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:
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.
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.
Richard Vetstein, Esq. and Jordana Greenman, Esq., the two attorneys who successfully challenged the Massachusetts Eviction Moratorium in federal court, led this Zoom webinar discussing the re-opening of the Housing Court next week after the Eviction Moratorium expires on Oct. 17. In anticipation of its re-opening during the Covid-19 pandemic and with a major backlog in pending cases, the Housing Court has issued major changes to its court rules, including a new two-Tiered case management system, virtual (Zoom) hearings, and application of the CDC Eviction Moratorium. Attorneys Vetstein and Greenman give an overview of the new procedures, talk about what they think Housing Court practice will look like going forward, and then take questions and answers. This is a can’t miss webinar from two highly experienced landlord-tenant attorneys with inside knowledge of the inner workings of the Housing Court. If you are a rental property owner affected by the Moratorium and desire to re-start a pending case or file a new case, this is for you.
If you cannot view the embedded video, please click this LINK.
For more information about a pending or new eviction in Massachusetts, please contact Richard Vetstein at [email protected].
Lawyers To Give Free Zoom Webinar Tomorrow Oct. 15, 12:30pm
Richard Vetstein, Esq. and Jordana Greenman, Esq., the two attorneys who successfully challenged the Massachusetts Eviction Moratorium in federal court, will lead a free Zoom webinar tomorrow October 15, 2020 at 12:30pm, discussing the re-opening of the Housing Court next week after the Eviction Moratorium expires on Oct. 17.
In anticipation of its re-opening during the Covid-19 pandemic and with a major backlog in pending cases, the Housing Court has issued major changes to its court rules, including a new two-Tiered case management system, virtual (Zoom) hearings, and application of the CDC Eviction Moratorium. Attorneys Vetstein and Greenman will give an overview of the new procedures, talk about what they think Housing Court practice will look like going forward, and then take questions and answers. This is a can’t miss webinar from two highly experienced landlord-tenant attorneys with inside knowledge of the inner workings of the Housing Court. If you are a rental property owner affected by the Moratorium and desire to re-start a pending case or file a new case, this is for you. Zoom information below. See you tomorrow!
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].
The Housing Court expansion plan to have statewide coverage has been gaining political momentum, but whether the plan will receive the long-term funding it needs to make it a reality remains a question mark. The Governor’s fiscal 2017 budget proposal earmarks $1 million for the court’s expansion, which calls for its jurisdiction to be widened with the addition of a sixth division and its bench increased from 10 to 15 judges.
While supporters are pleased with the language in Gov. Charlie Baker’s budget, which authorizes the Housing Court’s structural changes through a so-called outside section, Trial Court officials estimate that the annual cost of the proposal would be more than double the earmarked sum, reaching up to $2.4 million. “The $1 million will allow us to ramp up over a period of time,” Housing Court Chief Justice Timothy F. Sullivan (shown right) told Mass. Lawyers Weekly last week. “We don’t expect it will happen overnight. We’ll have to grow into our new roles.” Meanwhile, House and Senate bills are pending that seek a larger statewide court as well, providing access to those who currently do not fall within the court’s jurisdiction — about one-third of the state’s population.
The budget and legislative proposals call for adding a Metro South Division that would encompass all of Norfolk County (Dedham) — except Brookline — plus Abington, Bridgewater, Brockton, East Bridgewater, West Bridgewater and Whitman. Four of the five existing divisions would absorb additional communities, which includes the highly populated MetroWest area including Framingham, Newton, Cambridge and the rest of Middlesex County.
Of the five new judges that would be added, two would be assigned to the Metro South Division; the circuit judge pool would grow from one to three; and the Northeastern Division would take on an additional judge.
Guarded Support
As I told Mass. Lawyers Weekly, I am a “guarded supporter” of the expansion. Most landlord groups do not consider the Housing Court a level playing field and prefer to have their cases heard in District Court. While the Housing Court’s housing specialists and mediators can help matters move quickly, the volume of cases at some courts can be a bottleneck. “You have to look at the number of cases versus the number of judges available to handle the cases. That’s going to be an important consideration,” I told MLW.
We also need to look at the pro bono legal support available to both sides of the dispute. In Boston Housing Court, for example, there is a small army of Harvard law students ready to assist tenants free of charge. There is no comparable service for small unrepresented landlords, and that’s not fair.
Doug Quattrochi, executive director of the MassLandlords.net trade group, agreed. Though the Housing Court has a process — not available in District Court — that allows landlords and tenants to mediate first and then move directly to trial if an agreement cannot be reached, his trade group would like to see some of the “lopsided, tenant-centric” laws corrected if the Housing Court is expanded, he said. “The laws build in procedural delays that tenants become more aware of in Housing Court. Let’s look at changing these laws,” Quattrochi suggested.
I would fully support the Housing Court expansion if the legislation were linked to the passing of the rent escrow bill and other reforms to make landlord-tenant laws fairer to landlords.
Gov. Baker Selects Newton Lawyer For Housing Court | Now First Trial Court With Female Majority
Maria Theophilis (pictured right in red), a 46 year old partner in the Newton law firm of Broderick Bancroft, has been selected by Gov. Baker to sit as a new judge of the Housing Court. Theophilis replaces Chief Justice Steven D. Pierce, who retired Sept. 30, 2015.
Theophilis was nominated by Governor Charlie Baker who stated to the Metrowest Daily News that “throughout her career, Maria has provided support to those seeking an outspoken advocate on their behalf. Combined with her lengthy record of proceedings before the Housing Court on behalf of both tenants and landlords, I know she carries all the requisite experience to provide sound decisions from the bench.”
Some landlords and small property owners, however, may be a bit concerned about Theophilis’ legal background. She was a staff attorney for several years with Greater Boston Legal Services, which represents tenants and advances a very liberal social agenda. She was also worked for the Lawyers Committee for Civil Rights and the Committee for Public Counsel Services — also two very left leaning public interest groups. More recently, however, she represented property owners as a partner in private practice.
That said, Theophilis has deep experience on both sides of the landlord-tenant relationship which is very important. By all accounts, she has an excellent reputation and was voted in unanimously by the often fickle Governor’s Council which says a lot these days. Plus, she was picked by Republican Governor Baker, who is has been doing a good job with judicial appointments, in my opinion. As with any new justice, she deserves the benefit of the doubt as she steps on the bench for the first time. It’s a tough job.
Theophilis is the sixth woman selected for the Housing Court, which now has a majority of female justices. I believe that no other trial court department can claim that accomplishment.
About 30% of people in Massachusetts do not have access to the state’s Housing Court — one of Massachusetts’ specialized courts handling landlord-tenant disputes, evictions and sanitary code enforcement. The unserved areas include the largest county in the state, Middlesex County and most of Norfolk County, with high density rental towns including Cambridge, Framingham, Brookline, Waltham, Dedham, Malden and Somerville. Also unserved by a Housing Court is all of Cape Cod and the Islands and Chelsea.
Under a plan touted by Supreme Judicial Court Justice Ralph Gants, the Housing Court would be expanded to cover the entire state by July 1, 2015. “We believe that all residents of the Commonwealth, regardless of where they live, should have the opportunity to have their housing case heard by a Housing Court, and benefit from its specialized expertise in residential housing matters,” Gants said in a statement.
As an eviction and landlord-tenant attorney who practices quite a bit in both Middlesex County and in the Housing Court, I can say positively that this is a great idea. In Framingham District Court, for example, the Thursday eviction session can be standing room only with landlords and tenants often spilling outside into the hallway. The busy court is already swamped with criminal matters, and getting a trial date in an eviction case can take upwards of several months — certainly not “just, speedy and inexpensive” as mandated by the Uniform Summary Process Rules.
The Housing Court would be able to take the burden off the local, overworked district courts. With a few more full time judges and already with one of the lowest cost-per-case ratios of any court, they should be able to handle the increase in cases. The “X-factor” will be the overall cost, of course.
The Legislature is set to take up the proposal in early 2015. I’ll keep tabs on any developments.
New Online System Enables Landlords To Screen Tenants for Prior Evictions/Problems
After years of lobbying from rental housing groups, the Massachusetts Housing Court has finally announced a powerful new and free tool for tenant screening: public internet access to all Summary Process, Small Claims, Civil and Supplementary Process case types. Case information can be accessed via the Trial Court’s eAccess internet site at www.masscourts.org.
The site allows users to conduct searches by case type, case number or case name. Users can find detailed instructions on the Housing Court page of the Trial Court’s website. Electronic access to all publicly available case types also continues to be available at public access computers at the five Housing Court divisions and at courthouses throughout the state.
This new system will enable landlords to research whether a potential or current tenant has been a party to a previous eviction, small claims or related housing case. Obviously, a rental applicant with a lengthy eviction history would not be a good candidate for rental housing.
I would caution landlords that despite whatever information may be gleaned from the new system, the fair housing and discrimination laws still remain in place. Under Massachusetts law, a landlord cannot refuse to rent to a tenant on the basis of the tenant’s race, color, national origin, ancestry, gender, sexual orientation, age, marital status, religion, military/veteran status, disability, receipt of public assistance, and children (except for an owner occupied two family dwelling).
Denial of rental applications must be based on non-discriminatory reasons, and a lengthy eviction history where the tenant was found liable for nonpayment or other serious violations of a lease would arguably qualify as such.
Another Expansion Of Massachusetts Landlord Liability
In yet another case demonstrating Massachusetts’ inhospitable legal environment towards residential landlords, Northeast Housing Court Judge David Kerman has ruled that an owner of a mixed used residential – commercial building is “strictly liable” for a drunk tenant’s fall through a defective porch guardrail. The 17-page ruling is Sheehan v. Weaver, and is embedded below. The imposition of strict liability, sometimes called absolute or no-fault liability, makes landlords 100% liable for the injuries of tenants where there is a building code violation, regardless of whether the tenant was equally at fault for the accident. This is a troubling ruling and another reason supporting the notion that Massachusetts is landlord unfriendly!
Faulty Porch Guardrail
The landlord, David Weaver, owned a building with three residential apartments located above a commercial establishment. None of the apartments were owner-occupied. One of Weaver’s residential tenants, William Sheehan, fell through a porch guardrail, several stories onto the asphalt pavement below, suffering serious injuries. There was evidence that Sheehan was intoxicated, however, the connection of the guardrail to its post gave way because it was defective and in violation of the Building Code.
After a four-day trial in the Housing Court, a jury found for the tenant on the negligence claim, awarding approximately $145,000 after a 40% reduction for the plaintiff’s own negligence. The jury also found the landlord strictly liable, assessing $242,000 in damages.
Building Code Violation At Issue
The Massachusetts State Building Code provides for strict (100%) liability for any personal injuries caused by any building code violation at any “place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building.” The landlord argued that the primarily residential structure was not sufficiently commercial to be considered a “building” within the meaning of the Building Code’s strict liability provision. But Judge David D. Kerman disagreed:
“[T]he structure in this case may well be at the outer margin of the class of structures that fall within the ambit of the term ‘building’ in the strict liability law,” wrote Kerman. “However, it is my opinion that the mixed residential-commercial four-unit non-owner-occupied structure in this case is ‘commercial’ and ‘public’ enough to fit within the term ‘building’ in section 51.”
The imposition of strict liability resulted in the landlord being hit with the full amount of the $242,000 judgment with no reduction for the tenant’s comparative negligence due to his intoxication. Ouch.
Commentary: Bad Decision
As I stated to Massachusetts Lawyers Weekly, this is a troubling ruling. The Building Code provision, passed in the late 1800’s, was clearly intended to cover structures with a distinctively commercial nature, i.e., “public hall, factory, workshop, manufacturing establishing or building.” The law was not intended to cover a predominantly residential apartment building with commercial/retail on the ground floor, in my opinion.
This ruling will now expand liability for residential developers who have built quite a number of mixed-use residential projects in the last few years. This decision can be read as providing strict liability for anyone injured due to any type of building code violation, however minor. Property managers and commercial insurers should be aware of this ruling, and ensure that there are no building code issues which could cause harm to tenants.
Given the concerning expansion of liability in this case, look for this ruling to get appealed. Judge Kerman is a well-respected judge, and this decision is a close call, but I think he went a bit too far outside the legislative intent behind the law.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With over 25 years in practice, he is a four time winner of the "Top Lawyer" award by Boston Magazine, a "Super Lawyer" designation from Thompson/West, and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
New Online System Enables Landlords To Screen Tenants for Prior Evictions/Problems
