On April 20, 2020 the Governor signed into law 191-H.4647, “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency.” This bill took effect immediately. This article reviews the law from the point of view of a landlord and gives a roadmap for Massachusetts owners and managers.
On April 16, MassLandlords conducted a survey among members about the MA eviction moratorium.
How Long does the MA Eviction Moratorium Last?
As of August 4, the earliest possible notice was October 19 unless the governor extends the moratorium again.
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 ends 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 comes sooner, unless the Governor extends the moratorium. The Governor has a strange power in this case: if the Governor never cancels the state of emergency, they can make the eviction moratorium last up to 90 days longer. They can repeat this as often as they want, effectively making the eviction moratorium permanent at their sole discretion. (See Section 6, lines 117 through 123.)
Governor Baker extended the eviction moratorium once through October 17 at midnight. That’s a Saturday night, you can’t serve notice on a Sunday, so effectively the moratorium has been extended to October 19 9am, and it can be extended again.
Note that every affected court case will have its timers reset to the end of the moratorium. Every affected case will be paused during the moratorium.
Reopening businesses (repealing Order 13) has nothing to do with the state of emergency. As of May 26, the state of emergency remained in effect and there was no scheduled end to the eviction moratorium.
Are all Evictions Banned?
No, the MA eviction moratorium defines a “non-essential eviction,” and stops only non-essential evictions.
What’s a Non-Essential Eviction?
The following evictions are non-essential and are paused by the moratorium:
- No fault/no cause
- Any fault/cause except
- Criminal activity that impairs health and safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property, or the general public (collectively, “others”);
- Lease violations that may impact the health or safety of “others”.
In other words, the only evictions that can proceed will be directly related to health and safety.
Does a “person lawfully on the subject property” include me, my team, or my contractors? Yes, landlords and their agents have permission to be on their property, provided they give notice if entering a rented premises. We are still able to evict if a renter puts our own health and safety at risk.
Can I evict for nonpayment?
Can I evict for an illegal dog, drug dealing, noise, or unauthorized residents?
No, unless you prohibit animals, drugs, noise, or unauthorized residents in a written lease and you can demonstrate that this violation could have a measurable, provable impact on the health of someone else.
Does it have to be a lease? To be determined. “Tenancy at will” probably counts as well, but the law is poorly drafted and says “lease”.
What’s the deal with the Small Business Protection?
The MA eviction moratorium contains unexpected language about a “small business premises unit”. A “small business premises unit” is defined as a space rented by a for-profit or non-profit that is neither controlled by nor in control of:
- a multi-state entity;
- a multi-national entity;
- a publicly traded entity; or
- an entity with 150 or more full-time equivalent employees.
In other words, a “small business.” The law says you can continue a small business eviction that started before the COVID-19 state of emergency began.
It’s unclear what the intent of this section was. This section seems intended to help small businesses, but it permits more evictions of small business than it does of residential renters. For instance, if a small business was not paying rent prior to the pandemic, that case can still proceed.
If a Renter Wasn’t Paying Prior to the Pandemic, Can I Evict?
No, the MA eviction moratorium makes no distinction between renters who were already in arrears prior to the pandemic and those who stopped paying due to COVID-19. All non-essential evictions are paused.
Can I Send a Notice to Quit?
If you are pursuing a non-essential eviction, no, you may not:
- Terminate any tenancy, even if invoking a clause in a written agreement;
- Send any notice to vacate, even if worded as a friendly request.
You may not send a legal notice to quit, which has language about vacating.
If you are pursuing an essential eviction under the definition above, yes, you can send a notice. We recommend you contact an attorney first.
Can a Court Accept My Filing?
If you are pursuing a non-essential eviction, no, the courts may not:
- Accept a writ, summons, or complaint for filing;
- Enter a judgment or a default judgment for a plaintiff for possession of a residential dwelling unit or small business premises unit;
- Deny a defendant’s request for a stay of execution or a continuance (delay);
- Schedule a court event, including a summary process trial.
Or in plain English:
- The clerk will turn you away if you try to file;
- If the renter doesn’t show up, they don’t automatically lose;
- A renter can ask to stay past their previous move out date, and the courts must allow this;
- There are no trials or hearings of non-essential evictions.
If you are pursuing an essential eviction under the definition above, the courts may still decline to accept for filing, or may decline to hear, according to their standing orders. This is a different thing from the eviction moratorium, representing another layer of difficulty. Contact an attorney if you believe you have an essential eviction.
Does the law really say “summons, or complaint,” aren’t these the same document in summary process? Yes, this is poor drafting.
Does this apply to district court, housing court, and Boston municipal court? Yes, the MA eviction moratorium applies to every court with jurisdiction over housing.
My Case Was Already Started, Will It Keep Going?
If you are pursuing a non-essential eviction, no, your case deadlines are paused until the expiration of the moratorium, then your case will resume.
If you are pursuing an essential eviction, your timeline may still be delayed by Housing Court standing orders. Contact an attorney.
Can a Sheriff or Constable Conduct a Physical Move-Out?
If you are pursuing a non-essential eviction, no, physical move-outs cannot take place during the moratorium.
If you are pursuing an essential eviction, yes.
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.)
Does this Mean Everyone Lives Rent-Free for the MA Eviction Moratorium?
The intent is “no”, the law clearly says renters are still obligated to pay rent and landlords are still entitled to sue to get it back.
The practical effect for many is “yes,” since judgments entered are rarely paid, and cannot under MA law be ordered paid if the owing party receives any public assistance.
Are Additional Restrictions Possible?
Yes, the Executive Office of Housing and Economic Development was granted regulatory authority to impose additional rules on landlords. As of April 21, we had not heard what other regulations were being considered.
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 as permitted by the eviction moratorium.
Do Landlords Get 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.
Does This Mean I Don’t have to Pay my Mortgage?
No, nothing in the MA eviction moratorium means you don’t need to pay your mortgage. Payments are at best rescheduled, and for most landlords, are still due on time.
Can I Apply for Mortgage Forbearance After the Moratorium Expires?
No, you must request mortgage forbearance while the moratorium is in effect.
Can I still Get a Reverse Mortgage?
Yes, and unexpectedly the eviction moratorium expands 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.
What should I do if I am selling the building and the buyer wants to move into a unit that is occupied? What if my tenant is month-to-month and still won’t leave?
The tenant cannot be evicted as long as the moratorium is in place. The buyer would either need to wait to purchase the building, wait to move in or buy another building.
If a tenant interferes with a sale by not leaving, do I have recourse?
No. If your sale is conditioned upon certain units or the entire property being delivered vacant, your sale may fall through unless you can get the buyer to waive this condition. Note that some sellers may resort to “cash for keys”, but as described above, this is not permitted. You open yourself to triple damages plus attorney’s fees if you get caught. Don’t say we didn’t warn you.
Can a tenant stay even if the lease is up?
Yes. You cannot evict for overstaying a lease.
Can I let a lease lapse to tenant-at-will?
This is the default; a lease that ends with the tenant remaining in the premises and the landlord’s willingness to accept payment becomes a tenancy at will under substantially the same terms as the lease.
Can I contact a tenant about signing a new lease, and if so, can the lease include changes?
Yes, but remember the tenant is not obligated to sign.
Can you ask a tenant to leave so the building owner can move in? What about family?
No and no. You can neither evict nor make a request to owner-occupy or give the unit to family.
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.
Must I obey Massachusetts rules if my company is registered out of state and licensed to operate in MA?
Yes. You must comply with the eviction moratorium because your units are located in Massachusetts.
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.
If I sent my tenant a Notice to Quit before the pandemic started, but they are still in the building, do I need to send a them a new Notice to Quit?
Any notices that were issued prior to the eviction moratorium will be considered valid once the moratorium is lifted. They do not need to be reissued.
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. I’m thinking about rent for April but also for May, June and beyond.” 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?
We are not recommending you discuss voluntary move-outs of any kind at this time, even if both parties seem willing. The exception would be if your renters (especially students) have expressed interest in moving and they were the first to bring it up. Make sure you get everything in writing.
Can I still send a tenant a notice about late fees or payments that occurred before the moratorium?
During the moratorium, do not send your tenant any notices that could affect either party’s rights, regardless of when the infraction occurred, except in consultation with an attorney. You can send the Notice of Missed Payment During COVID-19. You can charge a late fee only if they fail to demonstrate within 30 days of a missed payment that their nonpayment was due to COVID-19. You cannot enforce collection of late fees.
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 issue a notice as soon as the moratorium expires. Consult with an attorney to be sure you know whether the moratorium is still in effect.
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. You cannot mention eviction.
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 owned 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 covers late fees, notices to quit and eviction. Scheduled rent increases can still take effect, but cannot be enforced.
Do I have to tell my tenants about the form they can fill out stating they have a hardship from Covid-19?
No, use of the Notice of Missed Payment During COVID-19 form is optional.
MA Eviction Moratorium Conclusion
The Massachusetts eviction moratorium is one of several layers of legal changes affecting the way owners and managers operate through COVID-19. The Federal CARES Act restricted nonpayment notices on federally subsidized rentals and established mortgage forbearance and foreclosure protection in buildings with Fannie/Freddie backed mortgages. The Massachusetts courts have standing orders that have delayed cases. Now the Massachusetts eviction moratorium is the most restrictive and the most difficult law for landlords of the three. When in doubt about what to do, consult with an attorney.
Webinar: Eviction Moratorium Update
To view all of this presentation, you must be logged with webinar access.
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.