MassLandlords Bills Still Active, but Stalled, in 193rd Legislature – An Update

By Eric Weld, MassLandlords, Inc.

In January 2023, MassLandlords filed five bills with the 193rd state legislature to establish laws that would improve housing access, quality and security for owners and renters. The bills had varying levels of support and sponsorship among legislators. But the reality is, in today’s competitive political environment, you need a strong lobbying presence in the legislature to follow up on bills and push them through to enactment. Lacking the funding necessary to hire lobbyists, our bills were, in part, victims of that reality.

For centuries, poisonous white lead was a mainstay ingredient in house paint, plasters, even ointments and cosmetics. Dutch Boy led the way in promoting lead paint in the 20th century, even popularizing the brand among children by selling “Dutch Boy” Halloween costumes and toys. When lead paint was banned nationwide in 1978, lead poisoning statistics began to drop. Dutch Boy was bought by Sherwin-Williams in 1980. Image: cc by-sa Wikimedia Commons.

One bill, proposing a much-needed tenfold increase – from $1,500 to $15,000 – in the tax credit for deleading a dwelling, attracted broad support and looked to have momentum in the early legislature. Gov. Maura Healey likely was responding to progressive supporters of the bill when she included a doubling of the deleading credit in her proposal for the fiscal year 2024 budget. For reasons that are unclear, her deleading item was not included in the final budget she signed in early August. The deleading credit remains at $1,500.

Other bills were assigned to appropriate legislative committees and placed on hearing agendas. We outline the brief legislative histories of each bill proposal below.

Deleading Credit x 10

Perhaps the simplest, or most straightforward, bill we proposed, “An Act to Further Lead Remediation in Rental Housing by Increasing the Deleading Credit” would simply amend an existing law, Section 6 of M.G.L. Ch. 62, by replacing the words “one thousand five hundred dollars” with “$15,000.”

That simple amendment would enable the remediation of thousands more rental properties in the state. As a result, hundreds of thousands more children would be protected from lead poisoning.

The $1,500 deleading credit was codified some 50 years ago, and is now woefully inadequate. The average price to rid a dwelling of lead is $6,000, and if windows are included (for stripping lead paint from window frames and sills), that cost multiplies to $15,000. No wonder only about 10% of pre-1978 (the year lead-based paint was banned for residential use nationwide) dwellings are deleaded in Massachusetts, according to the Department of Public Health.

This bill attracted sponsorship of 18 House and Senate legislators, led Sen. Patricia Jehlen. The bill was assigned a bill number in each legislative branch, H.2802 and S.1844.

Following its submission to the senate clerk by Sen. Jehlen, the bill was referred to the joint committee on revenue on Feb. 16, 2023. This joint committee considers revenues generated via taxation and fees, as well as federal financial assistance.

S.1844/H.2802 was assigned to the agenda for a public hearing on March 28. Sen. Jehlen testified in support of the bill.

“There haven’t been any updates on this bill since its hearing in March,” Sen. Jehlen recently informed MassLandlords. “We are waiting for it to be reported out of committee. A version of it was included in the tax bill that is currently in conference.”

Deleading Increase in FY2024 Budget

Meanwhile, simultaneous to the deleading bill, Gov. Healey included an item in the FY2024 budget to double the deleading credit to $3,000. It’s likely that our deleading credit increase bill was the influence behind her budget proposal.

Despite the governor’s request, the deleading credit increase was not included in the FY2024 budget that she signed in August.

Despite its lack of inclusion in the state budget, the proposal to increase the deleading credit remains active as a standalone bill in the legislature, as Sen. Jehlen mentioned. We will continue to pursue this popular bill.

A Right to Self-Representation

Our bill, “An Act to Equalize Counsel in Eviction Proceedings,” is also a fairly simple proposal. It would allow landlords who have incorporated their businesses to represent themselves in court proceedings, including eviction cases.

As the law stands, corporations and incorporated companies or groups of any kind are required to hire or enlist licensed attorneys to represent them during eviction court proceedings. For small landlords, this can pose a considerable expense, and may unfairly deter or defer a summary process filing, even in the case of a nonpaying tenant.

Many small landlords choose to incorporate, either for tax purposes, or to protect their personal assets in the case of bankruptcy or unanticipated insolvency. It can be a smart business arrangement, and they should be allowed to represent themselves in eviction proceedings if they choose to do so. (Our bill in no way impedes incorporated landlords from hiring attorneys for court representation if desired.) The bill would amend the language of Chapter 221, section 46, to enact that change.

The bill was filed by request by Rep. Susannah Whipps. It was assigned number H.1815. On Feb. 16, the bill was assigned to the house committee on the judiciary. This committee considers legislation related to crime, penalties, sentencing paroles, salaries of court personnel, and other court-related matters.

The bill was scheduled for a committee hearing agenda on May 9, 2023. No further action has taken place.

A Much-Needed Asset Forfeiture Reform Bill

In 2021, MassLandlords submitted a bill to the 192nd legislature to reform the state’s civil asset forfeiture law. That bill, S.2988, was passed by the state senate, 31 to 9, but did not progress to the house’s legislative agenda. Read an article about that bill.

A watered-down bill on the same topic, significantly weakened from our original, was proposed again to the 193rd legislature, introduced by Rep. Jay D. Livingstone. Our bill, H.1577, titled “An Act Relative to Civil Asset Forfeiture Improvements,” petitioned by Rep. Bradley H. Jones Jr., is also active.

Civil asset forfeiture reform is needed to protect property owners, such as landlords, from having their property – cash, cars, homes, boats, jewelry, etc. – unjustly seized by law enforcement. Under current asset forfeiture law, police or other law enforcement officers may take any person’s property if they suspect the property was used for or procured from criminal activity. Charges of a crime are not necessary for such seizure, only the suspicion of crime. In many cases, innocent citizens are unable to reclaim their seized property, even long after any criminal suspicion was dismissed.

Our bill seeks to bring Massachusetts in line with other states, and federal law, by changing the threshold of property seizure from “probable cause” to “preponderance of the evidence.” That would mean, instead of taking someone’s property based on a police officer’s mere suspicion of criminal activity, officers would be required to have evidence or some indication that the property was more likely than not involved in crime.

Other reforms would include: establishing a fund for all seized assets that would support rehabilitation programming and provide state-appointed attorney representation for defendants who can’t afford it; and creating a system for tracking seized property. As it stands, law enforcement agencies, such as police departments, are allowed to keep unclaimed seized money and assets for their own purposes, and those purposes are not required to be disclosed. This creates an obvious conflict of interest, and even an incentive, unintended or potentially intended, to claim reasons that justify taking people’s property.

Both H.1642 and H.1577 were referred to the joint committee on the judiciary and scheduled for a hearing Sept. 7. No further action has been taken on the bills, according to Jones’ office.

Downtown Boston, which sits a stone’s throw from Boston Harbor, is home to some of the state’s most important government buildings. As sea levels rise, rivers overflow and storm surges become more intense with each passing year of climate change, Massachusetts’ government infrastructure becomes more vulnerable to flooding and disruption. Image: cc by-sa Wikimedia Commons.

Protecting State Government from Flood Risk

It is certain that Boston, a coastal city, will experience increased flooding in coming years, from both rising sea levels and intense rainfalls, as well as river and storm surges as a result of climate change. No one knows how much or how severe flooding will become because some scenarios are historic and beyond all projection charts. Depending on several near-future circumstances, Boston could be temporarily under water within this century.

Boston is also the state capital, and the state government infrastructure is mostly located within a mile of the coast. If the city were to be severely flooded, it could drastically disrupt government functions for the entire state. Surrounding neighborhoods are also at risk.

Based on that possibility, MassLandlords proposed a bill, “An Act Establishing the Climate Resilient Capital Task Force.” The bill would establish a governmental task force to study contingency plans for keeping the government running in such a scenario. The task force would consider and make recommendations for the most advantageous solutions, including migrating state government infrastructure and neighborhoods to another city further inland, distributing government buildings and functions in several locations safe from severe flooding, or reinforcing flood protections around Boston’s state government buildings.

The bill was submitted by Rep. David LeBoeuf, and assigned H.736. Also sponsored by Rep. Marc Pacheco, H.736 was referred on Feb. 16 to the committee on emergency preparedness and management, an oversight and advisory committee on issues related to emergency response and recovery, and disaster preparedness statewide. The committee often seeks public input to inform its recommendations.

H.736 was scheduled for a committee hearing on June 12. MassLandlords Executive Director Doug Quattrochi testified in support of the bill at the hearing. No further action has taken place.

Fixing RAFT Shortcomings

RAFT (Residential Assistance for Families in Transition) is the state’s main rental assistance program. Yet, it is not a permanent part of the state budget, is perpetually underfunded, and is riddled with administrative problems.

Our bill proposal, “An Act Relative to Residential Assistance for Families in Transition (RAFT),” would aim to remedy some of these issues by:

1) making RAFT permanent instead of having to go through budgetary approval every year;

2) awarding a full 12 months of rental assistance, in arrears, going forward, or some combination. Currently, RAFT falls short in many cases because it doesn’t adequately fund rents going forward, leaving strapped renters to negotiate with landlords who are often forced to accept a loss or evict;

3) requiring rental assistance agencies (RAAs) to adhere to subcontractor requirements, or some process, such as competitive bidding, that would necessitate their self-improvement. As it stands, RAAs do not undergo any kind of procurement process and therefore lack incentives to optimize their products and efficiencies. The result is, frequently and disastrously, slow, incompetent service, resulting in lost or unfairly rejected applications for assistance, and many unnecessary evictions;

4) making rental assistance geographic data publicly available, to allow scrutiny of assistance distribution and potentially avoid discrimination. In 2021, MassLandlords sued the Department of Housing and Community Development (DHCD) – now called the Executive Office of Housing and Livable Communities (EOHLC) – to release addresses (but not names) of rental assistance recipients when we discovered that tens of thousands of applications had been lost or errantly timed out. The case is ongoing.

Two bills, H.1317 and H.1374, were petitioned by Rep. Daniel M. Donahue and Rep. Priscilla S. Sousa, respectively, and remain active in the 193rd legislature. Both have been referred to the joint committee on housing, which oversees general housing, affordable housing, subdivision and zoning issues. Neither bill has been scheduled for a hearing and no further action has taken place.

(Two similar bills were proposed by the Mass. Housing Coalition. MassLandlords attempted to collaborate with housing advocates on bill proposals, but could not reach agreement on the issue of public release of rental assistance information.)

Meanwhile, Gov. Healey has reenacted Ch. 257 of the Acts of 2020, a pandemic-related law that requires courts to suspend any eviction proceedings against tenants who have active rental assistance applications. This law further compounds landlords’ difficulties in the absence of RAFT reforms. Especially problematic is Ch. 257’s lack of an enforced time limit for awarding rental assistance. As things stand, a tenant could not pay rent for months, then apply for rental assistance, which can take another few months to resolve. At that point, arrears could build up to five figures owed the landlord. Meanwhile, the RAFT limit is capped at $7,000 for any 12-month period, which is almost sure to fall short of rent due by the time it’s received. At the very least, with Ch. 257 in place, rental assistance should change from a capped dollar amount to an award based on months of rent owed.

More Bills to Come

It would be disingenuous to claim that we are satisfied with the lack of progress on our recent bill proposals. Especially in the cases of the deleading credit and civil asset forfeiture reform, we were encouraged by early enthusiasm and legislative advancement of our bills.

Getting a bill to the point of becoming law is difficult, and, unfortunately, requires lobbying money and presence. We agree that bill proposals should be subject to comprehensive public input. But our bills received strong initial support because they offer solutions and improvements to our state’s intractable housing crisis, among other problems. We are disappointed to see them stall in the state legislature.

But we are not daunted, and we will continue to propose common-sense (and clearly written) legislation that seeks to improve people’s lives and housing in the commonwealth. We will also continue to appeal to our members and readers to help support our proposals by contacting your legislators, and by becoming a property rights supporter.