Open Letter to Attorney General Maura Healey

Peter Vickery, Esq.
Legislative Affairs Counsel

Dear Attorney General Healey:

On May 8, 2020, your office issued an advisory on residential evictions. Its interpretation of Chapter 65, the statute that limits the right of access to the courts for housing providers (landlords) ignores certain statutory language that is important, and reads into the statute language that is not there. I urge you to either amend the advisory or withdraw it.

Chapter 65

Chapter 65 allows housing providers to file for summary process only where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person lawfully on the property or of the general public. But it bars housing providers from taking tenants to court for non-payment of rent. Under Chapter 65 (as opposed to the Declaration of Rights) no access to the courts is the rule, and the health/safety provision is the exception.

Statute in Derogation of Liberty

Chapter 65 takes away a fundamental liberty, namely access to the courts, which (as I have mentioned elsewhere) is one of the liberties guaranteed by the Massachusetts Declaration of Rights. Here in Massachusetts it is well established that statutes in derogation of liberty should be strictly construed and interpreted narrowly. They should be narrowly tailored to serve a compelling and legitimate government interest and strictly construed to comply with requirements of substantive due process, as the Supreme Judicial Court held in the Matter of E.C., 479 Mass. 113 (2018).

In other words, if a statute takes away a basic right, the courts should interpret it narrowly so as to confine the damage to the individual’s liberty interest. But the advisory says the opposite, i.e. that it is the fundamental right that should be narrowly construed:

“Evictions can be brought only where a tenant (1) violates lease terms or engages in criminal activity, and (2) the violation may impact the health or safety of others who are lawfully on the premises. This exception is narrow and should only be used where there is a serious health or safety concern that can’t otherwise be addressed.”

That is not what the statute itself says. Not at all. First, the statutory language about impacts on health/safety applies not only to people lawfully on the premises but also to the general public.

General Public

The statute expressly permits housing providers to issue notices to quit and to ask the courts to evict tenants whose criminal activity or lease violations “may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.” The advisory omits this fact. So a reasonable reader would conclude that the statute does not allow the eviction of tenants whose actions in violation of the criminal law or the lease may impact the health or safety of the general public, which conclusion would be  wrong. Based on this mistake, providers might well refrain from taking steps to address activities that they can—and should—lawfully address. I urge you to include the reference to the general public in a revised advisory.

Not a last resort

I also urge you to remove the statement that “this exception is narrow and should only be used where there is a serious health or safety concern that can’t otherwise be addressed.” Chapter 65 does not say “serious health or safety concerns” nor does it state that eviction must be the very last resort.

If the Legislature had intended to say that housing providers may ask the courts to evict tenants only where the criminal activity or lease violations “are likely to seriously affect the health or safety of another person and cannot be addressed short of eviction” it would have said so. But it did not.

More fundamentally, the right of access to the courts is guaranteed by Article 11 of the Declaration of Rights. The advisory chills the exercise of this right by suggesting, wrongly, that housing providers should seek legal redress only as a last resort. The Housing Court has excellent staff and other resources for resolving difficult disputes, and your office should not be deterring residents from seeking access to them.

Conclusion

The advisory ignores the fact that the statute allows housing providers to ask the courts to evict tenants whose criminal activity or lease violations may impact the health or safety of the general public.  It also suggests that the health/safety provision “should only be used where there is a serious health or safety concern that can’t otherwise be addressed,” reading into the statute a provision that the Legislature did not adopt.  In addition to leaving out some words and adding others, the advisory says that the right of access to the courts that is the “narrow exception,”  which is not what the appellate decisions say about statutes in derogation of liberty. On the contrary, according to precedent it is the liberty that should be construed broadly, and the exception to that liberty (in this case the barring of the courtroom doors for all but health/safety cases) that should be construed narrowly.

Accordingly, I respectfully request that you either revise the advisory to address the foregoing or rescind it entirely.

Sincerely,

Peter Vickery, Esq.