The Moratorium pauses all “non-essential” evictions. A non-essential eviction is an eviction for:
for non-payment of rent;
resulting from a foreclosure;
for no fault or no cause; or
for cause that does not involve or include allegations of:
criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or
lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.
Landlords are prohibited from serving a notice to quit, filing a summons and complaint, enforcing an existing execution, or proceeding in court for all cases except those identified in item 4. Existing cases are essentially paused until the Moratorium expires. The Moratorium expires on the later of: 1) August 18, 2020, or 2) forty-five (45) days after the COVID-19 emergency declaration has been lifted, whichever is sooner. An unusual feature of the law is that the Governor may extend the law in up to ninety (90) day increments, not to exceed forty-five (45) days after the COVID-19 emergency declaration has been lifted. Governor Baker has extended the Moratorium through October 17, 2020. The practical effect is that the Moratorium is indefinite in length.
As noted above, evictions may proceed for lease violations or criminal activity that impacts the health and safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property, or the general public. We should consider some examples:
Example 1: A tenant is constructing or storing incendiary devices on the property. This activity is illegal and it impacts the health and safety of the persons protected by the Moratorium. It would seem that an eviction could proceed under those facts.
Example 2: A tenant has a dog in the apartment which violates the terms of the lease. This activity is not illegal and it does not impact the health and safety of the persons protected by the moratorium. This eviction could not proceed under these facts.
Example 3: A tenant Is operating an unlicensed at home business in violation of the lease. The activity is illegal because it is unlicensed and it may impact the health and safety of the persons protected by the moratorium since it invites outside public onto the property which increases the likelihood of spreading COVID-19 to other residents. Further, some types of professions are highly regulated to protect the public. Performing such a profession unlicensed may be deemed to impact the health and safety of persons lawfully on the property and the general public. These facts may entitle the landlord to proceed with an eviction.
The natural question is “what is a landlord to do?” The Moratorium specifically states that “Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.” As most landlords know, most judgements against tenants go unpaid. While impractical, a suit for breach of contract for non-payment or rent may proceed in spite of the Moratorium. A landlord may also see equitable relief. For instance, if a tenant is damaging an apartment, a landlord may bring a suit for breach of contract and ask the court to enjoin the tenant from making further damage. If the tenant continues, the landlord may request that the tenant be held in contempt. Each of these remedies lacks the punch that an eviction provides a landlord. The Moratorium provides relief to some landlords by prohibiting certain foreclosures.
Legal challenges to the Moratorium have already taken place. In Matorin et al v. Commonwealth of Massachusetts, et al, Suffolk Sup. Ct. CA 2084CV01334, Judge Paul D. Wilson denied the Plaintiffs’ motion for a preliminary injunction. Click here to read the full text of the decision. Judge Wilson’s decision carefully considered the Plaintiffs’ constitutional claims including: 1) separation of powers under Article 30 of the Massachusetts Declaration of Rights, 2) Access to the Courts under Article 11 of the Massachusetts Declaration of Rihts, 3) Taking of Real Estate under Article 10 of the Massachusetts Declaration of Rights. Judge Wilson found that the Plaintiffs are unlikely to succeed on the merits of their claims, they are unlikely to suffer irreparable harm, and the balance of harms and public interest favor upholding the Moratorium.
The Plaintiffs in the Matorin case also filed suit in the United States District Court District of Massachusetts. See. Baptiste et al v. Commonwealth of Massachusetts et al, CA 1:20-CV-11335. The Plaintiffs are seeking a preliminary injunction. While Judge Wolf has not issued a ruling on the Plaintiffs’ motion, the Plaintiffs’ motion may be read here. Plaintiffs argue that the Moratorium violates their rights under the First Amendment to the U.S. Constitution, the Moratorium is a taking of real property in violation of the Fifth Amendment to the U.S. Constitution, and Violates the Contracts Clause under Art. 1. § 10 of the U.S. Constitution. Judge Wolf is likely to issue a ruling on the motion at any time.
The Moratorium has significantly limited the availability of evictions in Massachusetts. If you would like to discuss the Moratorium, contact Benjamin Cote.
Remember the moratorium of evictions from back in April? Gov. Baker extended this law until October 17th, or 45 days after the state of emergency is lifted, and it could be extended more. Tenants still cannot be evicted for failure to pay rent. We encourage you to communicate fairly with them, remind them to pay what they can so their debts don’t damage their credit, and try to be understanding.
If you have any questions about being a landlord in MA, contact us by calling (781) 319-1900.
Mark Stiles spoke with the folks at WATD to discuss how COVID-19 has been changing and transforming the real estate industry locally. He touches on Stiles Law’s use of the drive-through option to handle refinance closings, remote ink sign notarizations, how his team has adapted in order to succeed, and the decline of the open house in our current climate and perhaps for good. Listen for more.
If you have any questions contact us by calling (781) 319-1900.
A few months back we talked about navigating the pandemic as a landlord. Here’s some updated information on that topic.
In April Massachusetts put a moratorium on evictions. Under this state law, evictions are broken into two categories: essential and nonessential. Essential evictions represent a very small category of cases including crimes endangering the health and safety or the people involved. Most cases are considered nonessential currently, including failure to pay rent, regardless if a tenant was behind on payments before the moratorium came into action.
Communication between tenants and landlords is still important and encouraged. If a landlord does plan to reach out to their tenants in written form, there is a guide for specific language that must be used in order to keep the message clear and to protect the landlord from being accused of violating the COVID-19 emergency statute.
Tenants are still obligated to pay their rent; the money continues to be owed when the moratorium is lifted. This is not a law of rent forgiveness. They should be encouraged to pay even a small portion towards rent to avoid a huge lump sum due in the end.
At the end of the day, a lease is still a contract and if tenants attempt to avoid the money that is owed by moving, they would be breaching contract. Whatever is owed is still owed, and landlords can take action against the tenant for the breach.
For more information about navigating the pandemic as a landlord, call us at (781) 391-1900.
Coming to you from the outdoor drive-through closing area at Stiles Law is an update on RON or Remote Online Notarization, which we had a video about a few weeks back. Massachusetts legislature passed what they’re calling Remote Ink Notarization (RIN). This helps us with handling notarization remotely. So contact us to take care of your real estate transactions or estate plans that have been on hold at (781) 319-1900.