Housing Discrimination

Massachusetts Eviction Record Sealing Bill Signed Into Law

by Rich Vetstein on August 7, 2024

in Housing Court, Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Rental Housing

Tenants Given Presumptive Right to Seal Certain Eviction Records; Strict Rules Imposed On Credit Reporting Agencies; Landlords May Lose Invaluable Tenant Screening Tool

After years of lobbying, tenant advocates finally got a long-sought after eviction sealing measure through the Legislature and signed by Governor Healey as part of the recently passed Affordable Homes Act. Gov. Healey signed the measure into law on August 6. Under the bill, tenants will have the right to seal eviction records from public view (and landlord screening efforts) and get them removed from their credit reports. Additionally, credit reporting agencies will face strict rules and stiff penalties for disclosing sealed eviction records, which may put them out of the business of tenant screening altogether. Advocates say this will help tenants obtain housing without the chilling effect of an eviction record typically caused by economic hardship. Housing providers counter that eviction records are a crucial screening tool for landlords, and without it they may ask prospective renters to show a higher credit score or income in order to qualify. The key with this new measure is that in the vast majority of cases, the burden is on the tenant to initiate the court record sealing process – if they don’t do that, then the record will remain publicly available. But if they do file a petition to seal, it will typically be a very quick and easy process to get the record seal and removed from credit reports, and in many cases, the landlord will not even realize that it happened.

With a 270 waiting period, the law goes into effect on May 5, 2025. There are different court record sealing procedures for different types of eviction cases, outlined below, and the Housing and District Courts will need to create new forms under this law. I’ve posted the new bill at the end of this article.

No Fault Cases

No-fault cases are defined as evictions when a landlord terminates a tenancy at will or after a lease expires where no unpaid rent or material violation of a lease provision is claimed by the landlord. No fault cases also include an “action brought after termination of a tenancy for economic, business or other reasons not constituting a violation of the terms of the tenancy.” This situation would typically involve a decision by the landlord to sell the leased property.

In a no-fault case, a tenant may file a petition to seal the eviction record, with notice provided to the landlord. If no objection is filed within 7 days of filing the petition, the Housing or District Court will approve the petition administratively without a hearing. It will be interesting to see how the courts verify whether the landlord has been properly notified, if at all. My sense is that enforcement here will be quite lax.

Non-Payment of Rent Cases

Eviction sealing is available in non-payment of rent cases where a tenant has a clean eviction record for the last 4 years. The tenant must certify that the nonpayment of rent was due to economic hardship which rendered them unable to satisfy the judgment. Notice of record sealing must be provided to the landlord, and an objection must be filed within 7 days of the petition filing. If no objection is made, the court will presumptively order sealing of the record. If an objection is filed, the court must conduct a hearing to determine whether the nonpayment is due to economic hardship and may require the tenant to file a financial statement.

In cases where the tenant has paid up under a payment agreement or judgment, landlords are obligated to file with the court a satisfaction of judgment within 14 days of full payment. If the landlord doesn’t file the satisfaction, the tenant may petition for the entry of a satisfaction of judgment. Upon entry of the satisfaction, a tenant may petition immediately for sealing of the court record under the process above.

At Fault/For Cause Cases

In so-called at-fault and for cause cases (including nuisance/drug/criminal cases brought under Chapter 139, section 19), a tenant may petition for court record sealing if he or she has a clean eviction record for 7 years. At-fault/for cause cases typically involve serious violations of a lease or tenancy, such as drug or criminal activity, excessive noise, smoking, housekeeping, and behavioral problems. The filing procedure is the same as described above, with at fault/for cause cases presumptively approved where the landlord does not file an objection within 7 days of the petition filing. However, for Chapter 139, sec. 19 cases, a court hearing is required to determine whether the tenant has been charged with any crimes and sealing is in the interests of justice and public safety.

Dismissed Cases/Judgments In Favor of Tenant

In cases which have been dismissed or where the tenant wins and receives a judgment in their favor, the tenant may file a petition to seal the court record immediately without any notice to the landlord. These petitions will be administratively granted without a hearing.

I’ve flagged this provision as problematic because non-payment cases are often dismissed if a tenant moves out voluntarily, or shortly after a payment plan is completed or if the case is old. Tenants may be able to use this loophole to get cases sealed even if they do not presumptively qualify are able to skirt the 4 or 7 year waiting period.

Credit Reporting Agencies

In a far-reaching provision, Consumer Reporting agencies will need to comply with very strict limitations on using sealed (and un-sealed) eviction records in consumer credit reports. Credit agencies cannot disclose sealed records “unless the court record was available for inspection with the court within 30 days of the report date.” This provision is unclear and confusing, but I think the intended policy is that sealed records should not be available on credit reports. Credit agencies must remove from a credit report any information related to a sealed eviction court record within 30 days of sealing. (I’m not sure how agencies are going to monitor this). But the bill goes even further, requiring credit agencies, who collect non-sealed eviction court records, to list the exact type of eviction action on the credit report (i.e., no-fault, nonpayment, or for cause). This would require that credit agencies actually pull the court docket and make a determination of the type of case, which they are essentially incapable of doing unless they hire a small army of lawyers (which they likely won’t do). Tenants can recover actual damages and attorneys’ fees against credit agencies for violations of these new rules, and the Attorney General also has oversight jurisdiction. The net effect of these new rules will likely be that credit report agencies doing business in Massachusetts will stop collecting eviction records all together.

Rental Application Disclosure Language

The new measure also mandates that all tenant rental applications contain the following new language: “An applicant for housing or credit with a sealed record on file with the court pursuant to section of chapter 239 of the General Laws may answer ‘no record’ to an inquiry relative to that sealed court record.”

What’s Next?

As mentioned above, the measure does not go into effect until May 2025, and that’s probably a good thing because the courts need to create new forms, and the credit agencies have a lot of internal changes they will need to make. Same for landlords and rental agents. While I was writing this up, a colleague asked me this question: “If a record is sealed, does that prevent it from being a “hit” on the 4 or 7 year look-back periods when/if a tenant petitions for a record to be sealed?” My answer (as least right now) is that if a record is sealed, it appears that there should be no “hit” at all for any of the look back periods. Now this is in theory, and I think what will actually happen is either credit agencies will remove all eviction “hits” altogether from their MA reports, or there will be a big lag between what’s on the reports and what’s supposed to be sealed, and the onus will likely be on the tenants (or the courts ….good luck with that) to fix that. Since it’s Massachusetts, I’m sure it will be the usual mess! So we’ll see how this will shake out once the law goes live.  

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If you are a landlord and have any questions about this new Massachusetts tenant screening law, please contact me at [email protected].

Massachusetts Eviction Sealing Bill New GL c. 239 s. 16 by Richard Vetstein on Scribd

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Joint Housing Committee To Hear Controversial Housing Stability Act, Rent Control, And Other Tenant Protection Bills On Jan. 11

by Rich Vetstein on January 6, 2022

in COVID-19, Housing Court, Housing Discrimination, Landlord Tenant Law, Rental Housing

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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Boston Globe Magazine’s Hit Piece On Evictions Riddled With Misleading Statistics, Bias

by Rich Vetstein on February 25, 2019

in Affordable Housing/40B, Housing Court, Housing Discrimination, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

Accurate Court Data Shows The “Eviction Crisis” Is A Fallacy

You may have noticed the featured article in Sunday’s Boston Globe Magazine on the supposed “eviction crisis” in Massachusetts. Titled “As rents soar in Boston, low-income tenants try to stave off eviction,” investigative reporter Jenifer McKim cited inaccurate court statistics to create the false narrative that thousands of innocent tenants are being thrown out on the street by greedy landlords. Using this fallacy, McKim then advocates for a new legislative proposal giving all tenants (but not landlords) a “Right to Counsel” i.e, free legal representation courtesy of the Massachusetts taxpayer. I’m not a fan of the term “fake news,” but it is really justified here. Where do I begin?

McKim first claims that “eviction initiations in Massachusetts spiked in 2008, following the Great Recession. Each year since then, landlords have sued about 40,000 heads of household across the state seeking to evict them, according to data gathered by the New England Center for Investigative Reporting.”

Well, she’s totally wrong and does not know how to read court statistics. Take Fiscal Year 2018 for example. Housing Court publicly available data shows 29,684 summary process cases filed. Summary process is how Massachusetts defines an eviction case. There were about 10,000 other types of cases filed in Housing Court (code violations, search warrants, small claims and civil money actions) but those are not evictions. So she’s already off by 10,000 cases or 25% of her cited data. To the extent she’s using district court filings, one would have to determine whether those were residential or commercial. Commercial evictions are always filed in the district court. Making that important distinction would entail physically reviewing each case file which she didn’t do. So you can’t reasonably rely on that data either.

Second, one would also have to account for Housing Court’s recent expansion to statewide jurisdiction which has increased its filings while district court filings are down. Actually as you can see from the PDF linked above, summary process filings in Housing Court were trending down and level from ’14 to ’15, to ’16 and to ’17, but then slightly up for ’18 (by only 6% or so) because of the statewide jurisdiction enactment. Eviction filings in District Court were down about 10% in 2018. So McKim is being intellectually dishonest if she’s attributing the slight bump in Housing Court filings in ’18 as some sort of trend of increased evictions. The overall trend has been down and level, as you can see below in the chart I quickly created. Sure doesn’t look like a crisis to me…

Then McKim makes the most egregious inaccurate statement: “The state doesn’t track how many of these have resulted in actual evictions, but the Eviction Lab at Princeton University found that in 2016, there were roughly 15,708 forced removals in Massachusetts — an average of nearly 43 a day. That’s about double the number of evictions in 2005, before the housing bubble burst…”

This is another totally bogus statistic. She’s right, the state does not track the number forced removals (accurately called a levy on an execution for possession). Researching that would entail physically reviewing every single eviction case in the state — 6 separate Housing Court divisions and in our roughly 80 district courts. Did Princeton University send a small army of interns checking every case file for 2016? That’s the only way they could accurately conclude that there were 15,708 “forced removals,” however they are defining that. So I was curious and did some research. After some digging I found the Princeton Eviction Lab’s Report on Methodology, and no surprise, their researchers relied on online available statistics, and as McKim acknowledged, you cannot see if there was a forced move out from the basic online data. I can tell you that in my 20 years of experience handling thousands of evictions, forced move outs are around 1-2% of all cases. It is the rare exception indeed because it costs landlords no less than $3,000 for movers and storage costs. The vast majority of cases are either default no-shows or negotiated move out agreements.

So the truth is that there is nowhere near 43 forced removals per day in Massachusetts, as McKim claims. Not. Even. Close.

Also, the number of evictions has not “doubled” since 2005, as McKim states. In 2005, there were approximately 30,000 total eviction cases filed (and this includes commercial cases which cannot be carved out without reviewing the case files). In 2018, there were about 40,000 total cases filed (again, this includes commercial cases). So McKim is off by 20,000 cases. And of course, the vast majority of all eviction cases are resolved amicably between the parties, without the need for a forced move out. I find it incredulous that highly regarded Boston Globe investigative reporters would be so sloppy with these critical statistics which are publicly available online.

Lastly, Ms. McKim interviewed me for a solid hour on this story, but only used a small snippet of my extensive commentary on the issue, pertaining to how I’ve been physically threatened by tenants in Housing Court. Yes unfortunately this is true. But I’ve been practicing in the Housing Courts for 20 years now and I gave her a small treatise of information which she ignored for her article. Ms. McKim also extensively interviewed Doug Quattroci, the Executive Director of the largest trade association for landlords, MassLandlords.net. Mr. Quattroci has led our lobbying efforts to level the playing field for landlords and offered extensive data on the topics Ms. McKim was writing about. None of Mr. Quatrocci’s comments made it into the article. Contrast that with paragraph upon paragraph dedicated to the tenant side of the story. I e-mailed Ms. McKim about all of these inaccuracies and her response was “feel free to write a letter to the editor.” I gave her an “LOL” on that one!

Ms. McKim’s article was certainly not fair and balanced, in my humble opinion. I guess we can’t expect that from the Boston Globe these days, can we? How sad.

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Fines Coming For “No More Than Four” Boston Student Housing Rule Violations?

by Rich Vetstein on August 25, 2016

in Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Rental Housing

IMG_0105

Rule Prohibits No More Than 4 Undergraduate Students Per Rental Unit

With thousands of college students set to invade Boston in the next week, the Chief of Boston’s Inspectional Services Department is letting local landlords know that he intends to enforce an eight year old ordinance barring no more than four undergraduate students from living together in off-campus apartments and houses.

Feeling pressure from local residents and in reaction to the tragic death of 22-year-old Boston University senior Binland Lee, who got trapped in an overcrowded Allston apartment house, ISD Chief William Christopher has had enough, saying “we’ve found a way to make this punitive, and we think this will take it to another level.” City officials want landlords to report the number of undergraduates living in each unit. Landlords would report that information when they register each unit annually, which is a requirement the city established in 2013.

Mr. Christopher and I discussed the “No More Than 4” rule on the WHGH-PBS Greater Boston show this week. The video of the show can be seen below. I have always had major problems with this rule, both its legality and on a public policy level. The state sanitary and building codes provide maximum occupancy levels based on the square footage of the unit, as the Supreme Judicial Court held a few years ago striking down a similar action by Worcester Housing officials. The city should enforce the rules already on the books rather than painting all undergraduate students as potential troublemakers or artificially creating more demand which increases rents. If ISD starts fining landlords, look for the no more than 4 rule to face a legal challenge which could be successful.

 

 

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Landlords Cannot Refuse to Rent to Criminals, Says HUD

by Rich Vetstein on May 3, 2016

in Housing Discrimination, HUD, Landlord Tenant Law, Massachusetts Real Estate Law, Premises Liability, Rental Housing

criminal-background-checkWidespread Racial Disparities In Criminal Justice System Justifies New Policy

Last week the Obama administration released new controversial Fair Housing guidelines telling the nation’s landlords that it may be discriminatory for them to refuse to rent to those with criminal records. The U.S. Department of Housing and Urban Development (HUD) says refusing to rent based on a criminal record is a form of racial discrimination, due to racial imbalances in the U.S. justice system, despite the fact that criminal history is not a protected class under the federal Fair Housing Act.

“The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin, or other protected characteristics,” say HUD’s newly-released guidelines. “Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African-Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification.” About 25 percent of Americans have some kind of criminal record, which can range from felony convictions to arrests that never led to charges.

HUD says that landlords may be allowed to bar those with criminal records, but they will have to prove that such a policy is necessary for protecting the safety of other tenants, and designed to avoid illegal discrimination. The new guidance recommends that landlords consider factors such as the severity of the criminal history and how long ago it occurred.

Practice Pointer: Blanket prohibitions denying applicants with criminal histories will get landlords into major trouble under the new HUD policy.

 HUD’s revised guidance discusses the three steps used to analyze claims that a housing provider’s use of criminal history to deny housing opportunities results in a discriminatory effect in violation of the Act.
  • Evaluating whether the criminal history policy or practice has a discriminatory effect
  • Evaluating whether the challenged policy or practice is necessary to achieve a substantial, legitimate, nondiscriminatory interest
  • Evaluating whether there is a less discriminatory alternative

Policy Places Burden On Small Landlords

I’m all for giving people a second chance at life, but the major problem with this policy is that it puts the onus and burden on the small landlord to do the criminal history check and then figure out how severe the offense is and what the underlying circumstances are. Also the policy does not advise a landlord exactly how old a crime is to be considered “too old.”

In Massachusetts, a CORI (Criminal Offender Record Information) report contains only the basic of information of the offense such as the date of arrest/conviction, disposition, court and sentence, if any. There is nothing in the CORI report showing the underlying facts of the crime and it does not include police reports. Thus, for a charge of open and lewd conduct, a landlord does not know whether this is a serious offense or just a college kid urinating in an alley. Under the new HUD policy, landlords now have the burden of playing criminal investigator and assessing whether a crime is not truly serious.

Also, please remember that under the so-called Mrs. Murphy exemption, the federal Fair Housing Act does not apply to owner-occupied rental properties of up to 4 units.

What Now?

So how are landlords going to navigate this new policy? Well, first I would expect that risk-adverse landlords will cut down or stop requesting criminal history information all together. Of course, this puts landlords in a dilemma because they retain a legal duty to keep residents safe, and if they rent out to a known sexual offender, for example, who attacks another resident, they can be sued for millions.

For those who still ask for criminal record information, they will have to offer an applicant the opportunity to explain the circumstances of their arrest/conviction before making a final decision. As with all rental application decisions, it’s best to make the decision rest on financial considerations such as credit, income, and employment.

If you need guidance navigating this new policy, feel free to contact me at [email protected].

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Maria Theophilis Confirmed As New Housing Court Judge

by Rich Vetstein on February 17, 2016

in Housing Court, Housing Discrimination, Landlord Tenant Law

DSC_0418Gov. 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.

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Speaking On November 3, 2015 – Boston Real Estate Investors Association

by Rich Vetstein on October 27, 2015

in Housing Court, Housing Discrimination, Landlord Tenant Law, Leasing, Rental Housing

ls.jpgI will be speaking about Rental Legal Trends and Security Deposits at the monthly Boston Real Estate Investors Association meeting on November 3, 2015 at the Hilton Hotel – Dedham, 25 Allied Drive, Dedham, MA. Time:  5:30PM-9PM.

Agenda below. It is FREE for anyone who mentions my name!

5:30 PM –  “Meeting Before The Meeting” – Multifamily Investing with Charles Dobens

6:30 PM – Registration & Vendor Area Open

7:00 – 7:30 pm – Announcements, Deal Making, Speed Networking

7:30 – 8:00 pm –  What You Need To Know BEFORE Placing An Offer. Lee Abdella of Walsh Home Inspections will address what you should look for before putting an offer in on a house or before waiting your home inspection!

8:00 – 9:00 pm  – Mass Security Deposit and Rental Law with Richard D. Vetstein Esq.

Boston Real Estate Investors Association on Facebook

I look forward to seeing you next week!

-Rich

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Speaking at the MRHA Annual Conference on Saturday May 30

by Rich Vetstein on May 20, 2015

in Housing Court, Housing Discrimination, Landlord Tenant Law, Rental Housing

MRHAI am honored to be one of four fantastic speakers at the Massachusetts Rental Housing Association (MRHA) Annual Meeting and Conference on Saturday, May 30, 9AM-1PM at the Embassy Suites, 550 Winter Street, Waltham, MA.

My presentation will be “War Stories from the Eviction Court Trenches.” I will retell some colorful stories from my career handling over 5,000 evictions throughout the Commonwealth, as well as talk about my thoughts for fixing the system going forward.

Other speakers include:

Jamie Williamson, Commissioner, Massachusetts Commission on Discrimination(MCAD). Fair Housing Laws and How to Avoid Lawsuits

We have all heard of the large penalties inflicted upon unsuspecting landlords who are not aware of fair housing  laws, protected classes of people and discrimination red flags. Ms. Williamson is a Commissioner of the Massachusetts Commission on Discrimination(MCAD) and her presentation is not to be missed.

Marcus Papajohn, Financial Planner, www.MarcusPapajohn.com, The Good, the Bad and the Ugly, Estate Planning for Landlords 

How do you plan your estate of  income properties? Whether your properties total $200,000 or $2,000,000, whether you are  25 years old or 52 years old or 82 years old, whether you have children or not, you are wise to have an estate plan. Mr. Papajohn is a financial planner who has worked with MRHA for many years.

Mark Leger, MRHA Legislative Chair

Do you charge late fees? Have you had the “free rent” trick played on you? If “survivors of domestic abuse” become a protected class, will you be able to evict them? Mr. Leger explains landlord bills before the Massachusetts legislature that will effect the way you conduct your rental property business.

Click here to Register for the Conference. 

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The Landlord Strikes Back! AG’s $38,000 Craigslist Rental Discrimination Penalty Struck Down

by Rich Vetstein on March 10, 2015

in Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Rental Housing

NickCLRAttorney General’s Office Accused of Smearing Local Landlords In Press

A Craigslist rental ad posted online for merely 8 days turned into a complete nightmare for a Melrose father and son who claim that Attorney General Martha Coakley’s office ran roughshod over their rights and tried to smear their reputations in the local newspapers. After a five year legal saga, the landlords, Nicholas Keramaris (pictured right) and George Keramaris, fought back and won, convincing the Appeals Court to overturn a $38,000 civil penalty and attorneys’ fees assessed against them.

“Apartment Is Not De-Leaded”

The Keramaris family trust owns a 20 unit apartment building in Melrose. All of the units originally contained lead paint, and five of the apartments have been deleaded. One of the leaded units became available for rent, and Nicholas Keramaris, who is also an attorney, researched the lead paint laws prior to posting an advertisement on Craigslist stating “Note that this apartment is not de-leaded, and therefore it cannot be rented to families with children under six years old.”

A Melrose mother, who did not have a child under six and who did not attempt to rent the advertised apartment, filed a complaint with the MCAD about the ad. (This could have been a dummy renter employed to find fair housing violations). Once the landlords were notified of the complaint, they took the ad off Craigslist. It ran for a grand total of 8 days.

1379349493000-martha-coakleyAG’s Office Steps In

Attorney General Martha Coakley’s Office then stepped in and filed a civil action for discriminatory rental practices, seeking penalties and damages under the state Consumer Protection Act, Chapter 93A. According to the Keramaris family, “from the day that the Assistant Attorney General assumed responsibility over the case, he insisted on collection of steep penalties as a condition for settlement. Also, the Attorney General’s office publicly smeared us through repeated press releases while the case was pending. Our request for the Attorney General’s office to stop issuing negative press releases was described as a “non-starter” for settlement negotiations. Therefore, this very simple case, which involved a relatively benign violation, dragged on for almost five years.”

Award Struck Down

Despite the fact that the ad ran for only 8 days and no one was actually harmed, the Attorney General was able to persuade a Superior Court judge to assess an aware of nearly $38,000 in penalties and attorneys’ fees. Unwilling to accept this unjust result, the Keramaris family appealed and got the justice they deserved.

Employing some well needed common sense, the three judge appellate panel concluded that although the ad technically violated the lead paint discrimination statute, any harm done was minimal and did not rise to the egregious level of a Consumer Protection Act violation. In a rare ruling, the judges ruled that the lower court abused its discretion, finding that this was nothing but a good faith mistake by landlords who were not intentionally setting out to violate the law. The Appeals Court ultimately stuck down the entire award, leaving the Keramaris family with justice, albeit after 5 long years and I’m sure thousands in legal fees.

Where’s the Discretion?

I have handled numerous rental discrimination cases involving the Attorney General’s Office. The one thing I can say is that they often have a very one sided view of cases and suffer from tunnel vision. They also hardly ever exercise their discretion to back down. It’s usually all or nothing. I would like to see them try to see both sides of the coin in future cases and be more open to negotiated settlements. Maybe this ruling will encourage that. I won’t hold my breath though.

And lastly, I’m curious if the Attorney General will issue a press release announcing that the Appeals Court overturned this award? I doubt it.

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Expanded Eviction and Debt Collection Court Records Now Available Online

by Rich Vetstein on December 24, 2014

in Housing Court, Housing Discrimination, Landlord Tenant Law, Leasing, Rental Housing

computer-searchLandlords Get Useful Tenant Screening Tool for Massachusetts District Court Records

In a much anticipated announcement, expanded online court docket information is now available for all district courts in Massachusetts including records on evictions, small claims, civil, and supplementary process (collection actions) cases. The website is Masscourts.org. It is free to use.

Using this site, landlords can check to see if prospective tenants have been involved in any prior evictions or have been sued by creditors. Housing Court dockets have already been available for about a year.

The only downside to the site is that users must search each individual court separately. My advice for landlords is to match the court with the prospective tenant’s former address and check to see if they were previously involved in any summary process or debt collection lawsuits.

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SJC To Consider Marijuana Possession In Rental Housing

by Rich Vetstein on April 5, 2014

in Condominium Law, Housing Court, Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Medical Marijuana, Rental Housing

Decision Could Have Wide Impact Upon Marijuana Use By Tenants

The law on marijuana and rental housing remains clouded to say the least. And that’s no pun. This week on April 8th, the Supreme Judicial Court will consider the first of probably many cases dealing with marijuana use in rental housing. In this particular case, Boston Housing Authority v. Figgs (SJC 11532), the high court will assess whether a state housing authority may evict a subsidized tenant and terminate her federal housing benefits for the alleged possession of less than one ounce of marijuana — which is no longer a criminal offense in Massachusetts, but still a crime under federal law. With the decriminalization of small amounts of marijuana, the rollout of the medical marijuana dispensaries and the conflict with federal drug laws, this case may have wide-ranging impacts upon the relationships of landlords, tenants, housing authorities and even condominium owners and trustees over the use of marijuana, both recreationally and medicinally.

Oral arguments are available via live stream here. Legal briefs and filings in the case can be found here. A final opinion and ruling is expected this summer.

This case should also put the new Medical Marijuana Law into re-focus. Landlords have been increasingly anxious about how to manage and regulate tenants’ use of medical and recreational marijuana, if at all. The law not only grants qualified patients the right to obtain medical marijuana but it also allows patients the right to grow a two-month supply of marijuana at home if they cannot get to a marijuana dispensary because they are too sick or too broke. There is a bill in the Legislature granting landlords the right to prohibit medical marijuana on rental property without fear of being sued for disability discrimination.

I’ll be monitoring this new and dynamic area of the law. It will surely be a hot topic in the next couple of years.

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100316_photo_vetstein (2)-1Richard D. Vetstein, Esq. is an experience Massachusetts landlord tenant and real estate attorney. If you are concerned or have questions about the new Medical Marijuana Law, please contact him at[email protected].

 

 

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Asking “Where Are You From?” Results In $60,000 Rental Discrimination Penalty

by Rich Vetstein on January 26, 2014

in Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Realtors, Rental Housing

Where-are-you-from-512x273Innocent Small Talk Apparently Illegal, According to Boston Fair Housing Commission

The seemingly innocent question posed by a Boston rental agent to Gladys Linder when they were searching for an apartment was “Where are you from?”

“Venezuela,” she answered.

Gladys and her husband went on to find an apartment a month later without further incident. But she found the question about her national origin insulting and upsetting.

This is Massachusetts, and you know what came next.

Stokel filed a complaint with the Boston Fair Housing Commission, claiming that rental agent’s question was discriminatory and caused her to suffer fear, anxiety and sleeplessness over a three-year period.

Seriously?

Massachusetts General Laws Chapter 151B and the Boston Fair Housing Commission Regulations make it illegal for any licensed real estate broker “to cause to be made any written or oral inquiry or record concerning . . . national origin.”

Although this was the agent’s first discrimination complaint and there was no discriminatory impact on the tenants at all, the Commission found that the question itself was unlawful and issued one of the largest penalties I have seen in recent years — $10,000 in emotional distress damages, plus $44,000 in attorney’s fees and costs and a $7,500 civil penalty against the broker — a whopping $61,500 in total liability for this single question, not to mention the tens of thousands the agent had to pay for defense legal fees.

The ruling can be found here:  Linder v. Boston Fair Housing Commission, Mass. Appeals Court (Dec. 17, 2013).

Appeals Court Uses Some Much Needed Common Sense

The case went up on appeal, and fortunately the Massachusetts Appeals Court exercised some common sense and slashed the award, likely by more than half pending further proceedings. But the court let stand the commission’s ruling that the one innocuous question did indeed violate the discrimination laws. So the broker will remain on the hook for a sizable liability.

Honestly, I’m having a lot of trouble with this ruling. It appears that the broker was simply engaging in some harmless small talk by asking the applicant where she was from. There was no evidence that the broker refused to rent to her or took any other discriminatory action against them. What if the applicant had a Southern accent and said she was from Alabama? That’s not illegal discrimination, but since she is from another county, it makes the question unlawful discrimination? Unbelievable! This is one of those cases where the anti-discrimination laws result in a totally absurd result.

So thank you to the Boston Fair Housing Commission for making small talk illegal. Unfortunately, the lesson to be learned from this case for rental agents and Realtors: Don’t ask a client where they are from. I kid you not. Only in Massachusetts…

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100316_photo_vetstein-2.pngRichard D. Vetstein, Esq. is an experienced Massachusetts real estate attorney who often consults with Realtors and rental agents on their legal and ethical duties. He can be reached at [email protected].

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SJC Rules Housing Court Can Hear Title Challenges In Post-Foreclosure Evictions

by Rich Vetstein on December 18, 2013

in Foreclosure, Housing Court, Housing Discrimination, Landlord Tenant Law, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages, Title Defects

Foreclosure2-300x225.jpgHousing Courts Will Likely Face Increased Caseload

Giving an early Christmas present to distressed homeowners, the Supreme Judicial Court today ruled that a foreclosed upon homeowner may challenge a bank’s title and foreclosure sale irregularities through counterclaims in a post-foreclosure eviction in the Housing Court — rather than being forced to file a separate equity lawsuit in the Superior Court. The case is Bank of America v. Rosa, SJC-11330 (Dec. 18, 2013).

The high court also held that the Housing Court has jurisdiction to hear other counterclaims against foreclosing lenders, including fair housing, consumer protection (Chapter 93A), and HAMP related claims.

The likely impact of this ruling will be that the already busy Housing Court will now be “Ground Zero” for foreclosure related litigation. Foreclosed property owners will have more weapons to delay and prevent being evicted after foreclosures.

Overall, while the ruling seeks to protect the rights of foreclosed property owners, it has the potential to delay the housing recovery in Massachusetts. The longer folks who don’t pay their mortgages are allowed to live rent free in their foreclosed houses, the more the housing market suffers. There are plenty of creditworthy buyers and investors willing and able to buy up and rehab these foreclosed properties. Letting them sit and blight neighborhoods doesn’t help anyone in the long run. Just my opinion…

The ruling is embedded below. (Click for link).

Bank of America v. Rosa

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Massachusetts Housing Court And Tenant Eviction History Now Online

by Rich Vetstein on April 24, 2013

in Housing Court, Housing Discrimination, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

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.

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RDV-profile-picture-larger-150x150.jpgRichard D. Vetstein, Esq. is an experienced Massachusetts landlord tenant and eviction attorney. You can contact him at [email protected] or 508-620-5352.

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Boston Area Landlord Hit With $75,000 Penalty Over Lead Paint Violations

by Rich Vetstein on March 16, 2013

in Disclosures, Housing Discrimination, Landlord Tenant Law, Lead Paint, Massachusetts Real Estate Law, Premises Liability, Safety

Largest Lead Paint Penalty On Record for Attorney General Coakley

Landlords with lead paint beware…enforcement of the state’s strict Lead Paint Law remains a priority for Attorney General Coakley’s office. The AG just hit a Boston area property owner with the largest fine on record — $75,000 — and ordered him to de-lead his rental units, resolving allegations that he engaged in a pattern of unlawful and retaliatory practices against tenants with young children in order to avoid his obligation to comply with state lead paint laws. The AG’s press release can be read here.

The offending landlord is Keith L. Miller, of Newton, who at the time owned and managed at least 24 residential rental units in Chelsea, Newton, Arlington, and Brighton. This is the largest fair housing settlement with a landlord that has been reached under AG Coakley.

The Massachusetts Lead Paint Law, one of the strictest in the U.S., imposes a mandatory obligation to de-lead if there is a child under 6 residing in the rental premises. A property owner or real estate agent cannot get around the law simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. And property owners cannot refuse to rent simply because they do not want to spend the money to de-lead the property. Any of these acts is a violation of the Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.

The state has several lead paint financial assistance programs to help landlords pay for de-leading costs which can be quite expensive.

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New Massachusetts Domestic Violence Law Allows Victims To Break Leases, Have Locks Changed

by Rich Vetstein on January 12, 2013

in Condominium Law, Housing Discrimination, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Premises Liability, Rental Housing

alg-domestic-violence-illustration-jpgUnder the new Massachusetts Domestic Violence Act recently signed into law, victims of sexual assault and stalking have the right to break their leases without significant financial penalty, have the landlord change their locks, and other important protections. The important provisions of the new law are as follows:

  • In order to break a lease, victims are required to provide notice to landlords that they were subject to a sexual assault or rape or under imminent threat of same within three (3) months of the incident
  • Landlords may request supporting documentation such as a police report or restraining order (which they must keep confidential).
  • Provided the tenant victim provides the proper notice, she will be relieve of financial liability for 30 days or one full rental period of rent, plus a return of any last month’s rent and security deposit.
  • The new law applies to anyone in the renter’s household.
  • Victims of sexual assault or stalking may require that the landlord change the unit’s locks within 48 hours at the tenant’s expense. If the landlord fails to act, the tenant may change the locks herself.
  • If the perpetrator of the sex crime or threat is a household member (i.e., spouse/boyfriend), the landlord may authorize the lock-out the perpetrator by changing the locks and withholding the new key.
  • Landlord’s who comply with the new law are generally absolved from liability to the perpetrator.
  • Noncompliance with the new law can result in damages equal to 3x the rental amount, plus payment of the tenant’s legal fees, which may be set off against any unpaid rent.

The bill, as finally passed, was signed off by both tenant and landlord industry groups, after several years of debate. A link to the new Massachusetts domestic violence law can be found here. 

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RDV-profile-picture-larger-150x150.jpgRichard D. Vetstein, Esq. is a Massachusetts real estate attorney who frequently advises landlords on their legal obligations under Massachusetts landlord and tenant law.

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Massachusetts Landlords Smoking Mad About New Medicinal Marijuana Law

by Rich Vetstein on November 10, 2012

in Housing Discrimination, Landlord Tenant Law, Massachusetts Real Estate Law, Medical Marijuana, Rental Housing, Safety

Concern Over 60 Day Supply Provision & Federal Ban On Pot

Burned up Massachusetts landlords are fuming with concern over the state’s newly passed but hazy medicinal marijuana law. The law — rolling out Jan. 1 — grants medical marijuana users the right to grow a two-month supply of weed at home if they cannot get to a marijuana dispensary because they are too sick or too broke. The new law also potentially opens landlords up to federal prosecution for violating the federal controlled substances laws.

Skip Schloming, executive director of the state’s Small Property Owners Association, expressed deep concern about the 60-day supply provision:

“You could have as many as 24 plants that are 6 feet tall,” Schloming told the Herald. “And that could cause all sorts of property damage, from water damage, to mold and humidity, to wiring issues that could cause a fire. … This has the potential to be a disaster.”

The SPOA called for a 6 month delay in implementing the law.

I hate to be a “buzz kill” for medical marijuana users, but I believe the landlords have a legitimate gripe. In the landlord-tenant context, landlords own the property and remain primarily responsible for what goes on in their apartment buildings. I’m no weed expert, but imagine a small studio apartment loaded with a veritable jungle of pot plants — a prospect which would frighten any residential landlord for a number of reasons.

First, a medical marijuana grower could be targeted for burglarization. If they are truly sick and broke enough to qualify as home growers, then they would be equally vulnerable to pot bandits stealing their stash.

Second, maintaining marijuana cultivation requires specialized equipment not necessarily compatible with close-knit apartment living. I did some research, and found this website dedicated to hydroponic growing equipment. Growing marijuana plants is fairly sophisticated. Growers need to monitor pH and moisture levels, carbon dioxide outputs and germination of seeds. Failure of this equipment could conceivably cause mold, mildew and other damage to interior units.

Bay State landlords are also concerned about running afoul of federal drug laws as marijuana remains a federally prohibited controlled substance. Landlords are begging Beacon Hill lawmakers to give them the right to refuse to rent to tenants who grow pot for medical use over fears their property could be seized. As reported in the Boston Herald, commercial and residential landlords are right to worry, drug forfeiture attorneys say, because landlords can be charged as conspirators if their tenants are targeted by the feds.

No matter landlords’ concerns, medical marijuana is here to stay in Massachusetts. It will be up to the state Department of Public Health — the same agency rocked by the highly publicized state crime lab fiasco — to enact sensible rules and regulations governing medical marijuana. Let’s hope that the DPH considers the practicalities and logistics for marijuana growing in tight-knit apartment buildings. Strict rules on home growing eligibility are a must. Same for the approval of safe, tested growing equipment. Immunizing landlords from liability for medical marijuana growing or use by tenants would be another good idea.

We will see how it all plays out on Beacon Hill…

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Richard D. Vetstein, Esq. is a Massachusetts real estate attorney who handles landlord-tenant matters and evictions throughout the state. He can be reached at [email protected].

 

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Worcester Catholic Church Pulled Out of Mansion Sale To Prevent Gay Marriages, Lawsuit Says

by Rich Vetstein on September 10, 2012

in Condominium Law, Disclosures, Housing Discrimination, Massachusetts Real Estate Law, Purchase and Sale Agreements, Real Estate Litigation

Worcester Diocese Allegedly Pulled Out of Deal Over Possibility Of Gay Marriages at Mansion

James Fairbanks and Alain Beret, married business partners from Sutton, had been searching for the perfect property for nearly two years when they discovered Oakhurst, an aging mansion on 26 beautiful acres in Northbridge. The former retreat center, which was affiliated with the Diocese of Worcester and had been on the market for some time, would be the ideal spot for their next venture: an inn that would host weddings and other big events, as reported by the Boston Globe. When the Diocese of Worcester unexpectedly dropped out of negotiations with them in June, Fairbanks and Beret were shocked — and flummoxed. Then, they say, a church attorney inadvertently forwarded their broker an e-mail from Monsignor Thomas Sullivan, chancellor of the diocese, advising a church broker that he was no longer interested in selling to Fairbanks and Beret “because of a potentiality of gay marriages” there.

Sullivan wrote: “I just went down the hall and discussed it with the bishop.  Because of the potentiality of gay marriages there, something you shared with us yesterday, we are not interested in going forward with these buyers. I think they’re shaky anyway. So, just tell them that we will not accept their revised plan and the diocese is making new plans for the property. You find the language.”

Today, the gay couple filed what could be a landmark lawsuit in Worcester Superior Court against Sullivan, the bishop, the church’s real estate agent, and the nonprofit retreat center, the House of Affirmation, alleging they discriminated against Beret and Fairbanks on the basis of sexual orientation in the course of a real estate negotiation, violating state law. A copy of the Complaint in Fairbanks, et al. v. Roman Catholic Bishop of Worcester, et al. is embedded below.

A spokesperson for the church told the Globe that the church, as a matter of policy, will not sell properties where Masses have been celebrated to people who plan to host same-sex weddings. The church will not sell to developers who plan to transform them into abortion clinics either, he said — or to bars, lounges, or other kinds of uses that church officials deem inappropriate. “We wouldn’t sell our churches and our properties to any of a number of things that would reflect badly on the church,” he said. “These buildings are sacred to the memory of Catholics.”

In an even more ironic twist, the Diocese previously used the mansion for a retreat center for pedophile priests, according to Banker & Tradesman.

Watching this case play out will certainly be very interesting both from a legal and political perspective. Massachusetts — the birthplace of gay marriage — is one of the few states in the country which outlaws housing discrimination based on sexual orientation. One of the questions will be whether the Church is covered under the anti-discrimination law given their historical stance against homosexuals and gay marriage.

Also, as I pointed out to a reporter covering this story, the church could have negotiated a restriction on the future use of the property, which is common for sales involving open space, recreational use and such. It appears that the church did not do this, but instead came up with a pre-textual reason after the fact to support their decision not to proceed with the sale due to the gay marriage issue. We will be monitoring this interesting case!

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Richard D. Vetstein, Esq. is a Massachusetts real estate attorney with offices in Framingham and Needham, Mass. He can be reached at [email protected].

Complaint | Fairbanks v. Roman Catholic Bishop of Worcester, Mass.

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The Renters Are Back! Questions You Can and Cannot Ask Prospective Tenants In Massachusetts

by Rich Vetstein on August 30, 2012

in Housing Discrimination, Landlord Tenant Law, Lead Paint, Leasing, Massachusetts Real Estate Law, Realtors, Rental Housing

School is back and summer is over. September 1 and the start of the new rental cycle is right around the corner. It’s time to review my best practices to get trouble-free, paying tenants in your Massachusetts rental property.

Screening Prospective Massachusetts Renters: What You Can and Cannot Ask

Landlords can legally ask prospective renters about the following:

  • income and current employment
  • prior landlord references
  • credit history
  • criminal history

Your rental application should include a full release of all credit history and CORI (Criminal Offender Registry Information). Use CORI information with caution, however, and offer the tenant an opportunity to explain any issues. Landlords should also check the Sex Offender Registry as they can be held liable for renting to a known offender. Use the rental application and other forms from the Greater Boston Real Estate Board.

Landlords cannot ask about the following:

  • race, color, national origin, ancestry, or gender
  • sexual orientation
  • age
  • marital status
  • religion
  • military/veteran status
  • disability, receipt of public assistance
  • children.

If you deny a renter’s application, it should be based on financial reasons, such as questionable credit, income or rental history. Stay away from reasons related to children, public assistance and the like. Be aware that this time of year the Massachusetts Commission Against Discrimination and Attorney General’s Office send out dummy rental applicants in an attempt to catch unwary landlords who deny housing for discriminatory reasons.

Students, especially undergraduates, often create problems for landlords. It’s important to meet with students personally before signing the lease and firmly explain a “no tolerance” policy against excessive noise, parties and misbehavior. Remember, under a two year old Boston zoning ordinance, no more than four (4) full time undergraduate students may live together in a single apartment.

Careful screening of tenants is far less expensive than the cost of evicting a problem tenant.

My Property Has Lead Paint. Can I Refuse To Rent to Tenants With Small Kids?

The answer is no, but many landlords do so (unlawfully) under the guise of financial reasons. The Attorney General has been cracking down on these practice:  Two Local Real Estate Firms Fined By Mass. Attorney General For Lead Paint Housing Discrimination.

Under the Massachusetts Lead Paint Law, whenever a child under six years of age comes to live in a rental property, the property owner has a responsibility to discover whether there is any lead paint on the property and to de-lead to protect the young children living there. A property owner or real estate agent cannot get around the legal requirements to disclose information about known lead hazards simply by refusing to rent to families with young children. They also cannot refuse to renew the lease of a pregnant woman or a family with young children just because a property may contain lead hazards. Landlords cannot refuse to rent simply because they do not want to spend the money to de-lead the property. Any of these acts is a violation of the Lead Law, the Consumer Protection Act, and various Massachusetts anti-discrimination statutes that can have serious penalties for a property owner or real estate agent.

For more information about Massachusetts rental screening, landlord-tenant law and evictions, please read these articles or contact me below. I would be happy to help you get good tenants.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate and eviction attorney. For more information, please contact him at 508-620-5352 or [email protected].

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The Pregnant Woman, The Newest Lending Credit Risk: Discrimination or Fair Lending?

by Rich Vetstein on August 10, 2010

in Housing Discrimination, HUD, Massachusetts Real Estate Law, Mortgages

By Karen Rabinovici, UConn Law ’12

It seems more outdated than hair scrunchies, something we witnessed years ago: discrimination against pregnant women seeking mortgage loans. Apparently it’s still going on and worse than ever which is why the U.S. Department of Housing and Urban Development (HUD) is investigating numerous cases of alleged pregnancy discrimination in lending. The New York Times recently wrote about it: Seeking a Mortgage, Don’t Get Pregnant.

Spurred by the financial crisis, lenders have created more stringent guidelines for granting loans to borrowers looking to buy homes, and have zoned in on pregnant women, essentially deeming them to be liabilities. Lenders are equivocating maternity leave with unemployment, which results in automatic disqualification or reduced buying power for a loan. Although some women on maternity leave can be entitled to temporary disability insurance, this disability insurance may not be used as qualifying income because it is allocated for a period of time less than three years. Women who are on maternity for only a few weeks are also affected, so the range of women denied loans is vast.

In the past, maternity leave was considered a break from work and was not taken into account when considering whether or not to grant a loan. In this financial climate, however, maternity leave has come to be viewed differently – as complete unemployment. So, lenders will not approve a loan until the mother is officially back at work. This subjects women to more red tape:  providing documents from their employers specifying the length of their maternity leave and the date of their return to work, as well as letters from their doctors, and other information deemed relevant.

These new guidelines have resulted in too many claims of discrimination from pregnant women to ignore, and thus has resulted in the HUD investigation. If HUD concludes that discrimination against pregnant women and new mothers is indeed taking place, this could be a violation of the Fair Housing Act, one purpose of which is to protect families.

Some results of all this are that families are forced to wait until the mother returns to work (possibly rushing maternity leave), families are altogether giving up on buying homes, or families are purchasing homes that they can afford on one salary.

Families are feeling punished for having babies, and the irony that most families are buying new homes in the first place because they are expecting children does not fail to come through.

While tougher standards for approving loans have become an obvious step to take by lenders, these types of resulting consequences walk a dangerous line between what needs to be done, and unfair treatment towards one group of people. In either case, the allegations of discrimination against pregnant women reek of the sexism that was rampant in the professional world decades ago.

What do you think? Are pregnant women being treated unfairly, or are they indeed a liability to lenders because of the income gap resulting from their maternity leave?

Related Articles:

Pregnant Women Losing Out On Home Loans, Change.org

Pregnant Women Denied Loans? Realtor.com

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