Individual Claims Council/Detailed Rent Survey
We are using this form to attempt to help desperate owners as well as to collect data from other owners who do not want specific legal input at this time.
Intake and Data Gathering
As of October 29th, 2020 the intake/survey process has been completed. Thank you for your time and participation.
$572,580.53 in unpaid rent.
59 owners, 765 units reporting as of October 19.
Percentage of units with nonpayment: 18.9% of respondent rental housing
(average 13 units per owner).
Median arrears: $2,364
Average arrears: $4,169
Minimum arrears: $89.78
Maximum arrears: $44,615.00
Statement of Guiding Principles
During the pandemic stay-at-home order, people needed to have a home to stay in. And during the medical and economic recovery that lies ahead, the Commonwealth’s residents may need this housing for a long while yet to come. We have said from the beginning that this shared burden should be covered by the Commonwealth as a whole. No one should be evicted because of the pandemic or its aftermath. No housing provider should be asked to provide this needed public housing for free, to pay for upcoming months or years of repairs, real estate taxes, utilities, and mortgages without income.
The eviction moratorium is a Band-Aid, but stitches are required. We have developed and found funding for a Fair and Equal Housing Guarantee via Surety Bonds, but none in leadership have agreed to file it. We have asked the Governor not to extend the moratorium, but he has extended it to October and may extend it again after that. The amount of rent relief so far organized from federal, state, and municipal sources seems to be adding up to less than 10% of the funding that will be required by the time we get through this.
We turned to the courts to make it clear, on a case-by-case basis, how much damage has been done. But the courts have left us almost no options. We believe that together the Commonwealth can keep us all housed. The primary purpose of this form is data gathering and political application.
This initiative will run in parallel to our continued advocacy for a Fair and Equal Housing Guarantee via Surety Bonds.
Frequently Asked Questions
What is the Individual Claims Council?
The individual claims council is a network of attorneys available to guide housing providers to make legal and political claims for the state to pay for COVID-19 related rent arrears. The goal is to avoid court and eviction for all affected renters. MassLandlords staff have access to aggregate statistics and initial data entry only.
We are using this detailed form to collect data on rental businesses even if you are not looking for specific legal help at this time.
Who is on the Individual Claims Council?
MassLandlords staff are overseeing intake. A network of attorneys are overseeing cases (as of October 2, four firms were working with participants). The attorneys available to housing providers can be selected at the conclusion of intake or assigned by MassLandlords. The attorney list will change depending on caseload and availability. All attorneys cover all parts of the state.
Who can use this form?
Any housing provider with unpaid rent may enter their data:
- Nonpayment began before COVID-19;
- Nonpayment began during COVID-19 but was not documented due to COVID-19;
- Nonpayment began during COVID-19 and was documented; and/or
- All other nonpayment.
Can I use the form if I have unpaid rent but don’t want to make a legal claim?
Yes, you can submit your data and leave all the legal checkboxes at the end blank.
What claim is it possible for housing providers to make?
There are no longer any good options. The primary purpose of this form is data gathering.
Respondents will assert under the pains and penalties of perjury that one or more households owes rent. Each owner, manager, landlord, housing provider, etc. faces a particular set of circumstances that may best be resolved by trying some or all of the avenues open to them. Submitting information and checking the legal boxes at the end does not mean a housing provider will initiate a lawsuit against the Commonwealth. All actions are subject to housing provider review in consultation with the assigned attorney. The result of submitting a claim might be:
- A legal offer of settlement from the Commonwealth for reimbursement of back rent;
- A court order for the Commonwealth to reimburse the housing provider;
- A court order for a renter to complete an application for RAFT;
- A court order for the Commonwealth to accept a RAFT application submitted by a housing provider on behalf of a renter;
- A state or municipal guarantee to assume the renter’s back rent obligation; or
- Other possibilities, including political (legislative) solutions prompted by this process.
When will this form be open?
Intake opened on September 10 and will run indefinitely. Claims must be submitted on or before midnight October 16 to reserve all anticipated legal rights. Data gathering can continue after that.
Where else can I apply?
Leave a voicemail at 774-314-1896 to ask for a paper application or for voice assistance with submitting an electronic application.
Why is MassLandlords doing this?
No one should be evicted due to COVID-19 or its aftermath. The people who have the power to prevent the tidal wave of evictions have not to date seemed sufficiently motivated to come up with lasting solutions, indeed planning at the highest levels seems to be acceptance of the current legal framework that is generating the tidal wave. The Legislature created the unfunded eviction moratorium, the executive signed it and extended it. The courts are going to get dragged along with it. Housing providers are going to quit. And renters are going to be evicted. Everyone loses, but it doesn’t have to be this way.
How long does it take to enter data in the form?
It will take approximately fifteen minutes for one unit, or one minute for each additional unit.
What information should I have before starting?
Have a copy of the rental agreement so that you can easily determine tenancy start date, contract rent amount, address, and names of renters. Have a rent roll or other financial records that shows rent owed as of today. Have knowledge of the legal owner of each property, including who exactly is listed on the deed. Know whether a unit has been filed against already, has applied for RAFT, or has lease violations other than nonpayment.
This is not your typical survey, this is a detailed assessment with possible legal and media applications.
If I submit my data, will it be public?
No, all data is kept confidential. If you check the box to participate in media appearances, we will be in touch and any given requested appearance can be declined when offered.
Can I submit my data if I have no unpaid rent?
Yes, please! We need to know the truth of the situation. Having data from all landlords in all situations is the best.
Webinar: Individual Claims Council Intake
Individual Claims Council Webinar
Peter Vickery – Peter
Douglas Quattrochi – Doug
Doug: Alright, good afternoon everyone. We will just give a minute here for folks to load into the webinar.
Good afternoon, folks. We will just give it another minute while we wait for attendees to load into the Zoom software.
One more minute while we wait for everyone to load into the Zoom software here.
All right, so we will get started. Just a quick note about how our webinars work. Everyone starts on mute. If we know that you’d like to share some prearranged remarks we can unmute you, but we don’t have that planned for this session. If you’d like to ask any questions, just click the Q&A tool. Chat has been disabled for this event because we want to make sure with an open event with no password protection essentially that no ticket purchase required, I mean to say that we have a productive experience for everyone who’s participating. But if you want to talk to me if you have questions, as the technical host, just type into the Q&A box there.
A quick note about MassLandlords. We are a 501(c)6 trade association. Our mission is to create better rental housing by helping owners run profitable, compliant, quality businesses. We need to make money to provide housing year after year. We want to follow all the laws to be effective advocates to change them, and we want to be proud to be associated with one another.
We are democratically governed. We’ve got an annual election of board of directors coming up in December, and in anytime, members can participate in our ongoing policy priorities survey. We’ve got over 1,900 members, 6,000 subscribers, and 200,000 annual website visitors.
Just a quick note. If you’re not already a member, please join. Everything we do is supported by membership dues and our policy work in particular is supported by the Property Rights Supporter Program, which is voluntary additional donations on top of dues.
Before I introduce our featured speaker, let me just make a quick note here. This webinar is being recorded as the official presentation of the Individual Claims Council. I will get off in just one minute here, but I’m going to be the technical host and also the representative for all questions, so I’ll be interjecting as we go through to try to address common concerns and issues specially if you’re chatting at me via the Q&A feature, I will try to get those included here in the official record, and we will have time in the end for more freeform Q&A.
So our featured presenter today is Peter Vickery. He is our legislative affairs counsel at MassLandlords. His firm is Bobrowski & Vickery, LLC. He practices law in western Massachusetts, really now statewide virtually where he focuses on landlord-tenant law, representing landlords in housing court and discrimination defense, representing businessowners at the Massachusetts Commission Against Discrimination.
He graduated from Oxford University Jesus College with a BA in Modern History, obtained his postgraduate diploma in law from the University of the West of England in Bristol, his JD from Boston University School of Law, and his Master’s in Public Policy and Administration from the University of Massachusetts Amherst.
Attorney Vickery served one term on the Governor’s Council, the elected eight-member body that approves or vetoes the governor’s choice of judges for the Commonwealth and he also served in the State Ballot Law Commission. As legislative affairs counsel for MassLandlords, he drafts bills, reviews bill texts, he creates bill summaries, and writes testimony for us in housing law particularly and also raised amicus brief. We’ve done a couple now, most recently for the eviction moratorium. Anything that has legal significance for property owners, our Legislative Affairs Counsel, Peter Vickery, is on top of it.
We don’t have anniversaries to announce at this webinar because of the free un-ticketed nature of it. So with that, I would turn it over to Attorney Peter Vickery. Go ahead and share your screen.
Peter: I’ll do that right now. Thank you, Doug, and thank you all for tuning in, and particular thanks to your Property Rights Supporters.
[I’m just going to move things around a little on my screen, so I can start the slideshow, so bear with me.]
Thank you to Doug for mentioning that he’ll be interjecting from time to time. He’s not being rude. We talked about this. We really want him to jump in with your questions, so please if I said something that isn’t there or something you think needs to be explained right away, please use the Q&A and Doug will stop me, or he will stop me if there is something I’ve said that just doesn’t make any sense. I hope that won’t be often.
But anyway, individual claims, possible responses to the Massachusetts Partial Eviction Moratorium. Let me pause there. I say partial eviction moratorium because as you know, Chapter 65 doesn’t prohibit all eviction in Massachusetts. There is a caveat for instances where the tenant’s criminal activity or lease violations may impact the health or safety of another person, which the courts are construing as meaning is an ongoing threat for the health or safety of another person. That aside, tenants can’t be evicted.
We have some options that I’d like to discuss in this webinar. Some political options and some litigative options, so outside the courthouse and inside the courthouse. The political options are discussed in a moment. The litigative options, while I present those, I’m going to try to get some context by explaining the way that the police power has an effect on our rights. It doesn’t mean that our rights are diminished or evaporated, but there is a tension between our rights and the police power. I’m going to mention something called Civil Asset Forfeiture, which isn’t anything to do with an eviction moratorium but helps explain the state of property rights in Massachusetts, which I think will be helpful as you decide on the next steps.
In litigative options. I’ll also be discussion a couple of legal theories, regulatory takings and how the Civil Defense Act plays into one of the steps that landlords, housing providers in Massachusetts but particularly MassLandlords members will decide to go forward, so politics and litigation.
We are at something of a crossroads. It doesn’t mean we have to choose either or but we do stand at a crossroads and anytime I think of crossroads, I’m reminded of this quote by the great Woody Allen who said, “More than any other time in history, mankind faces a crossroads. One path leads to despair and utter hopelessness. The other to total extinction. Let us pray we have the wisdom to choose correctly.”
It’s not that bad. It’s a tough situation here in Massachusetts for housing providers, but we don’t face the choice between despair and utter hopelessness and total extinction. That said, it is a very serious situation and we’re standing at a crossroads with some choices to make and we’re trying everything.
This picture of a kitchen sink, as many suggest that we’re throwing everything in here bar the kitchen sink, and by that I mean we’re trying to use the law as it stands. We’re trying to change the law. That’s one thing to consider, trying to change the law and also trying to change the qualities of the people who decide which laws do and don’t get passed by way of ranked-choice voting, which we think which MassLandlords as an organization has endorsed and it’s going to be on the ballot. Well, it is on the ballot, so you’ve voted already, Question 2 of the Massachusetts ballot as ranked-choice voting, so the directors of the organization has voted to support that, so I’ll talk briefly about how this plays into our kitchen sink approach of using the law as it stands, trying to change the law and trying to change the caliber of the legislature.
Here’s a table of the options before us, actions we can try. A presentment letter, I will describe what that is. A renter power of attorney and renter temporary restraining order, what do mean by that? Well, right now, RAFT and ERMA are available for renters, but they have to apply for them. I don’t know about those of you tuning in today, but I’ve received many calls from housing providers who say their tenants are not paying rent and are not applying for the subsidies that are available and they know that they have a strong reason to suspect that their renters would qualify for COVID RAFT or ERMA, these emergency subsidies but have chosen not to apply, so is there some way we can have the housing provider stand in the shoes of the tenant, in the shoes of the renter and at least get the ball rolling, at least try and get the subsidy flowing in order for the housing provider to get paid rent.
An offer of a loan through town or city, that’s my idea that has something to do with the Civil Defense Act. As you know everything that Governor Baker has been doing since he made the proclamation of an emergency has been in pursuant to the Civil Defense Act and there was a provision in there whereby a municipality could accept an obligation to pay by the Civil Defense Act, repay a loan to you. Doug can explain that a little more detail. Unless the governor lets us apply on behalf of tenants for RAFT, let’s see if we can use a political act for that.
Media appearances. Doug is on TV and radio all the time, explaining what the situation is in Massachusetts. He’s just fantastic at that, getting media exposure, putting the case in a very reasoned and at the same time forthright way about the dire situation that landlords and therefore tenants are facing as a result of government response to the emergency.
The final point, request to the state inspector general about fraud, abuse, and graft. Someone is going to come out of this ahead, right? I’ll be discussing that in just a moment, but when people game the political system in order to help their friends and relations, we have laws about that, so I’ll discuss how the inspector general might fit in, as well as the options for us to consider.
Doug: And so most of this presentation—
Peter: Now—[unintelligible 0:11:18]
Doug: Sorry. Just to jump in here, so most of this presentation is going to be about the context in which we’re operating and all of those options that you have available to you are available at MassLandlords.net/ICC, also link from the member homepage, Individual Claims Council, so you can do one intake form that we’re not going to go through on this webinar, but it’s self-explanatory, and then as a result of that intake, all of those options become available. Does that sound right, Peter?
Peter: Yes, that’s great. Thank you, Doug, yes. Hits the nail on the head.
Doug: Okay, go ahead.
Peter: This slide mentions, there is an introduction to this thing called the Individual Claims Council. It’s a group of attorneys who will take these claims that you may submit and if you wish, represent you in order to try to push the claim that you make against the Commonwealth [distortion 0:02:50]. I’m talking about a claim against the Commonwealth for reimbursement of damage you have sustained because of the eviction moratorium.
So a couple of things. Let me just go through as bullet points in order, the injustice is real. Let’s make no bones about that. Housing providers have been put in an invidious position with their property rights trampled. Let’s be blunt. However, there are no good legal options, and I will explain why in a moment. We will give you the best options that we have come up with and Doug has very kindly, he said our best legal thinkers, the best you could find, and these are ideas that lawyers who really do care much passionately and have much experience in the field of landlord-tenant law, worked hard to come up with. So we didn’t just scratch these ideas in the back of an envelope. We’re thinking a great deal and bouncing ideas around for months.
Now you can decide for yourself which path forward to try and how long to try it. We, at MassLandlords, will help automate and as you enter data into the Individual Claims Council form, that will go to attorneys who will be in touch with you and explain what your options are. The Individual Claims Council is a group of attorneys you can reach out to and say, “I have this claim against the Commonwealth because of damage I’ve sustained as a direct result of the eviction moratorium. Will you write a presentment letter for me and if the presentment letter doesn’t work—I will explain what presentment letter is about—if that doesn’t work, what are my next steps?” The Individual Claims Council is a group of attorneys who are there on standby to work with you if you choose to work with your attorneys.
So judicial versus political. That’s one of the choices we face. In other words, litigation versus agitation.
Let’s start with agitation. What are our political options? Well, we can write. Individual members of MassLandlords can write to policymakers. You can write to the governor. You can write to your state representatives and senators and tell them about the situation that you’re in. MassLandlords, as an organization, can lobby to change RAFT and ERMA, as I said just now to see if there is some way to have housing providers themselves at least get the ball rolling, initiate the application so that the subsidies that are available can go to the housing providers who need them, housing providers who are providing a service during the emergency but are not getting paid for it because you can’t quit. You can’t quit your job as a housing provider during the eviction moratorium, but you’re not getting paid [unintelligible 0:15:02]. Can we lobby to change RAFT and ERMA so that it speeds up payment of subsidies that are available?
And then, something a little different. A public records request that could lead to an investigation by the inspector general or an audit by the state comptroller, and also the ballot questions. MassLandlords has taken the position on Question 2 on the ballot. Maybe there are other ballot questions we need to think about down the line. Those are organizational actions that we can take; some individual actions, some more collaboratively as a group.
Doug: If I could jump in?
Doug: With a question from LJ here in the chat. “My tenant applied for RAFT and disqualified because they checked out the box that they are getting evicted and no one can get evicted during the moratorium, so what can be done?” I would say that that’s exactly the kind of case we’re looking for because you’re supposed to be able to get RAFT. As a theory at least, you were supposed to be able to get RAFT without having them being filed against or served. I think that’s right, isn’t it?
Peter: Absolutely, yes. Yes.
Doug: I’ll take presenter into intake.
Peter: Yes, I will definitely talk about that online because that’s just a simple mistake on the part of whoever was doing the processing of our form. It doesn’t have to be a notice to quit. It doesn’t have to be and obviously it cannot be a summary process why not, so yes. You can write and call. You can write the governor, write state representatives, write state senators, and call them and explain what’s going on.
Please bear in mind what we’re trying to do here when we make contact with policymakers is to build a relationship. We want to be very clear and sometimes strident and forceful about the situation that housing providers in Massachusetts are confronting especially with small ones. We want to be very clear you’re coming into this not as a supplicant, but as somebody who wishes to establish a relationship and that means talking as well as listening, listening as well as talking.
The image here is of somebody who is taking fire and is very much on transmit mode, sending a very clear message. I get it. I get you’re in dire straits but you want to be on receive as well as transmit. You want to be building relationships by talking with someone. But what can you do? You say to your state rep, your state senator, and the governor, “Look, all these subsidies are out there, but tenants are just not applying for them.”
It couldn’t be easier in some sense. I know that completing a form can be challenging, I think 30 minutes or so, and there are documents that you need to show. However, this is the really difficult position that many housing providers are in. They can’t get access to the funds that state government and the feds have allocated to cover this situation and that needs to be fixed. There is absolutely no good reason to not let landlords at least get the ball rolling, so tell them about that. Let them know. Let them know that you should be able to apply for RAFT and ERMA when your tenants won’t.
What about MassLandlords as an organization, what can we do? Who could be investigating why? Why do I talk about public records requests, and so forth? Well, here’s a question. Cui bono? The Romans set a word for everything and here’s a phrase meaning who stands to benefit. Picture of Julius Caesar there, a well-known Roman. Who stands to benefit from the eviction moratorium?
Well always somebody. We know that some smaller housing providers will have to sell, it’s a fact. People are being forced to the wall, they’re going to have to sell, then who will be able to buy? Somebody is going to benefit. Somebody always does as night follows day, as day follows night, and there is a crisis, somebody benefits, and usually that’s okay. That’s the way the market works, right? You see an opportunity, you see a market failure or a government failure, and you take advantage of t. You exploit the situation. That’s the way the free market system is supposed to work, but it doesn’t always work lawfully.
There’s no doubt that what’s happened before is starting to happen again now. Here’s an article from Bloomberg back in May, “If Landlords Get Wiped Out, Wall Street Wins, Not Renters. Bans on evictions and rent strikes could push out small investors.” Here’s what Bloomberg said, “Small investors own much of the naturally occurring affordable housing in the US–” using phrase, naturally occurring affordable housing. “If they’re forced to sell or abandon properties, more of the market might wind up in the hands of Wall Street firms, some of which have built up large portfolios of rental properties over the last decade or so. New owners with deeper pockets might opt to reposition low-income units to target wealthier occupants.”
Why does Bloomberg speculate that? Because that seems to be what happens all the time. We looked this article back from 2018 from Bloomberg, “Wall Street Snaps Up Cheap Single-Family Rentals. Cheaper properties seen generating better yields as prices rise.”
“When Wall Street is Your Landlord,” This is an article from The Atlantic, which discussed what happens after the last financial crisis in 2008-2009, “When Wall Street is Your Landlord.” “With help from the federal government, institutional investors became major players in the rental market. They promised to return profits to their investors and convenience to their tenants. Investors are happy. Tenants are not.”
And so the point of this article is someone always does pretty well out of a situation. This was from before the COVID-19 emergency. He’s discussing a trend with [unintelligible 0:20:55] for years as smaller landlords are getting pushed out, bigger institutional investors reaping the benefits, but it’s not always those large Wall Street firms.
“Between 2011 and 2017, some of the world’s largest private equity groups and hedge funds, as well as other large investors, spent a combined $36 billion on more than 200,000 homes in ailing markets across the country.” Some of these making a benefit, somebody always does as I said as night follows day. “Of course, the trends that favored these new landlords were largely produced by a financial crisis that Wall Street had itself abetted.” Well, editorializing from The Atlantic there, but you get the message.
When there’s a crisis, wash, rinse, repeat. The same thing seems to happen over and over again. Smaller housing providers pushed out, other entities reap the benefit. So it’s not just Wall Street. That’s the bull on Wall Street, by the way, bullish market.
It’s not just Wall Street that benefits from this kind of crisis. Sometimes, other kinds of entities not big hedge funds, not huge institutional investors can benefit from smaller landlords being driven out of business. For example, here’s one way that another kind of entity benefits from driving smaller landlords out of business. JPNDC, Jamaica Plain Neighborhood Development Corporation. Here’s a screenshot from their site, In Planning, 3371 Washington Street. What is this about? Project details.
So this is a property that’s purchased by Jamaica Plain Neighborhood Development Corporation and New Atlantic Development on January 7, 2020. It’s an L-shaped parcel on Washington and Green Streets. Existing building is home to two small businesses. Relocation costs for both businesses due to construction will be compensated in accordance with the Uniform Relocation Act. The preliminary plans envision a new building 100 percent affordable senior apartments plus retail space that JPNDC hopes will be occupied by El Embajador, which is one of the small businesses there.
This is a 100 percent publicly funded entity, Jamaica Plain Neighborhood Development Corporation, and it’s acquired this property in collaboration with a private sector entity, New Atlantic Development. Why? How did this happen? Why did the old owner, City Realty, sell? What was going on? Well, if you go online, check newspaper stories, Jamaica Plain Gazette gives you some sense of what happened back in 2017, “Two Washington St. businesses, landlord in lease dispute.” The URL is here. If you check out this webinar online, you can copy the URL, track down the story yourself, and this is what it says.
It talks about what happened with the decision by the owners to sell. “But the statement added, ‘once City Life/Vida Urbana became involved, discussions immediately lost all forward progress. Every time City Realty and this tenant agreed to a new lease term, additional extreme demands would be added at the urging of City Life.” This is what the sellers are saying. This is their story to the newspaper. This is their version of events. “Finally after a year of vacancy and no indication that El Embajador had any intention of agreeing to reasonable terms, we agreed to rent the space at 3381 Washington to another local business, a small Dominican bakery who had been asking us about the space for months.”
That story is City Life/Vida Urbana got involved and brought negotiations between owner and tenants to a conclusion. But City Life/Vida Urbana says no that’s not what happened at all. Our friends, JPNDC, has been supporting that process. “It was only after negotiations with City Realty Group broke down that we, meaning City Life/Vida Urbana jointly organized a large march and “eat-in” during Thanksgiving week to support the restaurant and the other tenants.”
So what do they do? They sold out, so the former owners buckled and sold and City Life/Vida Urbana and JPNDC are publicly funded. These are entirely publicly funded entities that had a role in acquiring or persuading a property owner to sell and sold it to Jamaica Plain Neighborhood Development Corporation and this entity, New Atlantic Development, LLC. Sometimes sales can be encouraged by advocacy groups and publicly funded nonprofits.
Doug: If I can jump in there, Peter?
Doug: So I guess a message for folks to take away is there are large organizations, better capitalized organizations, market forces, and regulatory forces that may seem insurmountable and it’s really important that you submit your information to the Individual Claims Council intake form because that’s how we can identify what’s going on and potentially help you possibly in a way that we couldn’t if you’re on your own. Even though we talked at the beginning about the low likelihood of success of any individual ICC intake, overall the picture that it paints is enormously helpful when it comes to some of the actions that MassLandlords can take on member behalf. That sounds fair to say, Peter?
Peter: Yes, thank you. Good point. There’s a lot of information that we could use. If indeed people who stand to gain from this crisis are gaming the political system to engineer a market climate in which smaller property owners are being forced out, forced to sell to either other bigger private actors or publicly-funded entities, we should know about that because that’s actionable.
The question that we’re trying to answer here is, “Did the people who stand to gain a direct financial benefit from driving some smaller housing providers to sell have a role in writing the law? And if they did, how can we do something about that?” So did they have a seat at the table?
We could find out. We can do a public records request. We can do it via MUCKROCK, which is a great organization that serves as a conduit for public records requests and makes the results public. So public records request under our version of FOIA, the Freedom of Information Act, what can we find there? Well, we can find out from the governor’s office that we can make a direct public records request just to the governor’s office and want to mention don’t have to go through MUCKROCK, but it just happens to be a helpful organization. You can find out from the governor’s office, who had a hand in this? Who had a seat at the table? Who wrote Chapter 65? Who is encouraging the passage of Chapter 65?
If there is anything untoward going on, there’s an officer of government, the Inspector General, whose job it is to find out to prevent and detect fraud, waste, and abuse of public funds and public property and to promote transparency in government.
If we find out from you, from your direct firsthand experience that some of these publicly funded entities are trying to force you out, force you to sell or encourage you to sell, we can use that information and find out whether there was a violation of the law and encourage the inspector general to investigate, or the Office of the Comptroller to audit.
As I mentioned, the entities that we’re particularly worried about are these completely publicly funded entities that would stand to gain if the smaller housing providers had to sell up and then these publicly funded entities if they were to collaborate with private sector entities, if they stood to gain, let’s find out. Let’s encourage the responsible offices of government to investigate and audit, so that’s one possibility.
Who’s involved? Who has a seat at the table? Which individuals or organizations, who participate in meetings? Who visited? Who called? Let’s find out that information.
Let me pause that. That’s one route. That’s very much a political route. It could turn into a litigation if it turns out that we discover some shenanigans.
Now let’s focus on the litigation route that lawyers have been talking about, one possibility out of a bunch of bad options.
Let me start with rights. Let me start with some basic substantive due process, and this is a quote from Supreme Judicial Court decision, “Where a statute unjustifiably burdens the exercise of a fundamental right protected by article 10 of the Massachusetts Declaration of Rights, the standard of review we apply is strict judicial scrutiny.”
What is a fundamental right? “A fundamental right is one that is deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty such that neither liberty nor justice would exist if they were sacrificed.”
[Bear with me. I’m trying to move my picture here so I can reload on the screen.]
“Under strict scrutiny review, a challenged statute may only survive when it is narrowly tailored to further a legitimate and compelling government interest.”
That’s a relatively recent decision from the SJC, if a fundamental right is so burdened by government activity that it may not survive, the court should apply strict scrutiny and find out when it’s narrowly tailored to further a legitimate and compelling governmental interest.”
What rights are these? Back in 2003, the Supreme Judicial Court made this comment. This was the Marriage Equality Case, Goodridge v. Department of Public Health and the court said you need a bolder language there. Well, the state could in theory abolish all civil marriage, it can’t abolish all property rights. You get the message? Property rights are fundamental right and state action so burdens those rights that they become non-exercisable [unintelligible 0:31:30] extra exclusion.
However, here’s another quote from another case before that, so “Right to property is fundamental.” Okay ,so Right vs Police Power. “Speaking in general terms,” I’m quoting from the case here, “it may be said that no one questions the existence of the right of every person to follow any legitimate calling for the purpose of earning his own living or for any other lawful purpose. It’s a sacred right protected by the Federal Constitution, the Massachusetts Constitution, but sacred rights such as this are not absolute. Like almost any other right, it has to give way to restraints required for the protection of public health, public safety, and public morals, in other words, the police power.” That’s a quote from a 1912 case, Commonwealth v. Beaulieu, and there’s the judge who penned the quote, Judge Wilkes Hammond.
Why do I mention this case? Fundamental rights have to give way to the police power, says the Supreme Judicial Court. The police power, nothing to do necessarily with police officers. It’s the duty, the power of the state to regulate behavior and constrain rights for the sake of the general welfare. That’s what we mean by the police power, and that seems often to pull the rug out from under our fundamental rights.
For example, imminent domain and civil asset forfeiture. The exercise of the police power comes up with imminent domain where the state can come in, take your property. It’s going to compensate you for it, but it take your property even if you don’t want to sell it and civil asset forfeiture. I want to give you this example because it helps set the stage for what happened here in Massachusetts. Civil asset forfeiture is when the state can come along and take along and take your stuff without paying you for it and no crime has been committed. They just need probable cause.
The Institute for Justice did a study a few years ago about this issue, The Abuse of Civil Asset Forfeiture. The study was called, “Policing for Profit.” I urge you to take a look at it. It’s available online. There’s the URL, at the bottom of the page, and what they discovered was that Massachusetts earns an F for its civil forfeiture laws, meaning this Commonwealth has the lowest bar to forfeit property, no convictions required; poor protection for innocent third-party property owners; and as much as 100 percent of forfeiture proceeds go to law enforcement.
Let me just wrap this up briefly. In Massachusetts, the state can come in, the Commonwealth can come in and take your stuff, your car, your cash, your private property, your motel on the suspicion that it may have been used in the commission of a crime. It doesn’t have to be a crime. It doesn’t have to be a conviction and all the proceeds of the property that they took from you, law enforcement can keep that.
If you are an innocent owner, if you had nothing to do with any crime that actually was commissioned and they took your property, you have to prove its innocence. You have to prove your property’s innocence. That is the state of play in Massachusetts. It has been for many years; nobody has seen that. If you are interested in this issue, I recommend Googling Motel Caswell and Institute for Justice, Motel Caswell, and civil asset forfeiture. It will make, I don’t know how much you have left, but if you have here, you can make it stand on it.
So a longwinded way of saying property rights are not as safe in Massachusetts as they are in some other states, which I think is contender for understatement of the century, you’ll see.
Regulatory takings. From imminent domain and civil asset forfeiture, my way of saying property rights haven’t been sacred in Massachusetts for a long time, so this other issue of regulatory takings. When government use the police power too far, the courts may consider the government to have taken private property for public use and taking names compensation is in order. So regulatory takings is a large way of saying a taking that is come at you by way of regulation. When it goes too far, when the regulation goes too far and in effect taking as opposed to payout.
Now some states, Oregon, for example, have found a way to ensure that property owners get compensated for regulatory takings. In 2004, there was a question on the ballot. Ballot measure 37 that passed and what does that ballot measure say? Well, in a nutshell—that’s what the picture of the squirrel is meant to convey—in a nutshell when a regulation reduces value, the owners receive compensation. Oregon passed a law saying that. When a regulation reduces the value of your property, the owners receive compensation.
We are not in Oregon. Massachusetts is not Oregon, so what are our options? While we’re waiting for the Massachusetts equivalent of Oregon Measure 37, well one is start organizing a ballot question along the lines of Ballot Measure 37 so that we have a law like Oregon’s. That’s one thing we could be doing. Another option, send the Commonwealth a presentment letter that states your claim that it has taken your property under the Civil Defense Act or by way of a regulatory take, a presentment letter under the Tort Claims Act. That’s the seal of the Commonwealth.
The Commonwealth, as a sovereign, is generally immune from suit but there’s a huge exception set forth in the Massachusetts Tort Claims Act. Sometimes, you can sue the Commonwealth for what? Well, not for this. We’ve talked about tortious interference with business and contractual relations, but it turns out, you can’t sue the Commonwealth for that just so you know.
What is tortious interference with business and contractual relations? That’s when somebody comes between you and the party you’re contracting with and tries to will your way, you know somebody comes along and says, “Listen, Tenant, we know you have a relationship with your landlord whereby landlord provide you with housing and pay rent out. How about we make it so you don’t have to pay rent anymore but you still get to keep the housing?”
Come in between you and your contracting party, you can think about that as akin to tortious interference with contractual relations. We thought about it. We can’t use it because you can’t sue the Commonwealth for that. Why? Because the statute said so and there is [unintelligible 0:38:18] statute, so you can’t sue for interference with advantageous relations or interference with contractual relations. Bang!
Then I know what you’re thinking. Can we sue them under the Federal Tort Claims Act? No. The Federal Tort Claims Act says you can’t sue the state or the federal government for this kind of thing either, so I just want you to know that we lawyers thought about it and had to rule it out.
Why send a Tort Claims Act presentment letter if you can’t sue for intentional interference contractual relations? What could we sue for under the Tort Claims Act? What kind of claim could you have against the Commonwealth that would justify sending a presentment letter which tells the Commonwealth you got six months to come up with some kind of offer or I’m going to sue. That’s what essentially a presentment letter does? You give the Commonwealth six months to come up with an offer or when the six months are up, the starting gate is open, you can jump into court.
Why send this? Well, first of all, failure to send one can ruin your lawsuit if the court concludes that your claim fell under the Tort Claims Act, that would be unfortunate. So let’s say you sued in superior court. You said the Commonwealth engaged in a regulatory taking. It took my property without compensation, and the Commonwealth turns around and said, “Aha, okay, but that’s exactly the kind of claim that falls under the Tort Claims Act, therefore, you should have sent a presentment letter. Judge, they didn’t present a presentment letter. Case dismissed.” [unintelligible 0:39:52] bad happens. That’s one reason.
But also it gives the Commonwealth an opportunity to settle. Our thinking is maybe they’ll get enough letters sent under the Tort Claims Act, they realize that housing providers really are hurting and really are serious about pursuing their claims against the Commonwealth.
Civil Defense Act. So I mentioned regulatory takings. That’s one theory of relief come up with this as Chapter 65 is in effect the regulatory taking because it prevents you making the most of your property, strips you of your property, slightly different angles under the Civil Defense Act, which was active back in 1950 when Joseph Stalin, was general secretary of the Communist Party, leader of the Soviet Union. That’s how the Civil Defense Act came into being, but that’s the statute that now Governor Baker is using in 2020 to issue emergency regulations, emergency orders from. Everything he does is in direct pursuance to the Civil Defense Act.
Here’s the emergency proclamation from way, way back March of this year, when he cites Chapter 639 of the Act of 1950, that’s the Civil Defense Act. He says, “I am acting in pursuant to that.” But the Civil Defense Act itself says that after such proclamation, after governors declare a state of emergency, he can take possession of any land or building, and if he seizes property under this paragraph, he is supposed to give a complete and accurate description and file it in the registry of deeds. If he doesn’t do that, if he either fails to file it, or –
[Let me just skip a little to the next few slides since I’m running out of time]
If the governor fails to record the taking and fails to make a reasonable amount of compensation, you can sue under the Civil Defense Act.
If your property has been taken under the Civil Defense Act, you can go to Superior Court and ask for money. This brings up question is that what has happened here? Has Chapter 65 operated as a taking under the Civil Defense Act? By signing and extending Chapter 65 the eviction moratorium, has the governor seized and taken possession of property?
While it’s a binary question. There’s only a yes or no. The governor has seized and taken possession of property via the eviction moratorium or he has not seized and taken possession of property via the eviction moratorium? I don’t know which way the court will rule. The only indication we have so far from the [unintelligible 0:42:48] case is that Superior Court judge has said that the eviction moratorium does not amount to a regulatory taking, which suggests that it wouldn’t amount to a taking under the Civil Defense Act either, so that’s the only indication we have so far and that’s why I don’t raise too many hopes on this. Let me digress [crosstalk 0:43:14]
Doug: A question.
Doug: In the [unintelligible 0:43:12] case in particular, there is a specific fact pattern. Isn’t it true to say that any given landlord might have a different fact pattern that would rise to the level of taking, even viewed by that same judge if only they were to present their separate case?
Peter: That’s right. That’s why there is some hope I think and that’s why we can do this with a clear conscience, that’s why it’s not frivolous because one of the things the judge mentioned in the [unintelligible 0:43:35] case is that there wasn’t evidence in that case about the loss in property value. There wasn’t evidence that the property and – let me get to this slide in a moment – what the standard is for showing how much your property has to lose value in order for that to be a taking. He did take some trouble to point out that wasn’t the case in the [unintelligible 0:43:55] case. There hasn’t been a suggestion that the property has been stripped of all of its value, so you’re absolutely right. Yes.
Either way, seek compensation in Superior Court. If it is a taking, seek compensation in Superior Court, and if they argue that the eviction moratorium goes too far and results in a regulatory taking, so I think why would we do this? Because it’s the only option open in terms of litigation that has any chance of success and at this point, quote the standard that we have to reach in order to establish a regulatory taking in Massachusetts. “What may be characterized as forbidden takings are those governmental actions which strip private property of all practical value to them or to anyone acquiring it, leaving them only with a burden of paying taxes on it.” That is a high burden, so stripped of all practical value.
High bar. The image there is supposed to convey the impression of high bar not insurmountable. You can perhaps get over the bar, but it’s a very high bar, and it is an uphill struggle, forgive the mixed metaphors. Trying to get this argument across to a judge and persuade the judge that your property has been stripped of all practical value is not impossible, but it’s an uphill struggle, and in some instances, it’s going to be like trying to fit a square peg into a round hole. The fact that it just won’t fit. It won’t be suitable, so this is not one size fits all. This isn’t for all housing providers, but is it frivolous to try? No, absolutely not.
Here’s the standard for frivolousness. “No finding shall be made that any claim, defense, setoff or counterclaim was wholly insubstantial, frivolous, and not advanced in good faith solely because a novel or unusual argument or principle of law was advanced in support thereof.” So yes, on the one hand, we’re trying to make an argument that Chapter 65 operates in some cases as a regulatory taking or as a taking under the Civil Defense Act hasn’t been done before but it’s a good safe argument and even though to hold this high, there may be instances when some housing providers whose properties have been stripped of all practical value can surmount that and be entitled to compensation.
Again, Massachusetts is [unintelligible 0:46:30] to be somewhat lighthearted. Here’s the proof. Here’s the map. We’re all in one coast, they’re on the other, so we don’t have a law like Oregon’s but can we? Can we lower the bar so that the housing providers [unintelligible 0:46:48] has been on the receiving end of a regulatory taking even though it hasn’t been stripped of all practical value?
While we can try to do that in court, can we change judge-made law in Massachusetts? Yes. How do we do that? Well, who can change judge-made law in Massachusetts? Judges. We can get them to court and argue our case and try to persuade an appellate-level court to lower the bar and to say that the taking may have occurred even though the property is not being stripped of all practical value. If you’ve gone a year or more without being able to get any rent and nobody, nobody wants to buy the property from you, or they want to buy it for a song. They want to buy it for sixpence, as we say in the old country, if they’re offering you pennies on the dollar, wouldn’t that be enough to establish a regulatory taking? We persuade the judge that that bar stripped of all practical values too high? Well, we can do that. We can try that.
The legislature. Of course, the legislature in Massachusetts is the body that enacted Chapter 65. They knew what they were doing. They knew the foreseeable consequences of their actions, so don’t hold your breath.
The voters. By way of a ballot initiative, voters can change the standard so that a regulatory taking triggers compensation in Massachusetts just the way it does in Oregon. By the way, winning that ballot initiative in Oregon was the start of [unintelligible 0:48:15] that have to get a lot of litigation.
What are our options? In a test case, we might be able to persuade the Supreme Judicial Court that the regulation goes too far even when it doesn’t strip the property of all value. MassLandlords individual claims process will help us identify the right cases to take to court in order to try to change the judge-made legal standard, so this is going to be one benefit of participating in individual claims process. It helps us identify cases that might be the right test cases, emphasis on try, emphasis on try. We can try to change the judge-made legal standard.
Now what are the strictures? The individual claims council process operates within some legal strictures. MassLandlords is not a law firm. That means we’re not allowed to split fees. We’ve decided not to collect money on our side to using the vendor exception. Your old attorney would have access to the autocomplete individual claims process.
This slide is a really helpful reminder but LegalZoom is not a law firm. This is why we’re hesitant about going in a different direction operating as something akin to a law firm and taking these cases as MassLandlords rather than just being a conduit to lawyers. LegalZoom got sued in many jurisdictions because of its autocomplete forms and if you know anything about litigation, you know that sometimes the process is the punishment. We don’t want to get sued for doing something that’s probably perfectly legal and stay well on the right side of the law here and not look like in any sense a law firm.
So I [unintelligible 0:50:00] message clear enough so far, so Hail Mary. What we’re trying to here is to change the law here in Massachusetts to reduce the standards necessary in order to establish a regulatory taking.
In conclusion, Massachusetts law do not sufficiently protect private property. Our politicians, they are not going to enact a version of the Oregon Law –
[Sorry, typographical error on my part—not a version of. It would be a version, too.]
We can request payment from the Commonwealth via presentment letters on the basis that a taking has occurred. We can try and persuade judges that the taking has occurred or that the current bar for regulatory takings is too high. Those are some of our litigative options: the presentment letter making a demand, get them to court, arguing that neither a regulatory taken has occurred or that the bar for regulatory taking is too high.
At that point, Q&A.
Questions and Answers
Doug: The first question that I will ask while people type into the Q&A box possibly is a lot of this presentation focused on the presentment letter and the regulatory taking, but in the initial menu, we talked about things like compelling the renters to apply for RAFT. Is that still possible? Is that a side effect of completing intake? How does that fit into the picture?
Peter: I do think that is it worth trying there because it’s tantalizingly close like so many housing providers who know the money is there that the tenants are probably entitled to it, but they just for whatever reason can’t or won’t apply, so I do think it’s worth in some instances perhaps you can get in front of a judge, perhaps the tenant there is some behavioral health issues that means that they cannot. Perhaps the judge would be willing to appoint a GAL, Guardian Ad Litem, to initiate the application process, so it’s very pixelated but the facts of each case are different. I can imagine the situation in which a tenant just didn’t have the ability to apply but somehow getting in front of a judge, persuading a judge that it’s in their best interest to apply for the RAFT or ERMA, that’s in their best interest and that the appointed GAL who could do it.
Could we persuade the executive branch to change the rules about the processing, the initial processing, the intake stage of RAFT and ERMA so that somebody other than the individual claimant could start it? That’s possible. I don’t know a heck of a great deal of both, but I do think it’s obtainable. If the executive branch is going to be reasonable, I think this is one way they can show good faith with housing providers and say, “Okay, we will change the regs a little.” Because that’s what I say, it’s a regulatory tweak. It doesn’t need an act of legislature to do this. RAFT and ERMA are creatures of regulation, even though it’s only the legislature that can appropriate the money. The way that the money gets distributed is regulated by regulations. If there’s one thing we’ve learned over the past few months is that they can change regulations like that.
Doug: Yes, okay. And so, if you could just summarize how this approach compare and contrast to the [unintelligible 0:53:33] case where they’re going after the core constitutionality of the eviction moratorium. Is it fair to say that this one could potentially produce a smaller but more personally relevant result for someone who participates?
Peter: Possibly. I mean I think that the co-benefits would be enormous, so it wouldn’t just be housing providers who benefit from if we were successful, if we went to court, we were able to persuade the Supreme Judicial Court that the standard for regulatory takings, the bar is too high, and then you can show that your property has been taken by this state government even if it’s not been stripped of all practical value. The court doesn’t have to find that the moratorium was unconstitutional in order to reach that conclusion. Absolutely not, so we don’t need a head-on frontal assault on the constitutionality of the eviction moratorium.
So far as I know in every state where this is being raised, where the eviction moratorium has been imposed by the legislature as opposed to a governor’s executive order or by the courts themselves, or by municipalities. Those challenges have not been successful. There are instances where constitutional challenges to eviction moratoria have moved up a little, but they have been very different from our legislatively-imposed eviction moratoria.
Yes, the short answer to that question is, yes, we can get where we want to be in terms of establishing a regulatory taking without the court having to find that Chapter 65 was unconstitutional lock, stock, and barrel.
Doug: Okay, so it can still be worth it for me to participate if my fact pattern is such that something can be done about my case even if doesn’t have implications for other people?
Peter: Yes, I think so. Let’s say that your property has been stripped of almost all practical value doesn’t make sense for you to go through the individual claims process and talk to an attorney about whether to go to court. Absolutely!
And then, why would it make sense to go to court? Well, you just have to realize that you probably wouldn’t prevail in the first instance because the superior court judge would have to apply the law as it is and the law as it is in Massachusetts requires that the property be stripped of all practical value in order for it to be taken to court, but you put a foot in the door and when the “perfect case” comes along, where the property is being stripped of 99% of its practical value, and we can get that case in front of the judge and maybe nudge it up towards the Supreme Judicial Court and then the Appellate level court says, “You know what, this judge-made standard that is too high. Well, that decision, that outcome would redound to benefit of people with live cases possibly and certainly people who come afterwards.” There is possible benefit to you and I think definite benefit to others.
Doug: Okay. Anonymous asks me in the chat feature, ‘Why can’t landlords apply for their own rent that the tenants won’t pay?” I think that’s in the context of RAFT perhaps. It’s the regulations don’t allow that, right?
Peter: Right now it has to be the claimant, so I talk a little bit about the regulations so we’d know exactly what to ask the government to change and right now the regs say that it has to be the claimant, and I think any intake personnel would require that. I’m not saying that you shouldn’t try but if you try, they’re going to turn you away, I believe because that’s what the regs require right now. When landlords can apply for others, a kind of RAFT for mortgages, for mortgage relief, but for rental assistance right now what the regulations is the tenant, the renter complete the application process, initiate, and complete.
Doug: Okay, thank you. [unintelligible 0:57:30] wants to know, “What would exactly be the legal process by which we would compel our renter to apply for a RAFT?”
Peter: I don’t have much hope for this one, but what would you do? You go to housing court with a request for TRO, a temporary restraining order, as for fast injunctive relief, and say to the judge, “I’m facing irreparable harm if you don’t compel the tenant to apply for this rental assistance.” So it would be completing the TRO form, which is available online. I’m not recommending you try this at home, but if you wanted to, you could get the TRO form, try, and get in front of Housing Court judge, and request an order that the tenant complete the form.
Now I’m not sure any judge would do that. I know of one who definitely wouldn’t but there may be housing court judges, who given the right fact path, [unintelligible 0:58:30] this is a tenant who’s just thumbing their noses, or as I’ve mentioned earlier, if it’s a case where the tenant can’t, they simply don’t have the wherewithal for whatever reason. It could be behavioral health, language, some other reason that they can’t do it themselves, perhaps the judge would order somebody else to initiate the process, but thus far how would try to make that happen. We can file a request for a TRO.
Doug: Okay, thank you. Marita wants to know if we can use the Individual Claims Council for commercial properties and commercial renters because they are also impacted by the eviction moratorium.
Peter: Not many, right? I mean commercial evictions still happen.
Doug: Well, there’s a small business exception or something like that. Marita apparently used it [unintelligible 0:59:32]. I would say send us a separate email for that for something that doesn’t fit in, email@example.com. We can forward that to someone to look at it, but in general, MassLandlords focuses on residential rentals, so we might not be fully prepared to do that. We can connect you to someone. Yes, small business, beauty school. Yes, that could be covered, but that maybe outside MassLandlords’ wheelhouse a little bit.
Doug: Okay. Alright, so it’s exactly 1 o’clock and we’ve tied up the questions here, so I would propose to end. Any last words of encouragement or advice for our audience, Peter?
Peter: Yes, we still have rights and even though the courts and the politicians are prospecting a great deal, in particular the politicians and we don’t know what we want from the courts, we do still have rights and like other muscles, they atrophy without use, so let’s flex them.
Doug: Alright, so thank you very much, Attorney Vickery. If you are watching this and you would like to participate in the Individual Claims Council, there are links on our site. You just have to fill in the form and someone will be in touch with you shortly about options. So thanks very much for your interest and attention. Stay safe. We’ll talk to you all electronically, firstname.lastname@example.org for any specific follow-up.
Peter: Thank you all.
Doug: Thanks. Take care all.