Eviction Moratorium 2.0 Filed, Would Undo Rent Escrow (192 H.1434 HD3030 S.891)

By Peter Vickery, Esq. Legislative Affairs Counsel

Introduction

Is the Massachusetts legislature planning another partial eviction moratorium? Bill 192 H.1434 HD3030, titled “An Act to prevent COVID-19 evictions and foreclosures and promote an equitable housing recovery,” would come close.

The bill would make it all but impossible for judges to award possession to landlords during the State of Emergency. It would also reverse the small rent escrow victory for landlords that the state’s highest court announced in Davis v. Comerford. And it even manages to create a perverse incentive in favor of smoking. In the State House, support for 192 H.1434 HD3030 and its companion bill S.891 now amounts to 31% of the legislature (62 cosponsors at time of writing).

Pre-filing Requirements of H.1434

In order to even file summary process cases that include claims for rent/use and occupancy, 192 H.1434 HD3030 would require landlords to meet an impossible test, but which sounds reasonable. First, landlords must establish that they have made a good faith effort to obtain rental subsidies for the tenants (e.g. RAFT). Second, they must prove that there are no outstanding sanitary code violations. Third, they must prove that they have given the tenants notice of the complete affirmative defense described below.

The first two points are not our primary concern, but consider for the time being the following. First, many renters refuse to participate in RAFT out of fear, misunderstanding, or anti-landlord animosity. What constitutes a good faith effort to apply in those circumstances is not defined in 192 H.1434 HD3030.

Second, what renter at risk of COVID-19 will allow an inspector into a unit? How else can a landlord prove there are no outstanding code violations?

But never mind these first two, which are in some measure irrelevant compared to the third affirmative defense.

Complete Affirmative Defense of H.1434

In summary process cases where the landlord seeks payment of rent/use and occupancy, 192 H.1434 HD3030 would create an affirmative defense against the landlord’s claim for possession. It is worth noting that the defense comes into play not only in nonpayment cases but also in any other case that includes a claim for rent or for use and occupancy, e.g. a no-cause case where the landlord seeks payment.

This affirmative defense would be a complete defense, meaning that once the tenants establish it the landlord cannot get possession. This is true no matter how high the arrears. There are exceptions for what the bill calls “just cause,” such as where landlords can prove tenants are damaging the property or using the premises for illegal purposes. Another “just cause” would be where the landlord can show a bona fide intent use to use the property as the primary residence for themselves or a family member within 180 days. To establish “just cause,” the landlord bears the burden of proof.

What exactly constitutes this complete affirmative defense? The bill would prohibit judges from awarding possession to the landlord unless no “portion of the non-payment of rent or use and occupancy... was due to a financial hardship related to or exacerbated by the COVID-19 emergency” and the household does not include a minor (i.e. a person under the age of 18), or “a handicapped person,” or “an individual with any medical condition the Centers for Disease Control has deemed to cause increased risk of experiencing severe illness from a COVID-19 infection.”

Breaking it down, this means that to regain possession the landlord would have to prove all of the following:

• No portion of the arrears was due to a financial hardship related to or exacerbated by the COVID-19 emergency;
• No person in the household is under the age of 18;
• No person in the household is over the age of 60;
• No person in the household is a current or former cigarette smoker;
• No person in the household has a substance-use disorder, including alcohol-use disorder;
• No person in the household is pregnant; and
• No person in the household has a physical or mental impairment which substantially limits such person's ability to
• care for themselves
• perform manual tasks
• walk
• see
• hear
• speak
• breathe
• learn, or
• work

This list may strike readers as an exaggeration. It is not. Below we explain how 192 H.1434 HD3030 would make it effectively impossible for judges to award landlords possession.

Financial Hardship

Under 192 H.1434 HD3030, the threshold question for the judge is whether “any portion of the non-payment of rent or use and occupancy was due to a financial hardship related to or exacerbated by the COVID-19 emergency.” The question is not whether all, most, or even much of the nonpayment was due to financial hardship: the words are “any portion.” And the question is not whether the COVID-19 emergency was the predominant or a significant cause of the financial hardship. Rather, the question is whether the hardship is “related to” or “exacerbated by” the emergency.

Of those among us suffering a financial hardship of some kind, who could honestly say that it is not “related to or exacerbated by the COVID-19 emergency”? Proving the absence of any causal connection between a person’s financial hardship and the COVID-19 emergency is impossible. We are all impacted. As a practical matter, therefore, in any summary process case in which the landlord is seeking payment the judge’s analysis could well end at this stage.

Even if the landlord carries the burden of proving that there is no causal connection between any portion of the nonpayment and the COVID-19 emergency, the other burdens are equally heavy.

Definition of “Handicapped Person”

The judge must determine that the household does not include a “handicapped person,” i.e. a person with a disability. The drafters of 192 H.1434 HD3030 do not attempt to create a new definition of “handicapped.” Instead, they adopt the definition used in M.G.L. c. 239, s. 9, which defines “handicapped person” as a person who:

We wish everyone with a nicotine addiction will receive the treatment they need to quit. And we wish 192 H.1434 HD3030 will not pass, so that no one has a reason to start smoking. Smoking causes lung cancer, heart disease, emphysema, and may complicate pregnancy.

“(a) has a physical or mental impairment which substantially limits such person's ability to care for himself, perform manual tasks, walk, see, hear, speak, breathe, learn or work; or

(b) has a physical or mental impairment which significantly limits the housing appropriate for such person or which significantly limits such person's ability to seek new housing; or

(c) would be eligible for housing for handicapped persons under the provisions of chapter one hundred and twenty-one B.”

This three-part definition in chapter 239 has some narrow criteria and some that are quite broad. Starting at the narrow end, sub-paragraph (c) incorporates the definition in M.G.L. c. 121B, which covers “handicapped persons of low income,” i.e.

“persons whose annual net income is less than the amount necessary to enable them to maintain decent, safe and sanitary housing and who have been determined, pursuant to regulations issued by the director of housing and community development to have an impairment which is expected to be of long continued and indefinite duration, which substantially impedes the ability to live independently in conventional housing and which is of such a nature that such ability could be improved by more suitable housing conditions.”

To come within (c), the person must have an impairment that is expected to be of long continued and indefinite duration and the impairment must substantially impede the ability to live independently in conventional housing. Similarly, to come within (b) a person must have an impairment that significantly limits the housing appropriate for such person or which significantly limits such person's ability to seek new housing.

But the scope of (a) is considerably broader. This definition of “handicap” includes a person with a mental impairment that substantially limits the person’s ability to learn. This covers a considerable proportion of Massachusetts residents. According to the CDC’s disability statistics, people with “serious difficulty concentrating, remembering or making decisions” constitute 10.3% of the state’s population.

Many of us have, or know people with, learning disabilities. The fact that a member of a tenant’s household has a learning disability is not a legitimate reason to deny legal redress to the landlords. What if the landlords have a family member with a learning disability? Should that weigh in favor of awarding them possession? Of course not. So why then does a renter household with a learning disability get insulated from their obligations, when the Tenancy Preservation Program and other systems exist to help renters with such disabilities? Because at issue is not the disability at all, but the fact that these bill sponsors are only looking for an excuse to hurt housing providers.

I draw attention to this provision simply to point out that H.1434 would prevent judges from awarding possession to the landlord, no matter how high the arrears, so long as (1) any portion of the nonpayment was due to a financial hardship related to or exacerbated by the COVID-19 emergency and (2) one member of the household has a learning disability.

What Medical Conditions Cause Increased Risk of Experiencing Severe Illness from a COVID-19 Infection?

192 H.1434 HD3030 would prevent the judge from awarding possession to the landlord if the tenants’ household includes someone “with any medical condition the Centers for Disease Control has deemed to cause increased risk of experiencing severe illness from a COVID-19 infection.” Who, exactly, is at “increased risk of experiencing severe illness from a COVID-19 infection” according to the CDC? In addition to cancer, heart disease, diabetes, dementia, and obesity, the CDC website states that:

“Adults of any age with the following conditions can be more likely to get severely ill from COVID-19... Smoking: Current or Former. Being a current or former cigarette smoker can make you more likely to get severely ill from COVID-19... Substance use disorders: Having a substance use disorder (such as alcohol, opioid, or cocaine use disorder) can make you more likely to get severely ill from COVID-19.”

In addition, in the same list of conditions the CDC includes pregnancy: “Pregnant people are more likely to get severely ill from COVID-19 compared with non-pregnant people.”

To win possession, therefore, the landlord would need to prove that no person in the household is pregnant, currently has alcohol-use or opioid-use disorder, or was ever a cigarette smoker.

Many of us struggle with (or have friends or family who struggle with) substance-use disorders, or who smoke, or who are pregnant. As with the disability discussion above, the fact that a member of a tenant’s household may be somewhat immunologically impaired, without weighing that against the equally likely possibility that the landlord may be likewise impaired, is not a legitimate reason to deny access to the courts. Especially when one considers that denial of justice may in fact drive one to engage in self-destructive behaviors with respect to smoking or substances, the unfairness becomes manifest.

Consider also the perverse incentives that may be created for renters. For example, what do the drafters think will happen if you can fend off a claim for possession by being pregnant or by smoking? We humans are quite predictable.

The courts exist to decide matters of fairness, but 192 H.1434 HD3030 would in many common instances deny access to the courts.

No Rent Escrow Use and Occupancy Orders

In the 2019 decision Davis v. Comerford, the Supreme Judicial Court authorized judges to order tenants to make use and occupancy payments before trial. 192 H.1434 HD3030 would effectively ban such orders, making Davis v. Comerford a dead letter.

With 192 H.1434 HD3030, the Legislature once again threatens to close the courts and further reduce the number of housing providers in Massachusetts.

Section 2(e) of the bill would prevent the judge from ordering use-and-occupancy payments unless the landlord shows that the tenants are “not reasonably likely” to have the complete affirmative defense described above. So in order to win a motion for use and occupancy, the landlord would need to prove several negatives. The landlord would bear the burden of proving all of the following:

• No portion of the arrears was due to a financial hardship related to or exacerbated by the COVID-19 emergency;
• No person in the household is under the age of 18;
• No person in the household is over the age of 60;
• No person in the household has any medical condition the Centers for Disease Control has deemed to cause increased risk of experiencing severe illness from a COVID-19 infection, e.g. is pregnant, has a substance-use disorder, or has ever smoked cigarettes; and
• No person in the household has a physical or mental impairment which substantially limits such person's ability to
• care for themselves
• perform manual tasks
• walk
• see
• hear
• speak
• breathe
• learn or
• work

It is not realistic to expect that any landlord could carry that burden.

Stay of Proceedings on Trial Day

192 H.1434 HD3030 creates an incentive for tenants to wait until the day of trial to apply for subsidies. Under Section 3(b), if a landlord manages to get that far, the judge will have to continue the case (postpone it) if the tenants show, on the day of trial, that they have applied for a rental subsidy. No reasonable policymaker should want this outcome. We should be encouraging qualified applicants to seek public assistance promptly, not encouraging them to fall further behind with payments and deeper into debt.

192 H.1434 HD3030 Conclusion

192 H.1434 HD3030 represents a major step backward. The bill would prevent judges from awarding possession – and even from ordering tenants to make use and occupancy payments – unless the landlord can prove that all occupants are between the ages of 19 and 59, not one of them has a disability of any kind, not one of them is pregnant, not one of them has ever been a smoker, not one of them has a substance use disorder, and no portion of the arrears was due in any way to a financial hardship in any way related to or exacerbated by the COVID-19 emergency. Contrary to its title (an act to “promote an equitable housing recovery”), this is a partial eviction moratorium by another name and ought not pass.