On October 17, 2020, at midnight, the eviction moratorium signed into law by Governor Baker on April 20, was allowed to expire. The law, 191-H.4647, “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency,” had been extended twice by the governor.
Still in place, through the end of the year, is a federal eviction moratorium put in place by the Centers for Disease Control and Prevention (CDC). That moratorium will allow many evictions to proceed, though it may bar evictions of some renters who have been verifiably made unable to pay rent due to COVID-19 and the economic response.
On October 12, in anticipation of the end of the state’s eviction moratorium, Governor Baker’s administration announced a comprehensive set of resources to help tenants remain in their homes. Resources include $100 million to support RAFT; $12.3 million to provide legal representation and mediation services before and during evictions, and $50 million for rapid post-eviction rehousing. As part of the additional RAFT funding, landlords with 20 or fewer units will be allowed to apply for emergency rental assistance with tenant consent.
This article provides updates about the moratorium from the point of view of a landlord and gives a roadmap for Massachusetts owners and managers. Read an FAQ below for updated information.
On April 16, MassLandlords conducted a survey among members about the MA eviction moratorium.
- Message Board Moratorium Bulletin from October 12 RE: End of State Eviction Moratorium, Start of CDC Moratorium
How Long did the MA Eviction Moratorium Last?
The MA eviction moratorium expired at midnight on October 17. Because courts are closed on Sunday, October 18, the moratorium effectively carried over to Monday, October 19, open of business at 9 a.m.
The Massachusetts eviction moratorium started April 20, 2020, and originally was to last either:
- One hundred twenty (120) days from the effective date of the act, which means it would end at midnight on August 18, 2020, OR
- Forty-five (45) days after the Governor lifts the COVID-19 state of emergency that began on March 10, 2020,
whichever arrived sooner, unless the Governor extended the moratorium, which he did. Governor Baker extended the eviction moratorium once, through October 17 at midnight. Every affected case has been paused during the moratorium.
Reopening businesses (repealing Order 13) had nothing to do with the state of emergency. As of May 26, the state of emergency remained in effect.
Are courts back at full staff?
Staff are at half presence in the courts for the time being. Housing courts, aware of the impending backlog of eviction cases, are devising strategies and hiring extra staff to process cases. Eviction cases filed before courts were closed in March, as part of the eviction moratorium, will be heard first.
Is there a new summary process and complaint form?
Yes. New summary process summons and complaints must be used beginning with the lifting of the moratorium on October 19. If you have an old summons, you need to go to court to swap it for a new summons, or purchase the new one.
You will no longer be able to choose your hearing date. On new summons and complaint forms, you will see, “Trial date to be determined by the court.” “Served by” and “entry” dates will not change, and will follow the same rules as before.
How big is the backlog of eviction cases?
There are thousands of cases across housing and district courts statewide, as well as in Boston municipal court. For one example, the Central Division Clerk Magistrate said during an October 14 Zoom event: “I can reassure you that I have stacks of cases and I still have the original list from the day they were supposed to be heard.” New cases will be heard in the order they are filed.
What if I served a notice to quit before courts were closed?
If notice was served pre-pandemic, as long as rent arrears have not gotten to zero, the notice should still stand. If you achieved a zero balance in arrears at any point during the eviction moratorium on a nonpayment case, you need to serve a new notice.
What if I have a summons from before the moratorium?
If a summons was served but not filed, it is no longer valid. You must re-serve.
What if I have an execution from before the moratorium?
Executions issued before the moratorium will be covered order 6-20. Subject to the requirements of the CDC order, if the execution was tolled and the 90-day execution period has passed, you can move to reissue with the affidavit.
All original executions must be returned. Return them now and when you make a request for a new execution, they will have the originals filed.
If you wish to increase the dollar amount on the execution, that action will require a hearing. Execution for money is good for 20 years; execution for possession for another 90 days. The longest you could extend an execution is 180 days: 90 days after judgment and levy 90 days after issuance. If a property is transferred, the new owner would have to figure out a way to become part of that case in order to levy an execution.
What about the CDC moratorium? Where does it apply?
The CDC moratorium does not stop filing. The CDC moratorium is applicable to every case in which rent is sought. It does not have to be a nonpayment case, it could be cause where nonpayment is listed as a cause. We interpret that if you are filing no cause or no fault, and there are arrears, then the CDC moratorium applies.
What is the CDC declaration?
The renter must provide you with a declaration stating the impact of COVID-19 on their inability to pay full or partial rent. Then tenant can give the landlord this declaration at any stage or event during the proceeding.
Is a tenant required to provide proof to accompany their CDC declaration?
No, the tenant is not required to provide proof substantiating a CDC declaration. If you can prove that a CDC declaration is not legitimate, you can file a motion to undo the declaration. A landlord can request discovery of a renter.
It is not the job of the courts to go beyond the signed and dated declaration. It is the landlord’s job to try to attack or undo the declaration if they feel there are misrepresentations.
What if the renter doesn’t give a CDC declaration?
Cases without CDC declarations will be adjudicated in the normal course, in the same manner as pre-pandemic.
Can I subpoena my renter for proof of COVID impact?
You can subpoena anyone via a constable, it is not issued by the court. The person being subpoenaed can also file a motion to quash the subpoena.
Does a CDC declaration stop me from filing for eviction?
According to the letter of the law, the only thing the CDC declaration can stop is an issue of execution. You are allowed to start the process, even with a CDC declaration. We recommend that you do not file if you are not working with an attorney, and have no ability to wait. See our article on Are Notices Legal?
Does the CDC declaration have to be provided with the notice to quit?
No. Only the CDC affidavit from the landlord is filed with the court.
What is the CDC affidavit?
The CDC affidavit is a document that you give to the courts telling them whether or not your renter provided you with the CDC declaration. If you did receive a CDC declaration from your renter, execution will be stayed until December 31, when the CDC eviction moratorium is scheduled to expire.
When do I have to file the CDC affidavit?
In all cases where money or rent is being sought, you must file a CDC affidavit. A CDC affidavit needs to be filed each step of the way after, as well, and in current ongoing cases.
If a tenant agrees to leave, but then they hand you an affidavit, can you still get an execution?
Only if the agreement said that the renter waived their rights pursuant to the CDC order. Even then, talk to an attorney. Note that the CDC declaration is only relevant when seeking rent.
Will the CDC moratorium make a practical difference?
The odds of any new case filed on or after October 19 getting to the stage of an issuance of execution is very slim. It will take the courts at least a month and a half to work through old cases (i.e., those filed before the March shut down).
When will my case be heard?
Courts will be backlogged with eviction cases, and dates will be pending in some cases. Please don’t call every day asking when your case will be heard. Masscourts.org is available to all; you may check there at any time to see your case, and check if something has been scheduled.
Will hearings be conducted in person?
No. Unless there is a unique situation, in which someone has to be physically present, all hearings will be conducted online, via Zoom. If you are not familiar with Zoom, you should educate yourself on the use of the platform, such as how to share your screen, before trial.
What about e-filing?
As long as you are not a corporation, a trust, or an LLC (that is, as long as the landlord is an individual), you can still file by mail or in person with a check. Anything other than “Mary Smith” will require a lawyer and e-filing.
Can notices to quit be served on Saturday or Sunday?
We recommend that you only serve notices on days and at hours when the courts are open, the one exception being if you know your renter works a second or third shift and has agreed to receive the notice from you at a certain time. Otherwise, hire a constable or sheriff.
What about timing? Has the timeline changed for an answer from the tenant to a notice?
The tenant has until three business days prior to the first court event to file an answer, counterclaims, discovery, etc.
Has the timeline to get a hearing changed?
When you e-file, you will not pick a date for the hearing, the court will decide (see above). Motion hearings will be the same, you will no longer choose your dates, the court will decide.
The court will schedule the first court event, a status conference: mediation. If the case is resolved in mediation, an agreement will be drawn up and signed by both parties via Zoom, the judge will sign it, and both parties will proceed according to the agreement. If mediation fails, the second court event will be trial. Under the June 20 standing order, trial cannot occur less than 14 days after the status conference.
Filing a discovery form does not change the date issued by the court. Discovery no longer causes a delay.
Has the day-of timeline for hearings changed?
A status conference will be mailed to both parties, a time will be reserved, eliminating the call of the roll at 9 a.m.
Is there funding available for rental assistance?
There is a lot of rental assistance funding available. The Baker-Polito administration added $100 million to the RAFT (Residential Assistance for Families in Transition) program, increasing the annual grant limit per household from $4,000 to $10,000; $12.3 million to provide tenants and landlords with access to legal representation and related services before and during eviction processes, as well as mediation services; and nearly $50 million for rapid post-eviction rehousing assistance. Read details here.
If a tenant received RAFT money, but did not use it for paying rent, does that prove that their CDC declaration is false?
That should not happen. RAFT is supposed to go directly to the landlord. Contact the RAFT administrator to discuss the situation.
What happens in the case of defaults?
At the first status hearing, your case will be marked for trial; default cannot result in default judgment or dismissal. For failure to appear at the trial, the case will be in default if the defendant does not appear; and will be dismissed if the plaintiff doesn’t appear.
What about no fault terminations?
No fault terminations will proceed in the normal course.
Say my lease ended August 31, can I come to court without a notice to quit?
If you have received any kind of rental payment post-expiration of lease, you have created a new tenancy. If you have not received payment, you don’t need a notice to quit, you can file a summons in that case.
Should I write for “use and occupancy only”?
Consult with an attorney for a discussion particular to your situation.
Can a Landlord Conduct a Physical Move-Out?
No, this is never allowed. Do not lock out a renter or turn off their utilities. Do not remove appliances or furniture originally included in the rental but not identified in the agreement.
Can I Charge a Late Fee? Can I Report my Renter’s Credit History?
If your renter does not provide both notice and documentation that their non-payment is due to “financial impact from COVID-19”, yes. Your renter has 30 days from the missed payment to provide such documentation. That documentation must use the Executive Office of Housing and Economic Development form.
If your renter does provide such documentation, no, you may neither charge a late fee nor report negatively for credit purposes during the moratorium. (Note that the CARES Act imposes additional restrictions on credit reporting and late fees.)
Can I use the Security Deposit to Cover Unpaid Rent?
No, you may not use the security deposit under the eviction moratorium or under existing MA law until the tenancy is over. Then you may use it to cover unpaid rent not lawfully withheld. Contact an attorney before withholding from a security deposit to make sure owed rent was not lawfully withheld.
Can I use Last Month’s Rent to Cover Unpaid Rent?
No, this is expressly disallowed.
Can I use Last Month’s Rent to Cover Unpaid Expenses?
Yes, you may cannibalize last month’s rent to pay for your mortgage, utilities, repairs, and upkeep on the rented premises. You must notify the renter in writing that you are doing so, that the last month’s rent is still considered paid in full, and that the renter is still entitled to full interest for the entirety of the tenancy, however long into the future that may last. Your notice must use the Executive Office of Housing and Economic Development form. (As of April 21, not yet available.)
Note that taking this action will increase cash flow but will decrease net income; you will owe interest you have not received. You will not be able to ask for additional last month’s rent.
MassLandlords Recommendation: do not use last month’s rent.
Do Landlords have Foreclosure Protection?
If you are an owner occupy landlord in a building with four units or less, yes, your lender, or the person who bought your building in foreclosure, or their attorney, may not:
- Publish notice of a foreclosure sale;
- Sell your building;
- Enter your premises;
- Start foreclosure, whether via the courts or privately;
- File a complaint related to the foreclosure.
Any buildings you do not occupy or which are five units or more are not protected from foreclosure by the MA Eviction Moratorium. If the building was your home but it is currently vacant (e.g., you are living with family) the building is not protected.
Do Landlords Get Mortgage Forbearance?
If you are an owner occupy landlord in a building with four units or less, yes, your lender must accept requests for forbearance:
- Up to 180 days long;
- Without additional fees or interest;
- Without reporting you negatively for credit purposes;
- Without a balloon payment due at the end of the moratorium.
Any payments missed as part of forbearance will be due at the end of your loan, not at the end of the moratorium, unless you agree otherwise.
To get forbearance, you must affirm a financial impact from COVID-19. You and your lender may enter into another arrangement other than what is listed above if you both agree.
Can I Apply for Mortgage Forbearance After the Moratorium Expires?
No, you would have had to request mortgage forbearance while the moratorium was in effect.
Can I still Get a Reverse Mortgage?
Yes, and unexpectedly the eviction moratorium expanded what constitutes reverse mortgage counseling to include electronic communications.
Who is eligible for EIDL (the Economic Injury Disaster Loan program)?
Businesses throughout the country with fewer than 500 employees, private nonprofits and veterans’ organizations are all eligible for this program. The business applicant has to have been in operation as of Jan. 31, 2020. (source: SBA.gov)
Can sole proprietor landlords qualify for PPP (Paycheck Protection Program), PUA (Pandemic Unemployment Assistance), and/or EIDL?
Sole proprietors are eligible for EIDL if they have been in business since Jan. 31, 2020 (source: NFIB). They may also apply for the Paycheck Protection Plan. (source: creditkarma). Sole proprietors may be able to apply for the PUA.
Where can I find information about the PUA?
You can find more information about the PUA, including how to apply, at Mass.gov.
Are there any risks for a property owner who applies for both a PPP loan and PUA benefits (can you get both)?
According to Forbes, you may be eligible for PUA funds until your PPP funds become available. However, you should not apply for PUA funds if you are receiving PPP funds.
Can we collect back rent once the pandemic is over?
Yes. Once the moratorium is lifted, you can go to court and seek damages.
Can a mayor impose a moratorium on evictions that applies just to their city?
Not really. A city has legal authority only to the extent the state grants it. Eviction is a state legal process. They can potentially levy fines for not following certain local processes in parallel, but they can’t interfere in summary process without a law granting them permission to do so.
What if my tenant is jeopardizing health and safety by pulling out smoke detectors (to smoke in the unit)?
This may be grounds for an essential eviction, though it is quite difficult to prove smoking (and by extension, the smoke detector removal); consult with an attorney.
If I set up a deferral agreement with a tenant, can I take them to court later if they do not pay as agreed?
Yes, once the moratorium is lifted you have recourse. If they are still in the unit, you will have to file summary process. If they have left the unit for some reason, you can take them to small claims court.
Can I ask my tenant for proof of unemployment and use that for future evictions?
Eviction is not decided on the basis of employment or lack thereof. You can ask your tenant for proof of unemployment, and if they demonstrate that they are unemployed due to COVID-19, then you will not be able to impose a late fee or report negatively for credit purposes. You can ask for just about any economic documentation you like (proof of unemployment or loss of income) at any time, but unless you are seeking to charge late fees or report for credit, it will not matter. If you are looking to report for credit, first be sure that you are not also covered under the CARES Act.
Can we discuss payment plans with our tenants or ask them to pay as much as possible as long as we don’t talk about eviction?
You can discuss payment plans, but your tenant should make the first offer. Suggested verbiage is something along the lines of “I’m hoping we can make a plan that works for both of us.” You can also ask them how much they feel they can pay, if they cannot pay the whole amount. See our COVID-19 Resources page, nonpayment section, for detailed talking points.
Can I discuss Cash for Keys with a tenant?
Yes, Cash for Keys is now a viable option for vacating your rental. Read this article to determine if it could work for you.
Can I evict a tenant who missed payments during the state of emergency as soon as the moratorium is up, or must I wait to issue them a notice to quit until they are late again?
Yes. Notices issued before the moratorium may still be good. You may now issue a notice.Consult with an attorney to be sure you’re in compliance with the CDC moratorium.
Can I ask my tenant to apply for RAFT to pay their back rent?
Yes, in the same vein as asking them to set up a payment plan or asking about their financial situation.
Can I return a security deposit to my tenant to help with food security or other bills?
You can return a security deposit at any time.
Can I ask a potential new tenant to see evidence of savings (bank statements) or how they are managing financially during the pandemic?
Yes. In general, you should be asking to see proof of ability to pay before renting an apartment.
Can I forgive back rent owed and issue my tenant a Form 1099?
Yes, but why? It’s just something else you have to do and not get paid for.
Can I amend a lease or rental agreement to refund LMR or SD back to my tenant?
The moratorium provides for returning last month’s rent, but the terms make it worse than holding onto it. Security deposit can be given back at any time. We do not recommend you do either of these.
If my tenant signed a lease and paid the last month’s rent, but then canceled the tenancy before the first of the month, can I keep that last month’s rent as payment on the first month?
Possibly. A lessor has the obligation to cure losses, so if you could rent the apartment to someone else in time, you have to try, and then refund the first renter their money.
What if my tenant is a foreign student who vacated and left the country without paying rent?
You can still file against them in MA court. You may get a default judgment that can be used if they ever try to come back. If you have foreign cosigners, you can pursue that, consult with an attorney if the amount owed is very large.
Can I leave a scheduled rent increase in place, even if the tenant is not paying?
The moratorium covered late fees, notices to quit and eviction. Scheduled rent increases could still take effect during the moratorium, but could not be enforced. The scheduled increase can be included, however, as part of a court action for back rent.
Webinar: Eviction Moratorium Update
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Eviction Moratorium Horror Stories
To avoid the possibility that rights of parties might be affected during ongoing litigation, we are publishing these statements redacted and anonymously. Journalists who wish to verify can contact MassLandlords staff for additional details or (when permission has been given) introduction to the aggrieved housing provider.
Case ID 16: “[Renter] moved out in the middle of the night. She conveniently left the water in the sink on with a plug. She believes because of governor orders she no longer has to pay back rent.”
“She can’t quit” Landlord sues for breach of contract (not possession), case is pending but expects to be denied, in which case landlords will have no access to the courts whatsoever.
The Eviction Moratorium Webinar recorded Wednesday April 22 from 12p to 1:15p will be processed and posted soon, along with expanded FAQ. Ticket purchase is required to view the recording.