Rich Vetstein

A Massachusetts Real Estate Litigator Talks About Lis Pendens Basics, Strategy, and Pro Tips.

Recently, I gave a well attended webinar for the Real Estate Bar Association on a subject that is near and dear to my real estate litigator’s heart — The Massachusetts Lis Pendens. The webinar was an introductory presentation which I called “Lis Pendens 101,” and covered essentially all the basics from what is a lis pendens, how to get one, how to defend against one, and everything in between. I’m basically going to convert my presentation into this blog post. I’m going to write it for both lawyers and the general public, so some of it may seem basic while other parts may seem complex. Ok, let’s do this.

What Is A Lis Pendens?

Well, let’s start with the Latin translation of the term “lis pendens.” It means “a suit pending.” Here in Massachusetts, a lis pendens is a notice of a lawsuit recorded at the registry of deeds against the title to the particular property at issue in that lawsuit. A lis pendens must be approved by a judge who must find the lawsuit “affects the title to real property or the use and occupation thereof or the buildings thereon.” Once recorded at the registry of deeds, a lis pendens can effectively stop a purchase or sale of real estate from closing, create a “cloud” on title, and otherwise prevent a party from taking adverse action involving the subject property. Additionally, title insurance companies routinely decline to insure a title with a lis pendens on title. The lis pendens really earns its well-deserved reputation as deadly arrow in a real estate litigator’s quiver.

For Which Type of Case Can You Get a Lis Pendens Issued?

The lis pendens procedure is governed by statute, Mass. Gen. Laws ch. 184, sec. 15, and practitioners should be intimately familiar with it. The statutory standard for obtaining a lis pendens is that the lawsuit “affects the title to real property or the use and occupation thereof or the buildings thereon.” Ok, so what does that mean? Some examples of cases that are covered are:

  • Real Estate Contract Disputes/Specific Performance
  • Boundary Line/Easement Disputes and Adverse Possession
  • Quiet Title Actions 
  • Restrictive Covenants

Please note that under the statute, in Zoning/Wetlands Appeals cases, you are not entitled to a lis pendens — this was enacted to keep real estate development permitting from being railroaded by abutter appeals.

How To Get a Lis Pendens

First off, you need an experienced real estate litigation attorney because the process is complicated. The attorney will draft a Verified Complaint which must be signed by the plaintiff client under the pains and penalties of perjury attesting that all facts are true and accurate, and no material facts have been omitted. The “no material facts have been omitted” requirement was added in 2002, and I’ll discuss this below as there has been recent case law on it. The complaint must name as defendants all owners of record and any party in occupation under a written lease. Along with the Verified Complaint, the attorney will file a Motion for Issuance of Lis Pendens, a proposed Memorandum of Lis Pendens, and Motion for Short Order of Notice.

You also have to pick your venue, which is between Superior Court and Land Court. There are a lot of factors which will go into that calculation, including how complex your case is, whether you want a jury trial, and whether you want your case in Boston (Land Court).

The way I handle a lis pendens is that I will file the case in person in the afternoon and seek what’s called a “short order of notice,” which accelerates the time schedule for getting the motion for lis pendens heard by the judge. You get to pick a hearing “return date” and then you must serve a Summons and Order of Notice along with all the other pleadings on the defendant(s) by sheriff or constable. Then you wait a couple weeks until the hearing date and any opposition or special motion to dismiss from the opposing side (which I’ll cover below). If there is a clear danger that the other party will convey or encumber the subject property, you can file the motion “ex parte” – that is, without the other side being notified in advance, however, you have to make that factual showing there is an emergency.

At the hearing on the motion for lis pendens, both sides and their attorneys will argue before the judge whether the case qualifies for the issuance of a lis pendens. In theory, the standard for getting a lis pendens is quite low. There should not be any debate over the merits of the claims; the only issue is whether the case qualifies for a lis pendens. However in practice, especially if the defendants are opposing the lis pendens or have filed a special motion to dismiss, you’ll get deep into the merits of the case at that hearing.

Defending The Lis Pendens

With the 2002 amendments to the lis pendens statute, there are now several ways to attack a motion for lis pendens. When I was first practicing back in the late 1990’s, judges would give out lis pendens like candy. Not anymore.

A party defending a lis pendens may now file a “special motion to dismiss.” If a judge allows the special motion to dismiss, any claim affecting title will be dismissed AND the plaintiff will have to pay the defense’s attorney’ fees and costs. Additionally, the case is basically frozen in place until the special motion is ruled upon. So this remedy has a lot of teeth. However, getting a judge to grant a special motion to dismiss is not easy. You must demonstrate that the action is frivolous because (1) it is devoid of any reasonable factual support; or (2) it is devoid of any arguable basis in law; or (3) the action or claim is subject to dismissal based on a valid legal defense such as the statute of frauds. In my 25 years, I’ve only had a handful of cases thrown out on a special motion to dismiss.

Another way to attack a motion for lis pendens is to focus on what may have been left out of the plaintiff’s lawsuit. Under recent case law, a party’s failure to include all material facts in its complaint or required certification may result in denial of lis pendens and dismissal of that party’s claims where the omitted facts establish that those claims are devoid of reasonable factual support or arguable basis in law.  Some cases detailing this strategy are: McMann v. McGowan, 71 Mass. App. Ct. 513 (2008); Galipault v. Wash Rock Invs., LLC, 65 Mass. App. Ct. 73 (2005); DeCroteau v. DeCroteau, 90 Mass. App. Ct. 903 (2016). I’ve used this strategy several times successfully resulting in the judge declining to issue a lis pendens where the plaintiff left out critical facts in his complaint.

The Memorandum of Lis Pendens

If you have the good fortune of convincing the judge to issue a lis pendens in your case, your attorney will have the judge endorse a Memorandum of Lis Pendens form which then is recorded at the registry of deeds. The Memorandum must contain the caption of the case, the record owners, address, and deed reference to the subject along with the judge’s endorsement that: “It is hereby found and ordered that the subject matter of this action constitutes a claim of a right to title to real property or the use and occupation thereof or the buildings thereon within the statutory definition of G.L. c. 184, § 15.” A certified copy of the Memorandum of Lis Pendens along with Affidavit of Service (service by certified mail) must be recorded either in person or through the e-record system.

The lis pendens stays on record (and creating a cloud on title) during the entire pendency of the case, which can go on for many years. That’s what makes it so powerful, and in many cases, can force a party into a favorable settlement or resolution.

Appeals

Ok, you’ve either got your lis pendens or you may have lost and had a lis pendens issued against you. Can I appeal? The answer is maybe, and it’s complicated. An “interlocutory appeal” is available to a Single Justice of the Appeals Court available under G.L. c. 231, s. 118, first and second paragraphs for “any party aggrieved by a ruling [under the statute].” A full panel appeal to the entire Appeals Court is also available. There is a hard 30 day appeal period for both. An appeal covers the denial/grant of lis pendens and a grant of a special motion to dismiss, but not the denial of a special motion to dismiss. Practicioners should review the statute carefully and DeLucia v. Kfoury, 93 Mass. App. Ct. 166 (2018); Citadel Realty LLC v. Endeavor Capital North, 93 Mass. App. Ct. 39 (2018). The best practice is to file single justice appeal and notice of appeal in lower court for full panel appeal. 

Dissolution

Once a lis pendens goes on record, it doesn’t go away unless it is properly dissolved. If the parties are fortunate enough to settle the case, dissolving the lis pendens is fairly easy with the attorneys signing and recording a formal Dissolution of Lis Pendens, or a Stipulation of Dismissal, then certified copy of Judgment of Dismissal. If you get the lis pendens dissolved by the court or even better, the entire case dismissed prior to judgment, you’ll need to record certified copy of Order Dissolving Lis Pendens and/or Certificate of Judgment.

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I often refer to the lis pendens as a real estate litigator’s best friend and worst enemy. It can make the difference between winning and losing your real estate case, and most often creates the leverage needed to secure a favorable resolution. If you have any questions regarding the lis pendens process, feel free to email me at [email protected].

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Non-payment Evictions Put On Hold Until Tenant RAFT Applications Are Denied/Approved

Ignoring strong opposition from property owners, the Legislature and Gov. Healey have re-enacted a Covid-19 era tenant protection law (Chapter 257 of the Acts of 2020) which puts an indefinite hold on any non-payment eviction where the tenant has applied for rental assistance (RAFT) until such time as the application is approved or denied. This was part of the FY24 budget signed by Gov. Healey in early August, and fell under the radar of many folks in the rental property community.

As the saying goes, justice delayed is justice denied. The net effect of this reenacted policy will be delay, delay, delay for all landlords filing non-payment of rent eviction cases, on top of the already hefty delay caused by the pandemic backlog of cases. When this law was originally put in place in 2020, landlords saw their time in court triple, according to Housing Court statistics. We can expect that to remain the same, or even worse.

Even more problematic, the limit for RAFT assistance in any 12 month period has been reduced to $7,000 — barely enough to cover a few months rent in the Greater Boston area. Most housing providers do not start evictions until tenants are behind several months, so by the time they get to court, arrearages are typically in the many thousands, and often well over the $7,000 cap. Furthermore, understaffed state agencies handling RAFT applications can be hit or miss. During the pandemic, tens of thousands of rental assistance applications “timed out” without explanation. Tenants will be able to further drag out the eviction process, resulting in many landlords being forced to negotiate huge unpaid rent concessions just to gain back possession of their units. I see this in court on a daily basis.

The “new” Chapter 257 law provides as follows:

In an action for summary process for nonpayment of rent, a court having jurisdiction over said action for summary process shall:

(i) grant a continuance for a period as the court may deem just and reasonable if, either at the time the answer is timely filed or on the date the trial is scheduled to commence: (1) the tenancy is being terminated solely for non-payment of rent for a residential dwelling unit; (2) the non-payment of rent was due to a financial hardship; and (3) the defendant demonstrates, to the satisfaction of the court, a pending application for emergency rental assistance; provided, however, the court may consider any meritorious counterclaim brought in said action for summary process;

(ii) issue a stay of execution on a judgment for possession if the requirements in clauses (1) to (3), inclusive, of paragraph (i) are met; and

(iii) not enter a judgment or issue an execution before the application for emergency rental assistance has been approved or denied.

The “new” Chapter 257 only applies to non-payment cases; it does not apply to no-fault, for cause, or post foreclosure cases. The law also contains some language which would allow a landlord to challenge whether the nonpayment of rent is actually due to a legitimate financial hardship. This would most likely require some type of evidentiary hearing. I will keep you informed as to any further developments with the new Chapter 257.

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New Rules Aimed At Reducing Pandemic Era Case Backlogs and Delays

Are the old days of packed Thursday morning summary process sessions coming back? They just may be. With the expiration of a pandemic era law called Chapter 257 and the end of the Covid-19 emergency, the Massachusetts Housing Court just released an important new Standing Order 1-23 which will speed up cases and move to more in-person hearings and less virtual appearances. The new Standing Order should be welcome news to housing providers whose cases have been delayed due to Chapter 257 and the backlog of post-moratorium pandemic era cases.

Expiration of Chapter 257

With the expiration on March 31 of Chapter 257 of the Acts of 2020, there is no longer an automatic hold on cases where there is a pending rental assistance application filed by the tenant. However, while a case with a pending RAFT application will continue to move forward, that is not to say that a judge would evict a tenant who expects to receive rental assistance covering an arrearage. The problem has always been that since the RAFT limit decreased to $10,000, many landlords are owed more than that, so those landlords will not be penalized by the Chapter 257 delay any longer.

More In-Person Events

Second, all “Tier I” mediations, evidentiary hearings, and trials will be held in-person going forward, unless there are extraordinary circumstances for a virtual appearance. Virtual/Zoom will continue for all case management, pretrial and status conferences, emergency motions on short notice, and certain non-evidentiary hearings. I have mixed feelings about this. Having virtual Tier I mediation events saves legal fees for represented parties and is much better for a busy lawyer’s scheduling. Now a landlord will be charged 3+ hours of lawyer time as opposed to 30 minutes if we are forced to drive to Boston, Worcester or Lawrence for mediation dates. Evictions are already a lose-lose financial abyss for landlords, so I would hope that judges will routinely grant attorneys’ motions for a virtual Tier I hearing.

New Modified Two-Tiered System

For cases filed after June 5, 2023 and certain cases in progress, there is a new modified Two-Tiered System, which should move cases far quicker than current practice. The Tier I court event (mediation/case management) will be scheduled between 30-60 days from the case’s filing. In a change to prior practice and one that will add expense to landlords, the notice of the first court event must be served by constable/sheriff by the plaintiff or its attorney. I was quite disappointed to see this, although local constables will be happy undoubtedly.

Quicker Trial Dates

In a much welcome change, if the case does not resolve at the Tier I event, trials will scheduled 2 weeks later. Currently, the wait for a trial date, especially a jury trial, can be several months. This is great news, and hopefully the Court can implement this despite the huge case backlog and staffing issues. Cases which were filed before June 5, 2023 and have already been scheduled for the Tier I event, shall stay on the prior “slow” track.

Agreements

For agreements for judgment with a self-represented party, the new rules provide that such agreements must be approved by a Housing Specialist, Clerk or Judge who shall determine that the terms are fair and reasonable and that it was entered into voluntarily.

New Notice to Quit Affidavit of Compliance

Lastly, in all non-payment cases, a new affidavit of compliance with the Notice to Quit Attestation Form under G.L. c. 186, section 31 must be filed.

As always, if you have any questions about Massachusetts Evictions, please feel free to contact me at [email protected].

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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.”

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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!

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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.

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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.

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Appeals Court Rules That Liquidate Damages Clause Is Unenforceable Where It Allowed For Recovery of Rent For Remaining Term On Top of Rent Received From New Tenant

If you enjoyed the famous Seinfeld episode where George Costanza was accused of “double dipping” his chips and dip at a family funeral, then you’ll appreciate this post. The case is Cummings Properties LLC v. Hines (Mass. Appeals Court Dec. 6, 2022) where the Appeals Court struck down a liquidated damages clause in a commercial lease which purported to allow the landlord to recover a large financial penalty even though it was able to re-lease the premises.

The case is a good example of what can happen where a party can get a bit too greedy in seeking damages in a commercial lease case. Cummings Properties, one of the largest commercial real estate firms in the Greater Boston area, has a well deserved reputation of being an overly litigious commercial landlord (in my humble opinion). I’ve dealt with them several times, and I can tell you a few stories offline. Anyways, in this case, Cummings leased office space to Darryl Hines, who owned a constable/process serving business. Hines had just secured a lucrative contract with the Mass. Dept. of Revenue and needed a larger office for the new business. The lease was for 5 years at around $16,000 annually. Unfortunately, only a month into the new lease, the DOR abruptly cancelled the contract with Hines, leaving him in severe financial distress. Hines tried to work out a resolution with Cummings but it refused to release him from the lease obligations. Hines then defaulted. A year later, Cummings was able to find a new tenant and signed a 4 year lease. Cummings sued Hines, who signed a personal guaranty, for some $82,000 in damages representing the entire balance of the 5 year lease.

The lease provided for a rather common acceleration and liquidated damage provision:

"In the event that . . . LESSEE defaults in the observance or performance of any term herein, and such default is not corrected within 10 days after written notice thereof, then LESSOR shall have the right thereafter, without demand of further notice, to declare the term of the lease ended, and/or to remove LESSEE's effects, without liability, including for trespass or conversion, and without prejudice to any other remedies.  If LESSEE defaults in the payment of any rent, and such default continues for 10 days after written notice thereof, and, because both parties agree that nonpayment of said sums is a substantial breach of the lease, and, because the payment of rent in monthly installments is for the sole benefit and convenience of LESSEE, then, in addition to any other remedies, the net present value of the entire balance of rent due herein as of the date of LESSOR's notice, using the published prime rate then in effect, shall immediately become due and payable as liquidated damages, since both parties agree that such amount is a reasonable estimate of the actual damages likely to result from such breach."

There has been a fair share of litigation in the last several decades over the enforceability of liquidated damage penalty clauses. These clauses are generally enforceable as long as it is not so disproportionate to anticipated damages as to constitute a penalty. Courts will generally enforce these clauses if (1) at the time the agreement was made, potential damages were difficult to determine, and (2) the clause was a reasonable forecast of damages expected to occur in the event of a breach. Massachusetts used to have a “second look” rule where judges could consider the state of events at the time of the breach, however, the SJC stopped that practice in 1999 in favor of a “single look” approach which only accounts for the circumstances present at contract formation.

The fatal problem for Cummings in this case was that its liquidated damage provision permitted it to have its cake and eat it too. That is, it allowed Cummings to re-lease the premises, collect rent from the new tenant without credit or offset to Hines, then on top of that, pursue all of the rent owed by Hines through the end of the 5 year term. This is akin to the “double dipping” perpetrated by said George Costanza in Seinfeld. The Appeals Court ruled that the clause allowed for such double dipping and was therefore an unfair penalty.

So what are the take-aways from this case? The obvious one for commercial landlords is don’t be a pig and chase a small business owner for tens of thousands of dollars over and above what you received in new lease funds. As far as drafting these clauses, it’s a tough one because so far humans have been unable to accurately predict future outcomes. I would say that your liquidated damage clause should have some type of caveat that the tenant will get credit for any rent received from a new tenant and be liable for the differential in rent through the end of the term. Hopefully that would work.

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Suffolk Sheriff Deputies Enforcing Eviction Order

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

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

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

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

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

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

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

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

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

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

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Justice Joseph M. Ditkoff

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

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

Take Away From Ruling

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

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

What’s Next? It Is Unclear

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

More Confusion

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

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

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LINK TO VIRTUAL HEARING LIVESTREAM CLICK HERE

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

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

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

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

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

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

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The Difference Between Winning and Losing A Real Estate Contract Lawsuit

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

Specific Performance

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

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

Obtaining Leverage — The Lis Pendens

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

Defending the Lis Pendens and Claim for Specific Performance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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6-3 Ruling Puts End to Nationwide Residential Eviction Moratorium

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

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

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

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

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

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

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

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

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

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

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Massachusetts Also Extends Certain Eviction Protections

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

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

Rental Assistance Protections and Notice to Quit Measures Extended

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

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First Known Reported Decision In Massachusetts On Private Nuisance and Paragliding

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 a local paragliding club who start flights at 6AM running through sunset. Unfortunately, it is alleged that the gliders 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 my client’s roof. One glider almost died when he crashed directly on the cliff, necessitating a complicated rescue operation. The gliders were brought before the local conservation commission and were required to implement changes and new safety protocols. Those were not followed, unfortunately.

We filed a lawsuit for private nuisance and trespass in Plymouth Superior Court, asking the Court to issue a 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 one of the lead gliders who conceded that their no-fly zone would not substantially impede glider flights in the area.

The Court issued a well-reasoned written opinion granting an injunction prohibiting all glider flights over my client’s property with a 30 foot buffer zone around my client’s property. 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. 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.

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