Massachusetts Real Estate Law

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

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. 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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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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$171 Million Funding Allocated for RAFT and HomeBase Rental Assistance, Legal Services, Mediation and Tenant Outreach

Governor Baker officially announced today that he will not extend the Massachusetts Eviction Moratorium, allowing the Housing Courts to start hearing eviction cases beginning on October 19. With this announcement came a major new program, called the Eviction Diversion Initiative, put together by the Baker administration, court leaders, and landlord/tenant groups. I don’t want to gloat too much here, but we have heard that our federal lawsuit challenging the Moratorium and our continued advocacy for housing providers played no small role in this decision.

New Funding For RAFT, HomeBase, Other Programs

The Baker Administration is making a $171 million total commitment this fiscal year, with $112 million of new funding to support new and expanded housing stability programs during the remainder of the fiscal year, including: 

  • $100 million commitment this fiscal year to expand the capacity of the Residential Assistance for Families in Transition (RAFT) program to provide relief to renters and landlords impacted by COVID-19;
  • $48.7 million to HomeBASE and other rapid rehousing programs for when tenants are evicted and are at risk of homelessness;
  • $12.3 million to provide tenants and landlords with access to legal representation and related services prior to and during the eviction process, as well as community mediation to help tenants and landlords resolve cases outside of court;
  • $6.5 million for Housing Consumer Education Centers (HCECs), the “front door” for those facing a housing emergency; and
  • $3.8 million for the Tenancy Preservation Program (TPP), to provide case management support and to act as a neutral party to help tenants and landlords come to agreement.

New investments will expand the capacity of the RAFT program and increase the maximum benefit available through RAFT from $4,000 to $10,000 per household, with a goal of helping more families stabilize their housing for six months, or until the end of June if there are school-age children in the household, on their path to recovery.

The Administration is also updating the RAFT program to improve turnaround time on applications, while maintaining program integrity, by allowing landlords who own fewer than 20 units to apply directly for RAFT and ERMA, with consent from tenants.

New Housing Court Procedures

Last week, as I wrote about here, the Housing Court announced a slew of new procedural changes to handle cases post-Moratorium. Under the new rules, cases will be processed under a new two-Tiered system with older cases getting priority, an even stronger push towards mediation, and the vast majority of cases heard through Zoom video-conferencing.

I will be holding a free Zoom webinar on the new Housing Court rules with Jordana Greenman, Esq. on Thursday, October 15 at 12:30pm. Zoom link here: https://us02web.zoom.us/j/2622828798.

CDC Moratorium

When the state moratorium expires, a moratorium established by the Center for Disease Prevention and Control (CDC) will become effective through Dec. 31. The CDC moratorium will effectively prevent evictions for non-payment for qualified tenants who submit a written declaration to their landlord. Gov. Baker’s press release states that “courts will accept filings and process cases, and may enter judgments but will not issue an order of execution (the court order that allows a landlord to evict a tenant) until after the expiration of the CDC order (Dec. 31, 2020).” The new Housing Court rules address cases where the CDC Moratorium may apply.

The Baker administration has created a new FAQ for new Eviction Diversion Initiative here.

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Housing Court Issues Major Change to Procedures To Tackle Backlog of Cases, and Address Covid-19 Safety Concerns

With the Massachusetts Eviction Moratorium set to expire on October 17, and barring an extension from Gov. Baker or the passage of a new moratorium, the Housing Court is preparing for arguably the most challenging period in its history. Chief Justice Timothy Sullivan has just released a set of new procedural rules to manage all pending and future cases in the “new normal” of a Covid-19 world. The new rules dramatically change how all cases will be heard in the Housing Courts, with the vast majority of hearings being conducted via video-conferencing technology instead of in-person. Facing a backlog of some 20,000 pending eviction cases and an unknown number to be filed once the Moratorium expires, the goals of these new procedures are to: (a) start moving pending eviction cases forward, (b) establish new procedures for the filing and case management of new cases, (c) encourage mediation and private agreements as much as possible to decrease the backlog of cases, and (d) above all, keep litigants and court personnel safe. The new rules also contain a new affidavit requirement under the federal eviction moratorium issued by the Centers for Disease Control. The new rules can be found here: Housing Court Standing Order 6-20: Temporary modifications to court operations based on the coronavirus (COVID-19) pandemic and the expiration of chapter 65 of the acts of 2020 (eviction moratorium).

Housing Court Physically Open for Business, But Most Proceedings Will Be Virtual

The Housing Court will be physically open with limited staff and judges, but the preference will be for cases to be heard virtually. The court is presently using the Zoom platform quite effectively, and I assume it will continue to do so. For self-represented (pro se) parties who may have limited access to technology, the court will assist that person with the video-conferencing technology or offer a “suitable alternative.”

The old “call of the list” on Thursday morning hearing days with hundreds of people packed in hallways and courtrooms will now be a relic of the past, and is suspended indefinitely. Instead, going forward, the clerk’s office will schedule cases and hearings directly with the parties or their lawyers, with the vast majority being on Zoom. This includes mediations. Lawyers are required to continue to E-File new cases and all pleadings.

Rich’s Practice Pointer: However it plays out, it’s a safe bet to say that evicting anyone in Massachusetts going forward could take anywhere from 6-18 months. This makes mediation and private settlement agreements all the more attractive and cost effective for landlords.

Procedures for Pending Summary Process (Eviction) Cases: Two Tiered System

Pending cases will be scheduled for hearing in the order in which they were filed, i.e, earlier filed cases get priority. All tenant motions to vacate a dismissal or default for failure to appear between March 1, 2020 and the expiration of the Moratorium (Oct. 17, 2020) will be automatically granted by the court.

The rules established a new two-tiered system to move cases forward. In Tier I, a housing specialist (who is typically a trained mediator) will schedule the first court event by video conference or telephone call. The purpose of the first event will be to determine the status of the case, whether the CDC federal moratorium applies to the tenant, attempt to mediate/resolve the case, and explore the availability of any housing assistance. If the case does not settle, the housing specialists and the clerk will hold a case management conference to determine the next steps in the case and/or schedule the case for trial. For Tier 2, the clerk will schedule the next court event by written notice. While the rule provides that trials should be held as soon as practical but no sooner than 14 days after the first tier event, I would have to assume that getting a trial date will be several months away, given the huge backlog of cases caused by the Moratorium. The new rules provide that trials will be held by video-conference, with a “small sub-set being held in person,” as determined by the Clerk Magistrate and First Justice.

Procedure for New Summary Process (Eviction) Cases

In a major change from existing practice, new cases will not be automatically scheduled for a trial on the typical Thursday morning schedule. (The rules provide that lawyers should now put “TDB by court” in the Summary Process Complaint where the the trial date would typically be listed.) Instead, the clerk’s office will send out a notice of the first event, but the rules do not say when that will actually be. The clerk will also send out an information sheet with a resources available to assist the parties in resolving the case. Cases will then proceed based on the two-tiered system outlined above.

CDC Eviction Moratorium Affidavit Requirement

The rules provide that all new eviction cases for non-payment of rent must be accompanied by a new affidavit indicating whether the landlord has received a hardship declaration under the CDC Eviction Moratorium. For pending eviction cases, the plaintiff must file the CDC affidavit before the first tier court event. The court is coming up with the new affidavit form which will be available on the court website. I believe that this new requirement will be controversial because it may prejudice landlords since the burden of claiming a Covid-19 related hardship remains with the tenant under the CDC Order.

Executions (Move-Out Orders)

For those housing providers holding an execution for possession (move-out order) which has now expired, they may file a written request or motion for a new execution to issue, but they must file the CDC affidavit with it. These new executions will be issued administratively without a hearing. I would expect that tenants will be filing numerous motions to stay execution based on the Covid-19 pandemic, so we will have to see how the judges handle these.

Emergency and Injunction Proceedings

As it has done throughout the pandemic and Eviction Moratorium, the court will continue scheduling all emergency matters including those for injunctive relief (lockouts, condemnation, no heat, no water/utilties, access) or a motion for stay of execution. These proceedings will be scheduled virtually to the extent possible.

Jury Trials

All parties have a right to a jury trial in the Housing Court. Indeed, this is often used as a weapon by tenant attorneys to delay cases. The new rules provide that in-person jury trials with 6 jurors may resume on October 23, 2020, but I don’t see how this is achievable. I think getting a jury trial date will be many months down the road for most cases.

My Thoughts

Like any major change to court procedures, it will take some time for litigants and court personnel to adapt to these new rules. Over the course of the pandemic, I have participated in several Zoom hearings as well as mediations in the Housing Court, and they have worked out just fine. For the mediations, the housing specialists have used the breakout room feature so parties can discuss matters in private. Trials conducted via Zoom will be a different animal, and lawyers will need to come up with some best practices for them.

Another thing I’m certain of is that it will take longer to move an eviction case through a post-Eviction Moratorium Housing Court. Perhaps many months longer, especially where there’s a jury trial demand. The Court is facing an unprecedented backlog and situation with the pandemic plus the Moratorium, and it will take quite a long time for the court to make a dent in the backlog of cases — plus we don’t know how many new cases are on route. Whatever the actual number, it’s been 6 months since new cases were allowed to be filed. However, I vigorously dispute the narrative put forth by the CityLife/Urbana Vida folks that 100,000 evictions are imminent. That’s just unsubstantiated nonsense. At minimum, the CDC Moratorium may well delay a large number of non-payment cases until it expires on Dec. 31.

If you have any questions concerning an eviction or the Housing Court, please feel free to email me at [email protected].

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Lengthy Extension of Eviction Moratorium Likely Unconstitutional; Calls for Adequate Rental Assistance Funding Go Unheeded

With Gov. Baker signaling he won’t extend the current Eviction Moratorium past Oct. 17, and Federal Judge Mark Wolf’s ruling that an extended moratorium would likely be unconstitutional, state legislators and tenant rights activists are frantically pushing an even more draconian 12+ month extension of the moratorium along with a rent freeze. The wide-ranging proposal branded as the “Housing Stability Act,” is on the fast track to passage, just clearing the Joint Committee on Housing. The new bill coming out of the Joint Committee is H. 5018, and is causing alarm within the real estate community, with the Mass. Association of Realtors and Greater Boston Real Estate Board coming out strongly in opposition to the bill.

12-36 Month Extension of Eviction Moratorium

The new bill would impose a new extended statewide moratorium on all “non-essential” evictions for at least 12 months after the Covid-19 State of Emergency is lifted by the Governor. This will cover 95% of all evictions, with the only exceptions being for serious criminal activity which threatens the safety of others. The State of Emergency, which is tied to federal disaster funding, will surely be in place until an effective Covid vaccine is available and infection levels are close to zero — which could be years away. Thus, the proposed eviction moratorium could be in place for the 18-36+ months or even longer, on top of the existing moratorium which has been in place since April. The new moratorium, unlike other states’ moratoriums, does not require a tenant to demonstrate a Covid-19 hardship.

The new eviction moratorium would be constitutionally suspect based on the 102-page ruling issued in late September by Federal Judge Mark Wolf considering housing providers’ challenge to the original Moratorium. (I am lead counsel in that case). Judge Wolf called into question the constitutionality of a moratorium which extended further past Oct. 17, ruling that: “A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.” If this new bill is enacted, rest assured it will face a swift and vigorous legal challenge.

Rental Increase Freeze

The bill imposes an across the board rent increase freeze for the next 12-36 months, regardless of whether a tenant is actually impacted by Covid-19. The bill prohibits housing providers from increasing rent payments in excess of the rental amount in place as of March 10, 2020. The rent freeze will be in place for 12 months after the Covid-19 State of Emergency is lifted. Thus, like the new eviction moratorium, the rent freeze could likely be in place for the next 12-36+ months. This will effectively stop landlords from agreeing to defer rent as an accommodation to financial hardship and enter into a payment plan that recovers the deferred rent through a new lease with a higher payment. This provision would also face legal challenge because it substantially impairs existing leases under the federal Contracts Clause.

Just Cause Eviction Protections

The bill also provides for “just cause” eviction protections to tenants. This has been on tenant group’s wish list for some time now, and has been rejected across the board in the last several years. Under the bill, landlords can only evict for “just cause” if:

  • Tenant fails to pay rent (but no requirement to show Covid-19 hardship)
  • The tenant has materially violated an obligation or covenant of the tenancy or occupancy, other than the obligation to surrender possession upon proper notice, and has failed to cure such violation within 30 days after having received written notice thereof from the owner; 
  • The tenant is committing a nuisance in the unit, is permitting a nuisance to exist in the unit, is causing substantial damage to the unit or is creating a substantial interference with the quiet enjoyment of other occupants; 
  • The tenant is using or permitting the unit to be used for any illegal purpose.
  • Owner intends to make personal use of the unit within 180 days, including personal use or use by family member.

With the just cause protections in place, rental property owners would be effectively prohibited from evicting tenants on a “no-fault” basis, such as terminating a tenancy at will, holding over past the lease term, or refusing a rental increase.

Housing Court Exclusive Jurisdiction For Collection of Unpaid Rent

In a first-of-its-kind proposal, the new bill gives the Housing Court exclusive jurisdiction to hear claims to recover unpaid rent. This is clearly intended to frustrate the collection of unpaid rent by housing providers who are able to file small claims in district courts across the state. The Housing Court will already be incredibly backlogged with pending and new eviction cases after the moratorium, and they have little interest in wasting their scarce judicial resources with small collection cases. This provision will essentially make it nearly impossible to collect unpaid rent balances.

Lack of Adequate Rental Assistance Funding and State Tax Credits

As I have been screaming from the rooftops since the first moratorium was passed, the fatal flaw with all of these proposals is that they remain unfunded. By my calculations, we need at least $300 Million in rental assistance funding. (Taking 100,000 renters at risk of eviction per tenant groups x $3,000 per tenant). The new bill purports to establish a new “Covid-19 Housing Stability and Recovery Fund” but it does not appropriate ANY funds for it. Proponents of the bill simply say that the federal government must fund rental losses. Without adequate rental assistance funding, the burden of Covid-19 impact will unfairly flow down from tenants to small housing providers who are equally unable to sustain those losses.

The new bill also provides for certain state tax credits for rental losses. However, there is a cumbersome application and approval procedure that housing providers must use to obtain these credits, rather than being able to simply claim the credit on personal tax returns. Landlords who claim tax credits cannot proceed with an eviction. Also, state credits are typically quite low (based on 5% state income) so it would not amount to much benefit to owners.

What’s Next?

This bill now moves to the Joint Committee on Rules where it may be amended. Tenant groups are planning a week long push next week to pass this bill. With over 80 co-sponors, it appears the bill has a strong chance of passing on Beacon Hill. The question will be whether Gov. Baker will sign or veto, and whether the State House can obtain a veto-proof 66% vote.

If you are opposed to this bill, I urge you to email the members of the Rules Committee below, as well as your own state rep and senators.

Email addresses for the Governor and all members of the Rules Committee where HD5018 is now under consideration (copy and paste into your email “TO” line):[email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected][email protected]Donald H. Wong

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The COVID-19 pandemic is not a blank check for the Governor and other elected officials.” — U.S. District Court Judge Mark Wolf Issues Landmark 102-Page Opinion on Constitutionality of Massachusetts Eviction Moratorium; Gov. Baker Signals He Will Allow Moratorium to Expire On Oct. 17

As readers of this blog know, I, along my colleague Jordana Greenman, Esq., are lead counsel for several housing providers in a federal court challenge to the Massachusetts Eviction Moratorium in the case of Baptiste v. Kennealy, United States District Court – Massachusetts, CA 1:20-CV-11335 (MLW). For the past three months, we have been battling with the Attorney General’s Office over the constitutionality of the Moratorium and whether the court should enjoin it. After five days of hearings and thousands of pages of legal briefing, Judge Mark Wolf has issued a landmark 102-page opinion in the case. The opinion is embedded and linked to below.

“A public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.”

In a nutshell, Judge Wolf declined for now to enjoin the Moratorium, reasoning that legislators had a reasonable basis for enacting it as a temporary emergency measure back in April during the beginning of the pandemic. However, and most notably, Judge Wolf expressed serious concerns over the constitutionality of the Moratorium if it is extended past its current expiration date of Oct. 17. Judge Wolf wrote:

“The COVID-19 pandemic is not a blank check for the Governor and other elected officials. Rather, it should be recognized that “a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights.”

“In other words, in deciding how to exercise their broad discretion in responding to the evolving COVID-19 pandemic, elected officials have a duty to consider the limitations imposed by the Constitution, rather than merely to rely on courts to remedy any violations of it. As Justice Anthony Kennedy has written, “the very fact that an official may have broad discretion . . . makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and promise.” 

Judge Wolf also recognized that the Moratorium imposes a substantial impairment of leases between housing providers and tenants across the state:

“The rights to evict and recover property if a tenant does not pay rent are important elements of the contractual relationship that a lease creates. The Moratorium deprives the landlords of a remedy for a violation of these rights while it is in effect. It does not prevent a landlord from suing a tenant for rent owed. However, that remedy will often be illusory because landlords are unlikely to benefit from money judgments against tenants who are unable to pay rent during the COVID-19 pandemic or who are unwilling to do so. Therefore, the Moratorium materially undermines the contractual bargain.”

Judge Wolf did rule in our favor that the Moratorium Regulations violate the First Amendment as they force housing providers to provide a state mandated missing rent notice which directs tenants to pro-tenant advocacy groups like City Life/Urbana Vida.

Gov. Baker Signals He Will Not Extend Moratorium Past Oct. 17

Echoing many of Judge Wolf’s concerns, and as the Boston Globe reported yesterday, Gov. Baker suggested he won’t extend the moratorium. Instead, he wants to devise a system that protects both renters and landlords. “We would really like to see if we can put a plan together to make sure that we can do, with the courts, what needs to be done to ensure that people are protected with respect to their housing,” Baker said. “But the longer this thing goes on, the deeper the hole gets, not just for tenants but also for landlords, especially small landlords…who . . . have in many cases already run out of rope.”

We would like to think that our lawsuits and Judge Wolf’s ruling will play a significant factor in Gov. Baker’s ultimate decision whether to allow the Moratorium to expire. We want to make clear that our clients, and housing providers across the state, do not want mass evictions during the Covid-19 pandemic. As we have said from the start, if the state had enacted a large rental assistance funding package from the start, we would likely not be in this situation where thousands of private landlords have been forced to subsidized housing for tenants impacted by the pandemic. We are ready, willing and able to work with the courts and tenant groups to put reasonable safeguards in place to assist tenants if the Moratorium is lifted. I cannot stress enough how important rental assistance funding is.

What is Next? CDC Eviction Moratorium In Place Until Dec. 31, Housing Stability Act

Even if the Massachusetts Moratorium expires on Oct. 17, the new CDC federal eviction moratorium will be in place through Dec. 31. However, the CDC order is far narrower than the Massachusetts moratorium. Tenants must affirmative certify under oath they are financially impacted by Covid-19, and it does not apply to expiration of leases, for cause situations (like bad behavior or criminal activity) and to many “no fault” situations. At a recent Bench-Bar conference, several Housing Court judges stated the court will likely allow service of notices to quit and accept eviction filings unless tenants affirmatively raise the CDC order as an affirmative defense to the eviction. Also, the National Apartment Association and a group of housing providers have challenged the CDC Order in Atlanta federal court. We will see how this will play out.

State legislators and tenant activists also continue to advocate for a 12 month extension of the moratorium through the Housing Stability Act, but again, without meaningful rental assistance funding. A few million dollars in RAFT funding will not cut it. We need upwards of $200 million dollars or more in state rental assistance funding, and unfortunately, that is nowhere to be found right now. Based on Judge Wolf’s ruling, I believe the Housing Stability Act’s 12 month eviction moratorium would likely be unconstitutional.

To all of our faithful supporters, donations to our Legal Fund would also be very much appreciated as we put our law practices on hold for several months now while spending hundreds of hours on this case:  Link: https://paypal.me/pools/c/8orbLzpxbY

Judge Mark Wolf Opinion Pre… by Richard Vetstein

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CDC Eviction Moratorium Pushes Boundaries of its Public Health Authority, Raises Other Serious Constitutional Problems

While we have been in federal court arguing the constitutionality of the Massachusetts Eviction Moratorium, the Trump administration’s Centers for Disease Control and Prevention (CDC) just issued an emergency order (embedded below) imposing a nationwide residential eviction moratorium through December 31, 2020. The moratorium, issued under the CDC’s emergency authority to respond to public health crises and without the usual rule-making and public comment process, would cover millions of renters who are unable to pay their rent due to the Covid-19 crisis. The moratorium is scheduled to be effective as of September 4, 2020. Unfortunately, the moratorium does not provide for any rental assistance funding to landlords or tenants, so like the Massachusetts moratorium, private landlords will again shoulder the entire economic burden of rental losses.

Applicability to States With and Without Their Own Eviction Moratoriums

The CDC Eviction Moratorium only applies in states where they do not have an existing residential eviction moratorium, or if they do, where it is less strict than the CDC order. Thus, in Massachusetts, the CDC order would not apply while the current moratorium is in place through October 17, because the Massachusetts moratorium is far stricter than the CDC order. Governor Baker could extend our state moratorium for an additional 90 days, and of course, our challenge to it is still pending in federal court. If Gov. Baker does not extend the state moratorium past Oct. 17 or the federal court strikes it down, this new CDC moratorium would take its place through Dec. 31. The CDC retains the authority to extend the moratorium for any amount of time. Of course, by then there could be someone new in the White House.

Qualifying Process for Tenants

Unlike most other states’ eviction moratoriums, the CDC eviction moratorium requires that tenants take an affirmative step to qualify for protection. Tenants must send their landlord a CDC-approved form 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 for a direct stimulus payment under the CARES Act or expect to earn less than $99,000 in 2020, 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.
  • Unable to pay rent because of financial hardship due to Covid-19, that they have made your best efforts to make timely partial payments and that they would likely become homeless if evicted.

The order is unclear how all of these certifications will be confirmed for truthfulness. Most likely, state courts will have to establish a process where a landlord can challenge a tenant’s hardship declaration. The order does specifically say that tenants are not relieved of the obligation to pay rent, but the overall intent of the order is to ban evictions for renters who cannot pay their rent.

Scope of Eviction Protection

The CDC eviction moratorium only applies to non-payment of rent situations, as outlined above. It does not apply to the following situations where a tenant engages in:

  • Criminal activity on the premises
  • Threats to the health and safety of other residents
  • Damage or posing an immediate and significant risk of damage to property
  • Violations of building, sanitary and health codes
  • Violating any other lease provision, other than the payment of rent

The order, which is quite poorly drafted, applies to “any action by a landlord, owner of residential property, or other person with a legal right to pursue eviction or possessory action, to remove or cause the removal of a [tenant] from residential property.” Without further definition or clarification, we don’t know whether the CDC order would prohibit notices to quit/vacate, commencing an eviction case, prosecuting an existing eviction case, or just the final judicial act of issuing a move-out order.

Severe Penalties for Non-Compliance

The CDC eviction moratorium also provides for incredibly severe and punitive penalties and even criminal liability for landlords who violated it. Landlords can be fined up to $100,000, or up to $250,000 if the violation results in death. The Department of Justice is also authorized to bring civil and criminal charges against landlords.

Legal and Constitutional Problems

While I have not yet done a deep dive into the legality of the CDC eviction moratorium, having just fully briefed the federal court on the constitutionality of the Massachusetts eviction moratorium, many of the same problems are clearly present here. There would be an argument that the CDC moratorium constitutes a “taking” of rental owner’s property in violation of the Fifth Amendment, a substantial impairment of leases under the Contracts Clause, a violation of the right to petition and access courts under the First Amendment, and a ban on commercial speech under the First Amendment. There also appear to be substantial problems with the CDC’s authority to issue such a sweeping economic regulation under its public health authority, as well as its by-passing of the usual administrative rule making procedures under the federal Administrative Procedures Act.

As we told Judge Mark Wolf yesterday the CDC eviction moratorium has no impact whatsoever on our legal challenge to the Massachusetts eviction moratorium. However, we are looking into challenging the CDC order here in Massachusetts.

If you are a landlord and receive a hardship form from a tenant under the new CDC order, please contact me via email at [email protected].

CDC Eviction Moratorium Emergency Order Federal Register by Richard Vetstein on Scribd

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Federal Court Judge Mark Wolf (Boston Globe Staff photo by Ted Fitzgerald)

Suffolk Superior Court Justice Paul Wilson Leaves Moratorium In Place, But Federal Judge Mark Wolf To Hear Arguments on Federal Constitutionality Next Tuesday

For those following the state and federal lawsuits against the Eviction Moratorium (where I am lead counsel), it was a roller-coaster week. While we were arguing the case in federal court on Wednesday, Suffolk Superior Court Justice Paul Wilson released his ruling declining to issue an injunction against the Eviction Moratorium. (See below). We were of course disappointed in the decision, however, it will have no impact on the federal case. This is because we removed all of the federal constitutional claims (First Amendment, Right to Petition, Takings and Contracts Clause) to federal court earlier. The state court case only dealt with state constitutional issues. In any event, we are considering an appeal of Judge Wilson’s ruling as we feel he gave the state too much deference and there may have been some incorrect legal analysis.

In the federal court case, Judge Wolf rejected the Attorney General’s argument that he abstain from hearing the case in light of the pending state court case, reasoning that a federal court is duty-bound to hear the constitutionality of the law. Judge Wolf also raised the possibility of the Attorney General engaging in settlement discussions with us or agreeing to mediation. My comment was of course we would consider that but the AG has always been fighting this tooth and nail and that hasn’t changed. The AG attorney confirmed that. Judge Wolf also made an interesting comment about the state’s successful pandemic response — essentially that while a Moratorium may have been reasonable back in April, it may not be so reasonable now since Massachusetts has done so well against the virus.

Interesting comments as we head into a week of hearings on whether the landlords are entitled to a preliminary injunction stopping enforcement of the Act, starting Tuesday, Sept. 1 at 130pm. Mark your calendars! It will be publicly available. Sign up form below:

Access to the hearing will be made available to the media and public. In order to gain access to the hearing, you must sign up at the following address: https://public.mad.uscourts.gov/seating-signup.html.

Anyways, this case has been quite the interesting ride. The good news is that we are still in this fight, and very much so! Thank you again for all your support. Funding link for donations to legal fees is here: https://paypal.me/pools/c/8orbLzpxbY

Matorin v. Commonwealth of Massachusetts Decision on Preliminary Injunction by Richard Vetstein on Scribd

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