Fair and Equal Housing Guarantee via Surety Bonds
A "Fair and Equal Housing Guarantee via Surety Bonds" is a landscape-changing policy that would guarantee rental housing during the pandemic and simultaneously address the housing crisis.
Eligible landlords would purchase surety bonds to guarantee full rent for every rental unit affected by COVID-19. In exchange for a guarantee of being paid back, however long it takes, landlords cannot evict for nonpayment.
The bonds would be paid for and underwritten by the Commonwealth, specifically by a $300 million increase in the Chapter 64 excise tax applied only to deeds for land zoned single family. According to MLS, $27 billion worth of single family deeds were transferred in 2019. The tax is a small part of conventional closing costs and can be financed.
To avoid the tax, simply convert the single-family zoned lot to multifamily as-of-right.
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Background Reading
If you are not familiar with why we are advocating for a surety bond, see the following resources first:
- Massachusetts Eviction Moratorium: Full Explanation and FAQ, May 7, 2020
- Eviction Moratorium Response: Board Vote for Surety Bond, May 5, 2020.
Additional resources:
- FAQ, petition, and powerpoint on how surety bonds will work
- Eviction Moratorium Survey Results: 22% of Providers Unable to Pay for Housing, April 17, 2020
- Housing Surety Bond Spreadsheet Models Costs Now, Savings Later, May 4, 2020.
- Estimates of Post-Moratorium Eviction Filings Now Exceed Housing Court Annual Caseload, May 27, 2020.
About the lawsuits:
- MassLandlords is lobbying for statewide surety (this page).
- Third parties are litigating to overturn the eviction moratorium; they are not funded or supported by MassLandlords.
Members can log in for additional participation options, like providing testimonials.
Video: Rent-payment surety bond pilot program
Bill: Rent payment surety bond pilot program
Host:
Douglas Quattrochi - Doug
[Start 0:00:00]
Presenter: Rent Payment Surety Bond Pilot Program, so one of the many problems with the eviction moratorium was that it was unfunded. The eviction moratorium stopped housing providers from getting to court, and it stopped renters from getting access to housing court as well.
Perhaps the biggest problem was in addition to the principle of the eviction moratorium was the dollars and cents issue of the legislature saying, two renters in Chapter 65 saying in the statute, “Yes, you really have to pay rent, and if you don’t…” and it’s silent as to what happens if you don’t because landlords could not take renters to court for nonpayment of rent, and if they didn’t, bad luck.
We wanted to come up with a market-based solution to a government failure. Very often in public policy, what you’ll hear people talking about, even come up with a policy solution to a market failure, and here we have a market-based solution to a government failure because the eviction moratorium and the response to the aftermath of that, even though RAFT and ERMA are helpful, a market-based solution would be better.
It would just the principle of the thing is important, and I’ll explain why in a little more detail in a moment, but what we hope to do with this bill is establish a pilot program as opposed to just shoving this on the Commonwealth as a whole and seeing if it works. We're suggesting a pilot program that EOHED would administer and giving them a lot of leeway as to how expansive and extensive the pilot program would be to see whether this idea of underwriting rent payment bonds basically a subsidy by another name works. We want to see whether it works.
Here's what the bill looks like. There are some definitions of lesser and less sea and rent payment, surety bond, so lessors landlords; lessee tenants basically, and rent payment surety bond that's something that's actually available on the market in some jurisdictions and maybe some available in Massachusetts right now, a bond conditioned on payment of rent or use and occupancy payments by a lessee to a lessor.
The idea would be that uh it's akin to a form of insurance. You would say to the bond company I would you to guarantee that my tenant will pay the rent or that rather if my tenant doesn't pay the rent, you'll pick up the tab and pay in their stead. You will stand in the shoes of the tenant and you will pay the rent instead of them if for any reason they default, so that's what a rent payment surety bond is. It is a bond company standing in the shoes of the tenant who is defaulting on rent and paying the housing provider in their stead.
Now why is that not an appealing economic prospect right now for bond providers? Well the peril that would be insured against has already been made manifest. It’s similar to you know if a tree falls through my roof, me calling the insurance company the next day and saying, “You know I really wish looking back that we'd insured against this particular peril, but we didn't. Could I now buy insurance to insure me against the prospect of the tree falling through my roof, that thing that happened last night?”
No. The insurance company is not going to do that because the peril has already made manifest, so they would be paying for something that the risk of it happening is a hundred percent. There isn't a market for this kind of product right now in Massachusetts because the default risk is so high and certainly was much higher during the eviction moratorium.
So how do you sweeten the deal for people who are in the business of selling rent payment, surety bonds? You underwrite them, so what we'd like to do is have the secretary of housing and economic development establish a pilot program to test the viability and efficacy. That's important to test see whether this works of allowing housing providers to purchase this kind of product, this kind of insurance product from companies that already licensed in Massachusetts to transact business and we want the pilot program to reflect the geographic, racial, and ethnic diversity of the Commonwealth, so we don't want them to run the test just in say Amherst, or Leominster. It’s fine if they run it in Worcester obviously, but we want some diversity to this pilot program and it would have to be funded.
[0:05:25]
The next part of the bill establishes the fund, establishes a kind of a pot of money, so in the architecture of a piece of legislation that even though in Massachusetts the legislature can appropriate money and that's not something we can do through ballot initiative. When you're writing a bill that you want the legislature to enact, it's okay to say where the money should come from and our bill does that.
Our bill says that there'll be a rental payment surety bond guarantee fund and the legislature can appropriate money to it and they can borrow for it. They can issue bonds to fund it, so our bill says there will be a fund, and then the bill says that the secretary must ensure that companies are authorized to transact business in Massachusetts and that they will pay up to $10 million. They will guarantee surety companies against losses.
The goal here is to have the surety bond companies paying it well by having the public pay at both ends, having the public pay the housing provider the cost of the premium for buying this bond in the first place, buying the surety bond and then in the event that the renter defaults if the tenant stops paying because of COVID-19 or government response thereto to have the surety bond company pay the rent for the renter, and then the Commonwealth, meaning the taxpayers of the Commonwealth pick up the tab so that's what we would like to happen.
It’s like RAFT in ERMA in the sense of it's a public subsidy, but it's a market-based solution that doesn't require a new government agency to run it or the expansion of an existing agency. It’s using the private sector to try to fix a government-created problem. This one, this part of the statute sets some standards. One of the most important ones I think—
It's on the screen. I won't read the entire thing for you.
But I think that the most important provision here is that uh there's already a residential dwelling and there's already a lease or a rental agreement. Why would we want to do that? Well, we want to prevent fraud obviously. We want to prevent people taking advantage of this new surety bond guarantee just to make money at the public's expense. Does this really happen yes and the example that policymakers nowadays often have in mind when they're putting provisions like this into bills is what was called the not very long ago, the Cash for Ash Scandal in Northern Ireland when the government of Northern Ireland said, “We really want to encourage people to adopt wood pellet stoves because this is very good for the environment and this will help combat climate change. We want more people to buy wood pellet stoves and we will subsidize them to the extent of a hundred and plus percent.”
So you go out buy a wood pellet stove and you get reimbursed for that and all the wood pellets you bought for it, you'd get reimbursed for that and then some. What do you know, people started heating sheds in the middle of nowhere. They started building structures that were completely unnecessary, they would build them ramshackle structures just in order to put a stove in them and heat the thing and get paid for that, so it was a scam.
That's the kind of invitation to abuse that we want to avoid, so our bill does that. There has to already be a written lease or tenancy-at-will, a written agreement, and we also go into some detail about what kind of evidence will be sufficient, and the burden is on us housing providers to show that the lessee's reason for nonpayment for renters, the tenant's reason for nonpayment is COVID-19 or government response thereto. It's not just an open invitation to stop paying rent. You have to be able to establish that the reason for not paying rent was COVID-19 or policy responses thereto.
[0:10:14]
Moving on to the next part. “The department shall promulgate regulations to make sure that necessary forms are available.” this is pretty standard language. The next part is not in all pilot programs. It should be I think, E I think is an invaluable provision, the department shall review the results and outcomes and provide annual reports.
We want to know if this is efficacious. We want to know whether it solves the problem that we hope it will solve. That's the point of a pilot program to see whether it really works. All too often in politics, a program will take off and it will just never come back to earth and just keep throwing money at it to mix metaphors and the program just keeps going even if it's not efficacious, even if it doesn't have the effect that policy proponents wanted it to have said it would have.
We should judge policies by their effects, by their outcomes, not by the intentions of their proponents but that's what we want. We want our rental payment surety bond pilot program to work and we want to know whether it's working so we have this provision in there to gauge its effectiveness. Of course we want to make sure that people aren't being taken to court for nonpayment of rent when there is a rent payment surety bond in place that that could cover the rent, so we have something similar to the new Chapter 257 that says if there's an application for a subsidy for RAFT subsidy pending, the case is not going to move forward.
By the way sidebar, Doug encouraged you to take the initiative and apply for RAFT on behalf of tenants and he listed some really important reasons for doing that. Let me add one more as a practitioner. If you've initiated the summary process case and you're sort of slowly staggering toward the finish line. It takes a long time now I know, and at any point even on the day of trial or after trial, on the day that you think you're going to get execution, the tenant can apply for a subsidy. They could have refused up until that point and then at the very last moment apply for the subsidy and that puts everything on hold. That’s the kind of headache you don't want, so it really does make a lot of sense tactically to get that application in early, okay so that's what we would like to happen in our rental surety bond pilot program bill.
Now let me pause that.
Doug: Before we move on. Yes, we have from another Peter. We have some maybe misunderstanding or maybe suggestion or question, but other Peter says, “Usually the  insurance concept is risk management, so the client invests X amount in the form of a premium in exchange for a possible insurance payout in the event of a disaster or unpaid rent. Are we not considering that the landlord might pay a modest premium and then just have insurance backed by the Commonwealth but administered by the surety bond companies?”
I think that is exactly what we're suggesting, right?
Presenter: Yes, although we're also suggesting that the Commonwealth repay the housing provider for the cost of the of the premium, so yes that is that's exactly what was suggesting only that landlord should not pay it out of pocket.
Doug: So we haven't been very prescriptive but you could imagine the state coming up with a procedure whereby the landlord cash out of pocket, pays for the bond, and then submits to reimbursement from DHCD or whomever, and then that's what triggers the initial underwriting by the state. We aren't very clear on the money flow because we want the state to have conversations and figure out how that should work, right?
Presenter: Yes, because we're MassLandlords, not Mass Surety Bonds, and there are things that we don't know and we want to strike the right balance between setting the broad policy parameters and leaving the regulatory body to fill in the details, but not just going overboard and leaving it all to the regulatory body. That's an important rule of law issue and it's an important practical issue.
We want to we want to provide important guidelines, but we also want to acknowledge that the expertise lies with the industry and with the bodies, the administrative agencies that regulate the industry, they will know better than we, the bill drafters, how to make this work properly, so it's a somewhat detailed bill but it's not nearly so detailed as the regulations would be. It's a fine balance to strike and I hope we've struck the right one. I know we haven't struck the perfect balance. It's a human-made product, but I think we've just about got it right.
[0:15:28]
Doug: All right great and then the second follow-on to that comment is, “Well really this could be extended to just cover market tenants regardless of COVID impact. If the state wanted to expand on this idea and say we're going to guarantee housing to everybody, that would certainly be an extension of a successful pilot, right?
Presenter: It would wouldn't it and I think one of the one of the co-benefits of a pilot like this succeeding would be to sort of shift the mentality of the political class in Massachusetts toward these market-based solutions to government assisted if not always government-created problems rather than saying okay let's set up a new agency or a new section within agency X in order to deal with this trying to find ways of enabling encouraging private sector responses and shifting the mentality somewhat. We can't shift the number of seats, but perhaps we can shift the mindset of some policymakers over time in favor of market-based solutions where the private sector can do something better.
You know there's this saying that government is what we do together. It's partly true government one of the things that we do together uh markets is something else we do together as a society and sometimes we do things better when we're acting through markets than we do when we're acting through government agencies, so one of the co-benefits of this bill is to encourage that sort of thinking that yes okay perhaps there's an industry out there that could fix this problem better than the very laudable and dedicated people of the Department of Housing and Community Development. Maybe there are insurance industry experts who could do this better.
Doug: All right so let's we'll get that filed.
[End 0:17:12]
