Navigating Massachusetts Housing Courts During the Pandemic

April 21, 2020 UPDATE:

The Massachusetts legislature has passed an eviction and foreclosure moratorium.

The moratorium will freeze non-emergency eviction and foreclosure proceedings until either one hundred twenty (120) days after April 20, 2020 or until forty five (45) days after the state of emergency declaration has been lifted, whichever is sooner.

Tenants are required to notify landlords in writing if their late rent payment(s) are due to COVID-19 related inability to pay. This is defined as both directly and indirectly related and seems to include layoffs as well as sick leaves directly related to COVID-19. This notification will only forgive late fees and penalties, not the base rent as a whole.

Once the restrictions are lifted, a tenant is required to pay their base rent in full or may face eviction proceedings.

Homeowners are also given slight relief.  They, too, are able to request relief from banks on late fees and interest above and beyond their regular obligatory payments, as well as a one-hundred-and-eighty-day forbearance. The homeowner will be responsible for these payments, which will be added to the end of the mortgage term. Banks are prohibited from beginning foreclosure proceedings during this time. This adds a protection for homeowners not otherwise available in the federal CARES act for any homeowner with a mortgage through a non-federal source.

One other provision worthy of note, landlords are now allowed to use a tenant’s last month rent for expenses related to the property. Landlords are not able to use tenant’s pre-payment of last month’s rent for the tenant’s past due rent during the state of emergency, but are allowed to utilize such payments for ongoing operating expenses, utilities or repairs. 

It is of worthy note to explain the difference between a moratorium/freeze and forgiveness. At the end of the state of emergency, both homeowners and tenants will be responsible for all of the back payments incurred. Please make sure you plan accordingly for the safety and security of your family.

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(Please note that the Housing Court situation is fluid, and we will be updating our website as new information becomes available. This information is up to date as of April 20, 2020.)

Tenants have many questions about their rights and housing during the pandemic. Guidelines, proposals, and standing orders have been dominating the news cycle with little guidance for what is implemented, what is not, and what may be in the legislative pipeline. At times, the words are used interchangeably, and we see article headlines that bring more questions than answers.

We want to ensure tenants are informed and that expectations are set for what is currently in place, and not what we may want to see on any individual level.

What’s up With the Federal Moratorium?

What protection is afforded through the CARES Act?

The CARES Act will protect a tenant from eviction due to nonpayment and/or “no cause” eviction for 120 days from enactment (March 27, 2020) if they have housing through any of the following programs:

Department of Housing and Urban Development (HUD)

• Public housing (42 USC § 1437d)
• Section 8 Housing Choice Voucher program (42 USC § 1437f)
• Section 8 project-based housing (42 USC § 1437f)
• Section 202 housing for the elderly (12 USC § 1701q)3
• Section 811 housing for people with disabilities (42 USC § 8013)
• Section 236 multifamily rental housing (12 USC § 1715z–1)
• Section 221(d)(3) Below Market Interest Rate (BMIR) housing (12 USC § 17151(d))
• HOME (42 USC § 12741 et seq.)
• Housing Opportunities for Persons with AIDS (HOPWA) (42 USC § 12901, et seq.)
• McKinney-Vento Act homelessness programs (42 USC § 11360, et seq.) 4

Department of Agriculture

• Section 515 Rural Rental Housing (42 USC § 1485)
• Sections 514 and 516 Farm Labor Housing (42 USC §§ 1484, 1486)
• Section 533 Housing Preservation Grants (42 USC § 1490m)
• Section 538 multifamily rental housing (42 USC § 1490p-2)

Department of Treasury

• Low-Income Housing Tax Credit (LIHTC) (26 USC § 42)

This moratorium also applies to tenants whose landlords have federally backed loans on their rental properties. This is not easily researched information, but information that you or your attorney can request during discovery.

(See more: https://www.nhlp.org/wp-content/uploads/2020.03.27-NHLP-CARES-Act-Eviction-Moratorium-Summary.pdf)

What’s up With the State Moratorium? 

At this time, no rent moratorium has been called or issued at the state level for the Commonwealth of Massachusetts. A bill introduced by the State’s House of Representatives that includes a moratorium was passed in the House; however, it has not passed the State Senate. Similar measures have been introduced at the city/municipality level; yet, none have passed as of the writing of this blog, and none of these measures seem to be imminent in passing.

Do not put all of your eggs into the rent moratorium basket. 

As helpful as a moratorium would be for the average tenant, and especially by those adversely affected by COVID-19, it merely is not a guarantee.

Many tenants mistake a moratorium for rent forgiveness. IT IS NOT. You still must pay your rent. A moratorium only stops late fees from accruing and delays eviction action. It does not forgive the rent payments due. Tenants will still have to pay their arrears under the law when the courts reopen for business.

We understand that currently, with all that is going on, many are struggling. Entire industries have disappeared overnight. This is not meant to be dismissive of personal economic circumstance, but instead to set realistic expectations with the most current information we have to date. Please see additional resources listed in our previous blogs for help if you are struggling financially.

But the Courts are Closed! 

The Massachusetts Housing Courts are currently closed for in-person business. They are hearing emergency motions and will be accepting electronic filings for some instances to be heard telephonically when available. Current cases have been continued beyond May 4, 2020, with dates to issue on a case by case basis. Attorneys and Pro-Se litigants will, at this time, be permitted to file beginning May 4, 2020. These hearings will be likely telephonic in nature but carry the same weight as an in-person hearing.

The Housing Courts will also be looking for greater collaboration between the parties. This means the court wanted the parties to enter into a reasonable payment plan for any arrears owed before the hearing. We understand that not all tenants and not all landlords were created equal. Reaching settlement will not look the same in every case and will not be an option in every case.

My Landlord Can’t Serve Me with a Notice to Quit, Right?

Currently process servers are serving Notices to Quit on tenants. The only moratoriums that are now in force are listed above. Those moratoriums only apply to nonpayment of rent and no-cause evictions and extend 120 days from March 27, 2020. There is nothing currently in place for many tenants to prohibit landlords from serving these Notices to Quit. Ones served on an emergency basis will likely still be held as valid in Housing Court, if the case progresses to that level.

Guidelines vs. Orders

The Massachusetts Department of Housing and Community Development has enacted a list of guidelines to landlords and property owners. From their website:

• A new $5 million special fund under the RAFT (Residential Assistance for Families in Transition) program for eligible households (families and individuals) who may face eviction, foreclosure, loss of utilities, and other housing emergencies. Full details on this under the RAFT tab below.
• Guidance to all state-aided public housing operators, including Local Housing Authorities and private operators, to suspend both pending non-essential evictions and the filing of any new non-essential evictions.
• Guidance urging operators of private, affordable housing to suspend non-essential evictions for loss of income or employment circumstances that result in a tenant’s inability to make rent. This guidance also urges operators to establish reasonable payment plans, to notify Section 8 or public housing residents about interim income recertification to adjust rent payments, and to consider offering relief funding for residents ineligible for income reassessment.
• DHCD is moving to temporarily suspend terminations of federal and state rental vouchers, including assistance provided under the Section 8 (DHCD portfolio only), Massachusetts Rental Voucher and Alternative Housing Voucher programs, in all cases other than those involving violent or drug-related criminal activity that seriously affects the health and safety of other residents.
• DHCD will also automatically extend the deadline by which a household issued a voucher must identify a housing unit where they can use the voucher. The 60-day voucher would be extended automatically until 30 calendar days past the expiration of the state of emergency.
• The Division of Banks has also released additional guidance for homeowners and financial institutions regarding foreclosure during the state of emergency. You can find more information on their website: https://www.mass.gov/orgs/division-of-banks

The guidelines help outline what behaviors should look like during this time of crisis. They do not necessarily order such behavior.

The current standing orders are:

https://www.mass.gov/housing-court-rules/housing-court-standing-order-4-20-supplement-to-housing-court-standing-orders-2

https://www.mass.gov/housing-court-rules/housing-court-standing-order-3-20-supplement-to-housing-court-standing-order-2

https://www.mass.gov/housing-court-rules/housing-court-standing-order-2-20-temporary-modifications-to-court-operations

Please note that even the bills moving through the Massachusetts legislature only, at best, delay eviction proceedings. They are also only related to income loss due to COVID-19. If there are criminal complaints and/or emergency matters, a landlord can take a tenant into court on an emergency basis even now.

Know your rights and stay informed as we navigate this crisis together. If you have any case-specific tenant or landlord questions, please call us today to book a free, remote 30-minute consultation (508) 425-6945.