An Act Promoting Housing Opportunity and Mobility through Eviction Sealing (HOMES)

When politicians try to make things secret, we should worry. We should worry more when they promise that greater secrecy will lead to greater economic opportunity. So we should all be very worried – landlords, tenants, and the public at large – about 191-S.824 filed by Senators Joseph Boncore and Sal DiDomenico, a bill titled “an Act promoting housing opportunity and mobility through eviction sealing” with the ironic acronym HOMES.

This eviction sealing bill, and its house duplicate 191-H.3566, would ban the public from knowing about ongoing eviction cases, which currently are searchable at MassCourts.org. If enacted, eviction sealing would lead to higher rents that would reduce both housing opportunity and mobility. It would also erode a bedrock constitutional principle by making secret what is and ought to be publicly available court information.

Overview of Eviction Sealing

“An Act Promoting Housing Opportunity and Mobility through Eviction Sealing” would seal the records of summary-process cases until after judgment. Readers know how few eviction cases go far enough to have an official judgment (think cash-for-keys, or cases dismissed following move-out, with money owed but where the landlord has given up ever getting it).

In this way, the eviction sealing bill would prohibit the public from knowing about the existence of both public Housing Court litigation as well as possible private losses. If a judgment enters, the public would be allowed to know, but only for three years. After three years, the information will disappear down the memory hole.

The eviction sealing proposal would apply to all current cases, not only cases filed after the law goes into effect. Keep in mind that some cases last for two years or more, and that a renter may be applying for their next apartment while litigation is secretly ongoing at their last.

Is this a quirky, no-hoper, dead-on-arrival kind of bill? Hardly. Thirty (30) state legislators from the progressive wing of the Democratic party have already signed on to eviction sealing to demonstrate their support. They are the ones who are making the running these days.

Eviction Sealing will Lead to Higher Rents and Fewer Rental Homes

Sealing court records is not inherently wrong. Secrecy makes sense for matters of national security, domestic violence, and juveniles, situations where disclosure of information would put people at risk of real harm. But summary-process cases are not in that category.

The obvious goal of eviction sealing is to prevent landlords from screening out the frequent fliers, i.e. tenants with regular appearances in Housing Court. The “advocates” think that landlords should not be allowed to know whether an applicant has been the defendant in Housing Court.

Conversely, of course, tenants will not know which landlords are trigger happy, i.e. prone to seek eviction as a matter of routine. From the standpoint of a renter shopping around for good landlords, this seems like information worth having. But perhaps the “advocates” do not think ordinary people should be privy to this information, or perhaps have not thought to use it themselves.

Right now, the availability of this information affects the behavior of landlords and tenants, even if landlords are the primary end users:
Landlords search the court records in order to find out whether the would-be tenants have been taken to court by previous landlords. The greater the number of cases, the greater the risk of the tenants proving to be unreliable payers of rent, or disruptive to their community.

Tenants know the public records are being searched and, therefore, many (perhaps most) try to avoid being taken to court. This is a helpful incentive for communicating with the landlord about problems, for paying rent promptly, and for abiding by the other terms of the lease or rental agreement. It also helps encourage tenants who receive a notice to quit to actually comply, thereby obviating the need for costly litigation in the public courts.

The fact that an applicant has been a summary-process defendant is not dispositive. It can lead to a conversation that lets the applicant explain what happened. It is one factor among several that landlords take into account when choosing among applicants. Landlords can choose how much weight to give this information and decide accordingly. The proponents of eviction sealing do not believe that landlords should be free to make this decision; instead they think that politicians should make the decision for them.

Under eviction sealing, landlords will have less information on which to base their decision. Statistically, the likelihood of any given would-be tenant turning out to be a tardy/non-payer will go up.

How will landlords insure against the increased risk? One way is the obvious one: raising rents. The other way is to move on, find another way to make a living, and exit the business, which is the only sense in which this bill would “promote mobility.” When the laws become so strict that all the scrupulous landlords are driven away, we will be left with only the least well-prepared landlords still operating.

Landlords will Share their Eviction Data

It is worth noting that prior to the creation of MassCourts.org, landlords aggregated their own eviction lists by self-reporting evictions to other landlords. This practice would surely resume through private channels, with no public oversight of what was being said of individual renters. Surely the objective court records are superior to what used to happen.

“Secrecy is the freedom tyrants dream of.” Bill Moyers, Journalist

“An Act Promoting Housing Opportunity and Mobility through Eviction Sealing” would fly in the face of the presumption of public access to court records that is well-established in Massachusetts. How well established? Almost 400 years. Article 48 of the Massachusetts Body of Liberties enacted in 1641 states:

“Every inhabitant of the Country shall have free liberty to search and
review any rolls, records or registers of any Court or office.”

That liberty is no less important today than it was in 1641. Secrecy breeds suspicion and distrust in government and in the fair administration of justice. Massachusetts courts have upheld this liberty from colonial times onward. It is a bedrock constitutional principle.

The fact that some legislators would sacrifice the public’s right to know merely to curry favor with one small constituency (a subset of repeat offender tenants and their politically vocal allies) is disturbing. The fact that they do so to the detriment of the majority, including the tenants who work hard, play by the rules, and expect their new neighbors to be screened as carefully as they were, is even more disturbing. It’s no secret: eviction sealing is one bill that ought not pass.

 

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