featured

Wu Administration Misled Public On Details Of Plan: Corrupt Local Rent Control Boards Can Override Rent Increases, Lifetime Leases Allowed, Small Housing Providers Unfairly Targeted

The Boston City Council just passed Boston Mayor Michelle Wu’s controversial rent control measure by a 11-2 vote. Wu marketed her plan as some sort of reasonable compromise where rents would be capped between 6 – 10% annually. Her PR team also attempted to re-brand rent control as “rent stabilization,” which again implies something softer than traditional rent control, which Massachusetts voters rejected back in the 1990s — because it was always a disastrous failure. The problem with all this is that Michelle Wu flat out misled and lied to the public about the details of her rent control plan. The devil is always in the details, and when you actually read the bill (embedded below), it will become abundantly clear that this is the most extreme rent control policy ever proposed in Massachusetts history. That is not an exaggeration. This plan will wreak havoc in the Boston housing market. It will only take me 5 minutes to explain why below.

The Return of Local Rent Control Boards Which Can Override and Lower Rent Caps

Mayor Wu in her letter transmitting her Rent Control Proposal states, “The maximum allowable rent increase would be set at the Boston Metro Consumer Price Index (CPI) + 6 percent, but in no event could rent for a unit exceed 10% in a year.” This is false. Hidden in the proposal (Sec. 2e-g) is a provision authorizing the return of local rent control boards, filled with political appointees, who have the authority to override the 6-10% cap, and lower the rent control cap on annual increases, or veto rent increases altogether. The bill provides: “The City may provide for fair return standards for the regulation of rent, which may including but are not limited to, changes to permissible rental rates based upon certain maintenance and capital costs and rapid increases in property taxes. . . The City may establish or designate an administrator or board, to promulgate regulations pursuant to this section and govern local rent regulation.”

The 6-10% cap was always a bait-and-switch. The Wu administration and local political rent control boards can simply lower the annual cap whenever they want based on an amorphous “fair return” standard. Depending on the circumstances, a local rent control board could also veto any proposed rent increase. Do you know what happens when housing providers cannot increase the rent while inflation, real estate taxes and maintenance costs are soaring in this weak economy? Take a wild guess. We saw this in the 1970s and 1980s — before left progressives like Mayor Wu were even born. Without enough rental income, small owners cannot afford to make repairs or do renovations, and their properties fall into disrepair. They will be forced to sell to big corporate investors who treat tenants even worse. Neighborhood property values sink, and crime goes up. After rent control was lifted in the mid 1990s, we saw the single greatest housing and development boom in the history of Boston. The Seaport neighborhood was created. Southie because a place for young professionals. Roxbury, Dorchester and Mattapan saw huge public investments in housing and infrastructure. Today, we are seeing entire areas turned around — near the TG Garden, Allston-Brighton, SoWa, Mission Hill, and on and on. That’s not a coincidence.

Rent Control Building Cambridge 1980s

The return of notorious rent control boards is also a huge problem. If you are old enough, you may remember the stories of out of control, corrupt rent control boards in Boston, Cambridge and Brookline doling out rent controlled units to college professors, doctors, and even state supreme court justice Ruth Abrams, who had a rent controlled apartment in Cambridge. Who will sit on these rent control boards under Wu Control? There are no standards or guidelines in place, and you can bet that ultra left activist Friends of Michelle will be sitting on these powerful boards, accountable to no one, certainly not housing providers or voters.

In all of their many press conferences, TV interviews, and “listening” sessions, which were dominated by tenant and housing activists, you never heard Michelle Wu say a word about the rent control boards or the “fair return standards.” That was intentional, and it was done to mislead the public and play down this proposal as fair and reasonable. Don’t be fooled by the smoke and mirrors. Read the fine print. This is a fugazi.

Just Cause” Eviction Protections Enacted — Neverending Leases and Lifetime Tenancies Created

If rent control were not bad enough, the bill also includes “just cause eviction” protections for tenants which — and I’m not exaggerating — allows tenants to claim never-ending leases and lifetime tenancies. Now this is the 4th or 5th time that the City has tried to pass “just cause” eviction protections, the latest being the Jim Brooks Act, all of which failed to get enough votes. But somehow now, this incredibly one-sided measure has wound up in the Rent Control bill, and no one even blinked an eye.

The bill gives tenants an unlimited legal right to a lease renewal (even if there is no right of renewal in the lease) for an equivalent term of like duration at the rent controlled rate. Tenants at will have the same unlimited right to renew. There is no limit on the number of times a tenant can request a renewal, so this essentially creates a Never-Ending Lease with the applicable Rent Controlled Cap. Total insanity.

Furthermore, under the “Just Cause” measure, all “no-fault” evictions are prohibited in Massachusetts. These are essentially any eviction other than a non-payment situation, a serious lease violation, or some type of criminal activity. As has been the law for centuries in Massachusetts, a landlord may end a month-to-month tenancy at will with a 30 day notice to vacate. Landlords may also evict tenants who stay on after a lease has expired, or tenants who have refused a renewal request raising the rent. These situations come up all the time — owners want to sell the property; the landlord-tenant relationship has deteriorated beyond repair; a tenant is squatting after the lease expires. In all of these situations, the housing provider is stuck with the tenant. No eviction is permitted. Does that sound crazy to you? It does to me. Even in the case where an owner wants to move back into a rental unit or lease to a family member, the bill requires the payment of a relocation benefit to the tenant, set by the City. This would likely be thousands of dollars.

They call this “Just Cause”? Well, I call it illegal and unconstitutional. These provisions would essentially allow the government to force a housing provider to house a person against their will, indefinitely. Sounds like a violation of the Fifth Amendment Takings Clause and Contracts Clause of the U.S. Constitution. I can assure my readers that I, along with the legal team who challenged the Covid Eviction Moratorium, are looking very closely at the legality of this, as well as the the entire bill. Stay tuned for more developments there.

Small Housing Providers Are Unfairly Targeted

Wu Control unfairly targets smaller “mom and pop” housing providers, excluding large corporate landlords who have built projects within the last 15 years. Small housing providers account for 90% of the housing stock in Boston, according to WGBH Public Broadcasting. All stand alone rental properties built after 2008 would be rent controlled unless one of the units is owner-occupied and has six or fewer units. Units less than 15 years old are exempt. So while newer projects in the Seaport or Back Bay would be exempt from rent control, the family who rents out their condominium or owns a couple rentals in Southie or Dorchester or Roxbury would be subject to rent control. Does this sound fair to you?

Wu Misled Public About Smaller Multi-family Buildings

The Wu administration kept saying their rent control measure does not apply to smaller building with 6 or less units, so to the small landlords, nothing to worry about here. That is another lie. Read the bill. The exclusion on rent control only applies to a 6 or less unit building where the owner lives in the building. A stand alone 2, 3, or 4 family decker house, or a one or two unit condominium building and any other smaller rental property where the owner does not live there WILL BE SUBJECT TO RENT CONTROL.

Condominium Conversion Restrictions

The Wu Control Bill also allows the City to enact a condominium conversion ordinance which would impose a myriad of restrictions on your right to convert a two-three family house or other building into a condominium. Mandatory tenant relocation payments, and notification requirements (up to 1-2 year delays) would be imposed. This, in and of itself, would significantly discourage the creation of new housing units. Condominium units create new tax revenue for the City, and they also allow long time and elderly residents to tap into the equity value of their homes, but this would go by the wayside if there are too many impediments to conversion. It’s just another stupid policy decision by the Wu administration.

Rent Control Is Terrible Public Policy; Studies Show It Backfires

As I have written here, the great thing about the 1994 statewide vote banning rent control is we now have empirical data and a reliable study from prominent economists which has compared the Cambridge housing market during rent control vs. after rent control. We also have data and a similar study out of San Francisco. Both studies (and many others from the past) have found that rent control did not work at all, and actually had the exact opposite effect — contributing to gentrification, displacement of tenants and income inequality. Rent controlled owners typically defer repairs and capital improvements, because they aren’t getting enough rental income to make the numbers work. With more run-down rentals, rent control also lowers property values overall in neighborhoods.

Moreover, a recent new National Apartment Association report analyzing the impact if a 3% annual cap on apartment rents in Boston concluded that:
New apartment supply will drop by more than 700 units per year;
●  Apartment property values will drop by more than $260 million; and
●  Property tax revenue to the City of Boston will drop by more than $2 million annually.

What far left progressives like Mayor Wu fail to appreciate is the basics of micro-economics and supply vs. demand. There is far too little affordable housing in Massachusetts, due in large part to burdensome zoning, lack of available buildable land, and NIMBY neighborhood groups. Imposing an artificial government price control does nothing to address the critical supply issue. To the contrary, it will just make it worse, as studies show rent control results in deferral of landlord repairs and capital improvements and depression of nearby housing stock. If Wu is serious about tackling housing, she must have the City build its own affordable housing projects and incentivize developers to do the same. Otherwise, she’s just playing politics.

On To the State House

I have not seen one article in the media which has raised the above problems with the new rent control boards, their ability to veto rent increases, the just cause eviction measures, the lifetime leases, and the targeting of small housing providers. Not one. PSA to reporters: Do Your Job, and Do It Better. This disaster of a bill now goes to the State House and requires a majority vote and Gov. Healey’s approval. I sincerely hope that legislators take the time to truly review this proposal and get everyone’s input on it. Don’t exclude the rental property owner side like the Wu administration did. In fact, MassLandlords, the leading housing trade association, had to sue the Wu administration to get them to turn over public records and emails concerning how the Mayor’s Rent Stabilization Advisory Committee were selected. Certainly not the transparency Mayor Wu touted in her election campaign….

If you are interested in joining the fight against Rent Control, consider joining MassLandlords. The Small Property Owner’s Association (SPOA) is also engaged in this. The Greater Boston Real Estate Board issued a statement following Wu’s introduction of her plan saying, “rent control, also known as rent stabilization, is a proven failure. It increases housing costs, discourages upkeep and maintenance and disincentivizes construction. We strongly oppose Mayor Wu’s plan to bring government price controls on housing to Boston because it would make the region’s housing crisis even worse. Instead, the city – and all of Massachusetts – should focus on passing pro-housing policies that reduce red tape, encourage construction and lower overall costs.”

{ 2 comments }

In my 25 years of law practice, I’ve seen a lot of crazy stuff, but this recent eviction case may top my list of “Professional Tenants.” With 14+ evictions, a slew of larceny charges on their record, and thousands in past rent owed in judgments, a husband and wife team from Shrewsbury have perfected an alleged pattern of fraud on local landlords. In my client’s case, they provided him with a bogus credit report and then proceeded to bounce a $13,500 deposit check for a 4 bedroom rental house in Shrewsbury. They failed to make good on the bad check, and squatted in the house for five months without paying a dime in rent, forcing the owner to evict them in Worcester Housing Court. After an 11th hour attempt to delay the move out where the husband lied in front of the judge, we completed a forced move out of the 3,000 sf home. The moving company president said this was the 4th time he has evicted this couple. With the lost rent and mandatory moving and storage fees, my client now faces a $30,000 loss. Before this, court records indicate the couple allegedly engaged in a similar pattern with other local landlords, jumping from one property to another, leaving a trail of unpaid judgments, attorney fees, and moving/storage bills.

So here in tenant-friendly Massachusetts we have these type of cases which essentially go undeterred, while tenant advocates and local politicians try to impose “just cause” legislation making it even harder to evict tenants. These are not isolated instances. Take a look at the Housing Court dockets and you’ll see hundreds if not thousands of massive (and worthless) judgments for unpaid rent.

The only saving grace in my case is that we were able to have criminal charges for larceny by check brought against the husband who passed the bad check. And the eviction *only* took three months start to finish, which is light speed these days. If you are a Worcester area rental property owner, please watch out for these people!

{ 1 comment }

Boston Mayor Michelle Wu Preparing To File Comprehensive Rent Control and Just Cause Eviction Bill

Update (3/8/23): Learn About The Disastrous Rent Control Bill Passed By Boston City Council

Yesterday all the major Boston news outlets reported that City of Boston Mayor Michelle Wu is readying a proposal to bring back rent control to Boston. Voters statewide rejected the controversial idea three decades ago in 1994, and several new economic studies, including out of Cambridge, MA, have definitively proven it is a failed policy. Wu’s rent control ordinance would cap annual rent increases between 6% – 10% depending on the Consumer Price Index and Inflation Index. While very small owner-occupied buildings are exempt from the law, this may be negated by Wu’s “just cause” eviction protections, which make it nearly impossible for landlords to bring “no-fault” evictions and remove “at will” tenants.

Under the Home Rule Amendment, “Wu Control” would need full approval from the entire state Legislature and Gov. Maura Healey. According to the Boston Globe, House Speaker Ronald Mariano has “questions” about the policy, including fears that it could discourage investments in housing. “It’s been voted down a number of times,” the Quincy Democrat noted. Gov. Healey, meanwhile, avoided taking a position on Wu’s proposal, saying, “It’s something I have to look at and review.” Similarly, a spokesperson for Senate President Karen Spilka said only that she would review “any finalized proposal” that came before the Legislature.

Predictably, property owners are vehemently opposed to bringing back rent control. As I have written here, the great thing about the 1994 vote banning rent control is we now have empirical data and a reliable study from prominent economists which has compared the Cambridge housing market during rent control vs. after rent control. We also have data and a similar study out of San Francisco. Both studies (and others from the past) have found that rent control did not work at all, and actually had the exact opposite effect — contributing to gentrification, displacement of tenants and income inequality.

If Wu is successful in getting rent control passed in Boston, rest assured that lawyers like myself will be seriously contemplating lawsuits challenging the measure, perhaps even all the way up to the U.S. Supreme Court, which showed a willingness to strike down overreaching eviction moratoria laws during the Covid pandemic. The same rationale could easily apply to rent control.

What far left progressives like Mayor Wu fail to appreciate is the basics of micro-economics and supply vs. demand. There is far too little affordable housing in Massachusetts, due in large part to burdensome zoning, lack of available buildable land, and NIMBY neighborhood groups. Imposing an artificial government price control does nothing to address the critical supply issue. To the contrary, it will just make it worse, as studies show rent control results in deferral of landlord repairs and capital improvements and depression of nearby housing stock. If Wu is serious about tackling housing, she must have the City build its own affordable housing projects and incentivize developers to do the same. Otherwise, she’s just playing politics.

I spoke to Dan Rea on his “Nightside” show on WBZ Radio about Mayor Wu’s rent control proposal. Listen HERE.

{ 0 comments }

High Court Rules That Trial Judge Improperly Instructed Jury On Golf Course Property Easement, Covenants and Restrictions

Credit: Boston Globe

In a case which has received national attention and a People Magazine article, the Supreme Judicial Court has overturned a jury’s award of $5 Million to a family whose home overlooking the 15th hole at the Indian Pond Country Club in Kingston was pelted by hundreds of errant golf balls. Erik and Athina Tenczar brought the lawsuit against the Indian Pond Country Club in Plymouth Superior Court, claiming that duffers shanked over 700 wayward golf balls off the 15th tee, peppering their home, breaking windows, and tormenting their family for years without an acceptable solution from the club. A jury agreed, awarding the couple an eye dropping $3.4 Million in emotional distress damages, plus another $1.6M in property damage with interest.

The massive jury verdict had many real estate attorneys and golf enthusiasts scratching their 9-irons, with online comments ranging from “what did they expect living next to a golf course” to “the club did not do enough.” In an eagerly awaited decision, a unanimous Supreme Judicial Court struck down the jury verdict. The justices ruled that the trial judge misinterpreted the covenants and restrictions governing the golf course home community, and that he incorrectly instructed the jury on those rules which gave the club an easement allowing for the “reasonable and efficient operation” of a golf course in a “customary and usual manner.”

Justice Scott L. Kafker, who wrote the opinion, acknowledged that golf is a game of misses and errors:

“Errant golf balls are to golf what foul balls and errors are to baseball. They are a natural part of the game. They demonstrate the difficulty and challenge of the sport even for the very best players,” Kafker wrote. “Despite practice, instruction, technological improvements, and even good golf course design and operation — disputed in [this] case — golf shots go awry, as a matter of course.”

It’s hard to say whether the jury, if properly instructed on the scope of the covenants, restrictions and easements, would have come to the same result. The Tenczar’s presented the jury with evidence that over 700 flying balls shattered windows in their house with such force they sent glass spraying into the next room; the siding on the house was peppered with circular dents. The couple say they anticipated putting up with some amount of sound and distraction from living along a golf course. But they were not prepared for the extent, frequency, and intensity of all of it . . . Honestly, if you have all these houses on a course, I assumed it was safe,” Athina Tenczar told the Boston Globe. The club made several modifications to the 15th hole to encourage golfers to hit shots away from the Tenczer home, but they did not install protective netting.

While owning a home on a golf course comes with the inherent risk that errant golf balls will come onto property, the Tenczars will get to tee up their case another time before a jury. That is, if they aren’t able to settle the case with the club. Perhaps that’s the best way to an “even par” result. The case is Tenczar v. Indian Pond Country Club, Inc., 491 Mass. 89 (Dec. 20, 2022), embedded below.

{ 0 comments }

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.

{ 1 comment }

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.

{ 0 comments }

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.

{ 3 comments }

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.

{ 6 comments }

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.

{ 2 comments }

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.”

{ 0 comments }

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).

{ 6 comments }

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.

{ 1 comment }

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. 

{ 1 comment }

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].

{ 1 comment }

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.

{ 0 comments }

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.

{ 5 comments }

$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].

{ 0 comments }

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].

{ 3 comments }

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

{ 0 comments }

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

{ 5 comments }