new attestation form. Screenshot of the new Attestation Form is shown below.

The new Attestation Form also provides tenants with a list of available rental assistance programs, information on the federal CDC eviction moratorium, and court rules on evictions. See below.

Required Upload of Notice to Quit to Executive Office of Housing and Economic Development

The new law also requires that any notice to quit for non-payment of rent covered by the new law be uploaded electronically to the state Executive Office of Housing and Economic Development. The states has created a new Portal to enable these uploads.

Temporary Eviction Moratorium for Tenants Applying for Short Term Emergency Rental Assistance

The new law also authorizes housing court judges to impose a temporary stay or moratorium on eviction cases and move-out orders where tenants have applied for short term emergency rental assistance like RAFT. The law is drafted in the mandatory that judges “shall” grant a continuance, a stay of execution, or refrain from entering judgment, “for a period as the court may deem just and reasonable” if the tenant is financially impacted by Covid-19 and has applied for any form of federal, state, or local rental assistance. With the influx of new applications due to the pandemic and expiration of the original eviction moratorium, rental assistance applications have been plagued with substantial delays, as the Boston Globe has reported, with reports of applications pending many months. As such, this provision will operate to significantly delay pending evictions where tenants have simply applied for rental assistance. Also I should note that under the RAFT program, if a landlord accept the rental assistance funds, they must agree to forbear on any eviction for up to 6 months (or longer if kids are present).

Problems and Concerns

These new provisions came as somewhat of a surprise to the rental property industry and indeed the court system, as I received some last minute guidance from a clerk-magistrate just yesterday. The new Attestation Form is quite onerous and will be very difficult for small, unrepresented landlords to complete accurately. It also arguably makes landlords provide legal advice to tenants which could be against the landlord’s interests, a potential violation of the First Amendment, as Judge Mark Wolf ruled in the legal challenge to the Eviction Moratorium (in which I was lead counsel).

In the Attestation Form, it basically makes all landlords provide a defense against their own case by advising tenants about the CDC federal moratorium and telling them they should provide a CDC hardship form to a tenant if they “believe” the tenant is eligible for its protections. How is a landlord suppose to make a determination whether a tenant is eligible for financial hardship without having access to the tenant’s personal financial information?

The Attestation Form then requires that landlords make a legal determination as to whether the leased premises qualifies as a “covered dwelling” under the CARES Act. See below.

As you can see, the legal determination of applicability under the CARES Act is very complex, necessitates research of whether a mortgage is federally backed, and typically requires the assistance of an attorney. Landlord attorneys have been struggling with making these determinations since the CARES Act was first passed.

Next, the new Attestation Form requires landlords to make another legal determination — whether the notice is in compliance with the CARES Act, which requires at least a 30 day notice (as opposed to the standard 14 day notice for non-payment under Mass. law). See below. Again, landlords are forced to read and interpret a section of a federal statute when they’re not a lawyer.  And why should landlords have to certify that it complies – it either does comply, or it doesn’t comply — that’s a judge’s job. 

Well, there’s a lot to unpack with these new requirements. It just reinforces the sage advice that landlords should always have an experienced landlord-tenant attorney representing them in all eviction cases. There are now so many new rules and traps for the unwary. As always, please contact me with any questions via email: [email protected] or phone at 508-620-5352.

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Local Real Estate Agents Recount The Year of the Pandemic, and Offer Some Hope (and Caution) for 2021

The year 2020 started out like most strong real estate years in recent Massachusetts history — very high buyer demand combined with low seller inventory, along with historically low interest rates, equated to a bustling busy real estate market. January and February were solid months even for winter. As we entered late February, however, we stared to hear about a concerning new virus originating from Wuhan, China, spreading quickly to Europe. They called it “Coronavirus” or “Covid-19,” names that would later be part of our permanent lexicon. Flashback to March, and the virus had quickly reached the United States. The country soon shut down. Offices and schools closed. Governors across the country issued “stay at home” and “social distancing” orders. Eviction and foreclosure moratoriums were enacted, including the strictest one here in the Bay State. Real estate attorneys here in Massachusetts sprung into action to help pass the Remote Notarization Act, which helped keep closings moving forward. And despite the pandemic, the real estate industry reacted and adapted quickly, with realtors and attorneys relying on virtual tours, Covid compliant open houses, lots of Zoom calls, and “drive-through” closings.

The year is now almost over. From speaking to all my real estate friends, agents, lawyers and lenders, the general consensus is that the Massachusetts real industry averted major disaster. Indeed, some agents reported a record year despite all the challenges. But I wanted to hear directly from those on the front lines. So naturally, I went to Facebook! I asked all my real estate friends several questions about how 2020 went. I told them to give me three words to describe 2020. (I didn’t censor!). How was your local market during Covid? How did you handle all the changes brought on by Covid? What are your predictions for the real estate market in 2021? Do you see any Covid related changes to business remaining permanent going forward?

Here is what they said:

Craig Lake (Compass Boston)

Shockingly 2020 was my best year yet. I didn’t experience the mass exodus to the burbs, but did see some upsizing within Boston. The Spring was still HOT, HOT, HOT! While the Fall was definitely more mellow. Rental market definitely went majorly downhill – with major bargains to be had around the city and a ton of inventory sitting empty. I think the condo market in Boston will bounce back this Spring with vaccines on the way. The rental market will likely be a little slower to recover, but hopefully by the Fall. There have been some covid deals in the City but I don’t think that will last long as work will resume after the vaccines are widespread. Most of all – I cannot wait to not have to wear masks on showings anymore and have normal Open Houses again.

Katherine Waters-Clark (Compass Arlington).

Transformational, Tribe-forming, Tragic, True Grit. My market was on fire, Covid did not slow it down and I was out there the entire time. I was scared but had to lead my clients. Honestly had to put my Mom hat on and say “listen you guys, my job is to keep you safe.” I had to turn on a dime daily, learning new ways of marketing, listing, open houses, staging remotely, safely working with buyers. Talking through a mask, what is that? It was an exhausting, rocky road shit show but ultimately I have many overjoyed (really) clients who bought and/or sold or both! My company, Compass, got me through it with daily innovations, mindset, weekly office meetings, so much sharing amoung agents, so much generosity, we really really were all in this collectively together. It was a very special time, in that way. Predictions for 2021: My roster for 2021 is fuller than it’s ever been in 15 years. It’s going to be fire. Buckle up. Moving forward, there WILL be more virtual meetings, 3d tours will be here to stay, paperless transactions here to stay, mobile offices here to stay. It will be a while until we can all gather at a ball game, an event, a concert. But once we can, we will all be having hugfests and going crazy, it will be so great to be together again!

Charlene Frary (Realty Executives Boston West)

My three words, wearing my real estate hat, to describe local 2020 real estate are “surprisingly not awful.” In March and April I really thought the pandemic might be the thing that finally slowed the “feeding frenzy” and in fact the market gained momentum with 10% value appreciation and less inventory. And because of this, and the fact that values have been rising solidly for years, I’m predicting a similar volume 2021 with 5% minimum appreciation. I think most homeowners in financial trouble will be able to sell and pay off debt thanks to recent years of value increases – not a pretty picture, and very sad and unfair… but less ugly than foreclosure for those homeowners and less impactful than a foreclosure wave. That’s here -may be totally different in other parts of the country.

Debbie Booras (Keller Williams Northwest)

Whoa…wow…wonderful. 2021 late spring early summer will shift to a buyers market as the inventory withheld will saturate the market quickly. Sellers will still expect a premium and the shift will begin.

Nick Aalerud (Multi-family development and investment)

Learned: How to lead in crisis. Making tough decisions, slashing expenses. Created a “bloodline” reporting system so we knew exactly how much cash we could operate with rolling 13 weeks out. Modified our buybox. Focused more on TEAM and PURPOSE than on making up for lost deals. Liquidated nearly 100% of rental portfolio to prepare for what is coming 2021: Expect a commercial capital collapse at the regional and perhaps state level, as 10 yr loans come due and there’s no occupancy or cash flow to support refis. Commercial (office, hospitality, retail, restaurant) will begin to feel the pain (even beyond what they are feeling now) in Q3, mostly Q4. Residential: After forbearances are over, based on current unemployment and economic data, people won’t be able to afford their mortgages, despite the fact of “COVID MODS” being offered. They’ll be forced to sell. No real change in 2021 on house values except that as these waves hit the market, the demand will finally start to be absorbed. 2022 is another story… As the third, 4th and 5th wave start to hit, I’m gambling that we are back in short sale territory. And we have amped up our short sale business to make sure we are ready, for the commercial defaults, and then the overwhelming residential ones we see coming…

Baris Berk (United Brokers)

Currently, there is lack of inventory and even after they lift the moratorium it will take some time and process for foreclosures to hit and it might not even hit by the end of next year or beginning of 2022 so due to some pent up demand for sellers as well, 2021 I do not see any market crash and in contrary we might even see 5% increase in the values.I think 2022 will be more murky waters

Heidi Zizza (mdm Realty Framingham)

Oh my not sure 3 words will cut it! Stressful, Relaxing, Crazy! It went in phases. I think 2021 will be just as busy but I do think some of the changes especially to brick and mortar will stay! I miss getting together but zoom has made it so you can be together anywhere.

Jonathan White (Managing Broker Vylla)

I think the biggest change that we’ll see is when the eviction/foreclosure moratorium is finally lifted. That will very likely result in the highest level of foreclosures that we’ve seen in at least five years. We’ll have to see if that is the catalyst to finally shift this crazy market.

Thank you to all the agents who participated in this article! May all of you have a very happy, healthy and prosperous 2021!

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$25 Billion In Rental Assistance Approved; Biden Administration Expected to Extend CDC Eviction Moratorium Further Once In Office

After sitting on the Covid-19 Stimulus Package passed by Congress, President Trump finally signed the measure on Sunday night, extending the federal CDC eviction moratorium through January 31, 2021 and making $25 Billion in rental relief funds available nationwide. The moratorium was set to expire on December 31.

Under guidance from the Trump administration, eviction notices and cases can still be filed and moved forward in court, but only move-out orders for non-payment cases are suspended under the moratorium. Under newer Housing Court rules, landlords must file a special CDC moratorium affidavit with all new cases attesting whether they have received a CDC hardship affidavit from a tenant.

The rental relief assistance funding should be welcome news for both Massachusetts landlords and tenants struggling with unpaid rent. Massachusetts is expected to receive between $250 to $500 Million in new rental assistance funding. That is double what is currently available. To help those struggling, the Baker administration has created a new website with links to various relief programs — Covid-19 Getting Help with Housing Costs.

As for the future of the federal eviction moratorium once the Biden administration takes office, based on statements made on the campaign trail, I would expect that they will extend the moratorium initially anywhere from 60-90 days. New York state just passed a very strict new moratorium for 60 days. Tenant advocates and some inner city legislators have been clamoring for another moratorium here in Massachusetts. Gov. Baker has repeatedly signaled that he would not sign such a measure, especially with rental relief funding in place.

As always, I’ll keep you informed as to future developments. Any questions? Email me at [email protected].

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Richard Vetstein, Esq. and Jordana Greenman, Esq., the two attorneys who successfully challenged the Massachusetts Eviction Moratorium in federal court, led this Zoom webinar discussing the re-opening of the Housing Court next week after the Eviction Moratorium expires on Oct. 17. In anticipation of its re-opening during the Covid-19 pandemic and with a major backlog in pending cases, the Housing Court has issued major changes to its court rules, including a new two-Tiered case management system, virtual (Zoom) hearings, and application of the CDC Eviction Moratorium. Attorneys Vetstein and Greenman give an overview of the new procedures, talk about what they think Housing Court practice will look like going forward, and then take questions and answers. This is a can’t miss webinar from two highly experienced landlord-tenant attorneys with inside knowledge of the inner workings of the Housing Court. If you are a rental property owner affected by the Moratorium and desire to re-start a pending case or file a new case, this is for you. 

If you cannot view the embedded video, please click this LINK.

For more information about a pending or new eviction in Massachusetts, please contact Richard Vetstein at [email protected].

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