Tenants Given Presumptive Right to Seal Certain Eviction Records; Strict Rules Imposed On Credit Reporting Agencies; Landlords May Lose Invaluable Tenant Screening Tool
After years of lobbying, tenant advocates finally got a long-sought after eviction sealing measure through the Legislature and signed by Governor Healey as part of the recently passed Affordable Homes Act. Gov. Healey signed the measure into law on August 6. Under the bill, tenants will have the right to seal eviction records from public view (and landlord screening efforts) and get them removed from their credit reports. Additionally, credit reporting agencies will face strict rules and stiff penalties for disclosing sealed eviction records, which may put them out of the business of tenant screening altogether. Advocates say this will help tenants obtain housing without the chilling effect of an eviction record typically caused by economic hardship. Housing providers counter that eviction records are a crucial screening tool for landlords, and without it they may ask prospective renters to show a higher credit score or income in order to qualify. The key with this new measure is that in the vast majority of cases, the burden is on the tenant to initiate the court record sealing process – if they don’t do that, then the record will remain publicly available. But if they do file a petition to seal, it will typically be a very quick and easy process to get the record seal and removed from credit reports, and in many cases, the landlord will not even realize that it happened.
With a 270 waiting period, the law goes into effect on May 5, 2025. There are different court record sealing procedures for different types of eviction cases, outlined below, and the Housing and District Courts will need to create new forms under this law. I’ve posted the new bill at the end of this article.
No Fault Cases
No-fault cases are defined as evictions when a landlord terminates a tenancy at will or after a lease expires where no unpaid rent or material violation of a lease provision is claimed by the landlord. No fault cases also include an “action brought after termination of a tenancy for economic, business or other reasons not constituting a violation of the terms of the tenancy.” This situation would typically involve a decision by the landlord to sell the leased property.
In a no-fault case, a tenant may file a petition to seal the eviction record, with notice provided to the landlord. If no objection is filed within 7 days of filing the petition, the Housing or District Court will approve the petition administratively without a hearing. It will be interesting to see how the courts verify whether the landlord has been properly notified, if at all. My sense is that enforcement here will be quite lax.
Non-Payment of Rent Cases
Eviction sealing is available in non-payment of rent cases where a tenant has a clean eviction record for the last 4 years. The tenant must certify that the nonpayment of rent was due to economic hardship which rendered them unable to satisfy the judgment. Notice of record sealing must be provided to the landlord, and an objection must be filed within 7 days of the petition filing. If no objection is made, the court will presumptively order sealing of the record. If an objection is filed, the court must conduct a hearing to determine whether the nonpayment is due to economic hardship and may require the tenant to file a financial statement.
In cases where the tenant has paid up under a payment agreement or judgment, landlords are obligated to file with the court a satisfaction of judgment within 14 days of full payment. If the landlord doesn’t file the satisfaction, the tenant may petition for the entry of a satisfaction of judgment. Upon entry of the satisfaction, a tenant may petition immediately for sealing of the court record under the process above.
At Fault/For Cause Cases
In so-called at-fault and for cause cases (including nuisance/drug/criminal cases brought under Chapter 139, section 19), a tenant may petition for court record sealing if he or she has a clean eviction record for 7 years. At-fault/for cause cases typically involve serious violations of a lease or tenancy, such as drug or criminal activity, excessive noise, smoking, housekeeping, and behavioral problems. The filing procedure is the same as described above, with at fault/for cause cases presumptively approved where the landlord does not file an objection within 7 days of the petition filing. However, for Chapter 139, sec. 19 cases, a court hearing is required to determine whether the tenant has been charged with any crimes and sealing is in the interests of justice and public safety.
Dismissed Cases/Judgments In Favor of Tenant
In cases which have been dismissed or where the tenant wins and receives a judgment in their favor, the tenant may file a petition to seal the court record immediately without any notice to the landlord. These petitions will be administratively granted without a hearing.
I’ve flagged this provision as problematic because non-payment cases are often dismissed if a tenant moves out voluntarily, or shortly after a payment plan is completed or if the case is old. Tenants may be able to use this loophole to get cases sealed even if they do not presumptively qualify are able to skirt the 4 or 7 year waiting period.
Credit Reporting Agencies
In a far-reaching provision, Consumer Reporting agencies will need to comply with very strict limitations on using sealed (and un-sealed) eviction records in consumer credit reports. Credit agencies cannot disclose sealed records “unless the court record was available for inspection with the court within 30 days of the report date.” This provision is unclear and confusing, but I think the intended policy is that sealed records should not be available on credit reports. Credit agencies must remove from a credit report any information related to a sealed eviction court record within 30 days of sealing. (I’m not sure how agencies are going to monitor this). But the bill goes even further, requiring credit agencies, who collect non-sealed eviction court records, to list the exact type of eviction action on the credit report (i.e., no-fault, nonpayment, or for cause). This would require that credit agencies actually pull the court docket and make a determination of the type of case, which they are essentially incapable of doing unless they hire a small army of lawyers (which they likely won’t do). Tenants can recover actual damages and attorneys’ fees against credit agencies for violations of these new rules, and the Attorney General also has oversight jurisdiction. The net effect of these new rules will likely be that credit report agencies doing business in Massachusetts will stop collecting eviction records all together.
Rental Application Disclosure Language
The new measure also mandates that all tenant rental applications contain the following new language: “An applicant for housing or credit with a sealed record on file with the court pursuant to section of chapter 239 of the General Laws may answer ‘no record’ to an inquiry relative to that sealed court record.”
What’s Next?
As mentioned above, the measure does not go into effect until May 2025, and that’s probably a good thing because the courts need to create new forms, and the credit agencies have a lot of internal changes they will need to make. Same for landlords and rental agents. While I was writing this up, a colleague asked me this question: “If a record is sealed, does that prevent it from being a “hit” on the 4 or 7 year look-back periods when/if a tenant petitions for a record to be sealed?” My answer (as least right now) is that if a record is sealed, it appears that there should be no “hit” at all for any of the look back periods. Now this is in theory, and I think what will actually happen is either credit agencies will remove all eviction “hits” altogether from their MA reports, or there will be a big lag between what’s on the reports and what’s supposed to be sealed, and the onus will likely be on the tenants (or the courts ….good luck with that) to fix that. Since it’s Massachusetts, I’m sure it will be the usual mess! So we’ll see how this will shake out once the law goes live.
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If you are a landlord and have any questions about this new Massachusetts tenant screening law, please contact me at [email protected].
Massachusetts Eviction Sealing Bill New GL c. 239 s. 16 by Richard Vetstein on Scribd
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