Future Policy » Eviction Sealing » An Act promoting housing opportunity and mobility through eviction sealing (HOMES) 193 S.956 H.1690

An Act promoting housing opportunity and mobility through eviction sealing (HOMES) 193 S.956 H.1690

Summary

Eviction sealing would let renters seal their prior evictions.

It would add work for the courts, as potentially hundreds of thousands of petitions would be filed, each with its own notices and hearings.
It would offer limited benefit to renters, because the good renters are bucketed in with the bad.
It would require journalists obtain court permission before writing stories.
It would require debt collectors obtain court permission before disclosing judgments.
It would remove landlords’ ability to evaluate most housing history on a rental application.
It would drive landlords to tougher screening on income and credit score.
It would require credit reporting agencies to continuously monitor all dockets ever for their disappearance, or else to omit all eviction records from their reports.

The whole idea of eviction sealing should be scrapped and replaced with anti-discrimination protections like we have for criminal records. We have drafted the alternative.

Video Summary

The First Hearing was May 9th

MassLandlords' Executive Director attended in person and explained how eviction sealing won't work the way the legislature hopes it would.

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Read Our Testimony

Coversheet and table of contents for the MassLandlords eviction sealing testimony.

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Official Links

H1690
S956

Full Text Explained

Policy Idea Opposed by Membership

Our ongoing policy priorities survey shows a majority of members strongly oppose this policy proposal.

Bill Opposed by Staff

MassLandlords staff oppose bill text below.

“SECTION 135A. Chapter 239 of the General Laws is hereby amended by adding the following section:-	Chapter 239 is “Summary process (eviction) for possession of land.”
Section 15. (a) The following words, as used in this section, shall have the following meanings unless the context clearly requires otherwise:- “Consumer report”, written, oral or other communication of any information by a consumer reporting agency bearing on a person’s credit worthiness, credit standing or credit capacity that is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the person’s eligibility for rental housing or other purposes authorized under section 51 of chapter 93.	A “consumer report” is defined as anything used for evaluating a rental application. This definition parallels that of G.L. Chapter 93 Section 50, which defines consumer credit reports as information used to evaluate creditworthiness. That law (Section 51) exempts rental property owners from the requirement to obtain a written release before screening for housing history. This bill seems to intend to override that, but fails to edit that section.
“Consumer reporting agency”, individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or other entity that, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties.	A “consumer reporting agency” would include your screening company. This expands the definition of “Consumer reporting agency” in G.L. Chapter 93 Section 50 by including different types of entities, but otherwise is the same.
“Court”, the trial court of the commonwealth established pursuant to section 1 of chapter 211B and any departments or offices established within the trial court.	Records could be sealed in any court with jurisdiction over summary process.
“Court record”, paper or electronic records or data in any communicable form compiled by, on file with or in the care custody or control of, the court, that concern a person and relate to the nature or disposition of an eviction action or a lessor action.	Every document the courts produce in connection with a summary process case filed by a landlord or a small claims case filed by a renter would be covered. Small claims cases filed by landlords are not covered (possible drafting error: see “lessor action”).
“Eviction action”, a summary process action under this chapter to recover possession of residential premises.	All evictions are covered.
“Lessor action” any civil action brought against the owner, manager or lessor of residential premises by the tenant or occupant of such premises relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, breach of any material provision of the rental agreement or violation of any other law.	A category of cases is defined as civil suits brought by a renter or occupant against their landlord. This wording would by implication extend rights to trespassers and unauthorized occupants to bring suit against an owner, manager or lessor. Possible drafting error: The way “lessor action” is used elsewhere in this bill, it implies a landlord suing a renter. This would be a serious drafting error, as “lessor action” is here defined as something brought by a renter against a landlord.
“No-fault eviction” any eviction action in which the notice to quit, notice of termination or complaint does not include an allegation of nonpayment of rent or of violation of any material term of the tenancy by the tenant or occupant; provided, however that a “no-fault eviction” shall include an action brought after termination of a tenancy for economic, business or other reasons not constituting a violation of the terms of the tenancy.	Sneaky! This broad language defines a whole class of cases one would normally not consider a no-fault eviction to be a no-fault eviction. We know from other law that tenancies are terminated by the issuance of a notice to quit. This bill says that after a no-fault notice is used to terminate, any other case brought by a lessor including a for-cause eviction will also be treated as a no-fault eviction case.
(b) Any person having a court record of a no-fault eviction on file in a court may petition the court to seal the court record at any time after the conclusion of the action, including exhaustion of all rights of appeal. The petition shall be on a form furnished by the trial court of the commonwealth, signed under the penalties of perjury, and filed in the same court as the action sought to be sealed. If an action was active in more than 1 court during its pendency, then a petition may be filed in each such court. Notice shall be given to parties to the original action. The court shall comply with the petitioner’s request provided that the record only pertains to a no-fault eviction and the action has concluded with all rights of appeal exhausted. If no objection is filed by a party within seven (7) days of filing the petition, such court may, in its discretion, process such petitions administratively without a hearing.	As soon as a no-fault eviction is over, it may be sealed. This is a great example of how “splitting the difference” on eviction sealing helps no one. This bill is in its third round of edits (fifth year) and still no closer to helping either side. Earlier versions of this bill sealed no-fault cases upon filing. This was clearly wrong, so now we would seal no-fault cases only after conclusion. This is still wrong: Renters may be in court with a no-fault eviction that is really not their fault (a landlord who has not tried “cash for keys”). Such a renter should be finding a new place to live. While the case is ongoing, the case remains public. Now every apartment to which the renter applies is going to see the eviction. It’s possible in some places the renter will be unfairly denied, making this a very weak renter protection. The root cause of allegedly improper landlord screening practices still has not been addressed. On the other hand, a renter may be in court as part of a broader story of serious disagreement with the landlord. Now as soon as the case is concluded, this story is unknowable. Even if the renter loses, their case may be sealed leaving them free to repeat the same bad behavior on their next unsuspecting landlord. This wording fails to address concerns of renters and landlords both. We are on the wrong path with eviction sealing.
(c) Any person having a court record in an eviction action for non-payment of rent on file in a court may, on a form furnished by the Trial Court and signed under the penalties of perjury, petition the court to seal the court record. The petition shall be filed in the same court as the action sought to be sealed. If an action was active in more than one court during its pendency, then a petition may be filed in each such court. Notice shall be given to parties to the original action. The court shall comply with the petitioner’s request provided that: the record of the action which the petitioner seeks to seal concluded, including exhaustion of all rights of appeal, not less than 4 years before the request and no eviction action for nonpayment or lessor action has been brought against the petitioner within the Commonwealth in the 4 years preceding the request; and (b) the petitioner certifies on the petition that the non-payment of rent was due to an economic hardship and such economic hardship has rendered them unable to satisfy the judgment. If no objection is filed by a party, the court may, in its discretion, process such petitions administratively without a hearing. If an objection is filed by a party, within seven (7) days of filing the petition, the Court shall conduct a hearing to determine the petitioner’s compliance with the foregoing conditions and may require the petitioner to complete a Financial Statement on a form furnished by the Trial Court.	A nonpayment eviction may be sealed if all of the following conditions are met: The case ended four years ago or more; Since then, there have been no evictions and the renter has not sued any landlord; The renter swears that they had an economic hardship, and still have an economic hardship that prevents them from paying off the judgment. This is another example of a weak tenant protection that will make it impossible for landlords to screen. A renter with a nonpayment case they wish to have sealed must show two contradictory things: first, that they have been rich enough to avoid housing court over the past four years, and second, that they are poor enough to be excused for not paying the prior judgment. This combination ensures that only lawyers will win, as both renter and landlord argue over whether the case should be sealed. A landlord with a nonpayment case will also lose. A judgment for money is good for 20 years. Debt collection agencies may monitor the news in combination with court records to identify when a judgment may become collectible (e.g., renter wins a state Lottery promotion), and may purchase this judgment from a landlord. Under this bill, that will never happen. Nonpayment cases disappear while the judgment remains in effect. It’s now up to each individual landlord to monitor their renters for 20 years to determine if a judgment has become collectible.
(d) Any person having a court record of a fault eviction on file in a court may, on a form furnished by the Trial Court and signed under the penalties of perjury, petition the court to seal the court record. The petition shall be filed in the same court as the action sought to be sealed. If an action was active in more than one court during its pendency, then a petition may be filed in each such court. Notice shall be given to parties to the original action. The court shall comply with the petitioner’s request provided that the record of the action which the petitioner seeks to seal concluded, including exhaustion of all rights of appeal, not less than 7 years before the request and no eviction action for fault or lessor action has been brought against the petitioner within the Commonwealth in the 7 years preceding the request. If no objection is filed by a party, within seven (7) days of filing the petition, the court may, in its discretion, process such petitions administratively without a hearing.	A for-cause eviction may be sealed if all of the following conditions are met: The for-cause case ended more than 7 years ago; No other for-cause case has been brought against the renter since. For a small landlord who cannot afford even a single eviction, this is no reassurance, especially where the for-cause case was a nightmare scenario that dragged on for multiple years. Also, this wording is a good example of how a law can create a perverse incentive. If a landlord wanted to make sure that a renter’s for-cause eviction were never sealed, all they would have to do is file another for-cause eviction against them every seven years. They don’t have to win, they just have to file, and the prior record becomes unsealable. Does this really help renters defend against bad landlord behavior? No.
(e) Any person having a court judgment against them in a civil action commenced pursuant to General Laws c. 139 Section 19 on file in a court may, on a form furnished by the Trial Court and signed under the penalties of perjury, petition the court to seal the court record. The petition shall be filed in the same court as the action sought to be sealed. If an action was active in more than one court during its pendency, then a petition may be filed in each such court.	This is catch-all language that applies to all evictions being sealed. The court will make an eviction sealing request form. In each court that heard the case, the form has to be used to seal the case in that court.
Notice shall be given to parties to the original action.	In each case, the bill requires the landlord to receive notice of a renter’s request to seal their record. The bill does not, however, notify any consumer reporting agencies that previously obtained the court record. Notifying all possible CRAs would require a solution neither required nor even contemplated in the bill. The Trial Courts could publish a list of sealed cases by date sealed and docket number. Then all CRAs could review the registry to update their databases accordingly. This is not in the bill. Absent coordinated publication of newly sealed cases, if a consumer reporting agency wanted to comply with the law, they would have to either: Continuously monitor all eviction cases to find which ones have disappeared and are presumed sealed; or Conservatively treat all cases as sealed as soon as they could be. This will likely have the unintended consequence of CRAs removing data from their databases that is not sealed: No no-fault cases or common nuisance cases will be added to a consumer report, since they would have to come off again in an uncertain matter of months; All non-payment cases will be deleted after four years; All remaining cases will be deleted after seven years.
The court shall schedule a hearing to determine: (a) whether such action which the petitioner seeks to seal concluded, including exhaustion of all rights of appeal, not less than 7 years before the request and no eviction action for fault, or action pursuant to General Laws c. 139 Section 19, has been brought against the petitioner within the Commonwealth in the 7 years preceding the request, and such petitioner has not been convicted of any criminal offense reference in Chapter 139, Section 19 during such 7 year period; and (b) whether the sealing of such record is the interest of justice and public safety. Notwithstanding any provision to the contrary, where the plaintiff did not obtain a judgment in its favor, the defendant may petition to seal the court record at any time after the conclusion of the action, including exhaustion of all rights of appeal.	Any judgment in an eviction for common nuisance can be sealed after 7 years, or immediately if the plaintiff does not win. “Common nuisance” means prostitution, alcohol, illegal casinos, drugs, explosives, other crime, violence against public housing authority staff. Note the contrast with for-cause evictions: in a for-cause eviction brought under other law, the case remains open for 7 years regardless of who wins. In common nuisance cases, these cases can be sealed immediately if case cannot be proved.
(e) Upon motion and for good cause shown, or as otherwise authorized by this section, court records sealed under this section may at the discretion of the court and upon a balancing of the interests of the litigants and the public in nondisclosure of the information with the interests of the requesting party, be made available for public safety, scholarly, educational, journalistic or governmental purposes only, provided, however, that the personal identifying information of the parties involved in the action, shall remain sealed unless the court determines that release of such information is appropriate under this subsection and necessary to fulfill the purpose of the request. Nothing in this subsection shall be deemed to permit the release of personal identifying information for commercial purposes.	This bill would seek to license journalists, but only journalists who are not engaged in “commercial purposes” like selling newspapers. If NECN or another “commercial” news outlets wanted to write a follow-up story four years from now about, for example, Stoneham Police Officer Detective Sgt. Robert Kennedy, they could not if Detective Sgt. Kennedy had sealed his cases. There is explicitly no permission to use a sealed record for commercial reporting. This language is highly problematic and antithetical to a free society.
(f) Nothing in this section shall prohibit the dissemination of information contained in a record sealed pursuant to this section as the court deems necessary or appropriate: (i) for the collection of a money judgment; (ii) to pursue a criminal investigation; (iii) to pursue a criminal prosecution; or (iv) where information in the sealed record was entered into evidence in a criminal prosecution that resulted in a criminal charge.	This section would interpose serious barriers in debt collection operations. A judgment lasts for 20 years, but a nonpayment case will be sealed after four years. Each debt collection operation in the subsequent 16 years would have to obtain explicit court approval. Disclosing a judgment to others for “collection of a money judgment” is only possible if “the court deems necessary or appropriate.”
(g) Nothing in this section shall prohibit a person or their representative from petitioning the court to obtain access to sealed eviction records in which the person is a party.	You can ask the court to unseal your own record for you. Possible drafting error: The bill does not say the court must do it, only that you may ask.
(h) A consumer reporting agency shall not disclose the existence of, or information regarding, an eviction record sealed under this section or use information contained in a sealed court record as a factor to determine any score or recommendation to be included in a consumer report unless the court record was available for inspection with the court not more than 30 days of the report date.	A drafting error here suggests CRAs have 30 days to notice a case has been sealed and remove it from their reports. There is no provision to notify CRAs.
A consumer reporting agency may include in a consumer report, information found in publicly available court records, provided, however, that the consumer report shall include a person’s full name, whether an eviction action was a fault eviction, a no-fault eviction or a lessor action,	Possible drafting error: non-payment has been omitted as a possible case descriptor.
and the outcome of any eviction action if such information is contained in the publicly available court record. Information contained in a sealed court record shall be removed from the consumer report or from the calculation of any score or recommendation to be included in a consumer report not more than 30 days of the sealing of the court record from which it is derived.	Poor drafting here omits the word “within”. CRAs have 30 days to notice a record is sealed.
Any consumer reporting agency that violates this subsection shall be liable to the person who is the subject of the consumer report in an amount equal to the sum of any actual damages sustained by the consumer as a result of the failure and, the costs of the action, including reasonable attorney’s fees.	The enforcement mechanism here requires a renter to have suffered actual damage, to make a complaint against the CRA via the Attorney General (see below), and to prevail. This reduces the entire eviction sealing exercise to a very time-consuming discrimination process, with the same enforcement-dependent outcomes, but with much greater complexity and use of court staff time.
The attorney general shall enforce the provisions of this paragraph and remedies provided hereunder shall not be exclusive. Nothing in this subsection shall be deemed to waive the rights or remedies of any person under any other law or regulation.	Because only the attorney general has enforcement power, this gives fewer venues for a complaint (the courts do not have jurisdiction to hear complaints, nor does the Massachusetts Commission Against Discrimination).
(i) An application used to screen applicants for housing or credit that seeks information concerning prior eviction actions of the applicant shall include the following statement: “An applicant for housing or credit with a sealed record on file with the court pursuant to section 15 of chapter 239 of the General Laws may answer ‘no record’ to an inquiry relative to that sealed court record.	Poor drafting probably meant the quote to end. Basically, a disclaimer would have to be put on a rental application encouraging renters to seal records and then state “no record” in response to a question about prior litigation.
No party shall be liable for any violation of the foregoing provision unless such party has first been issued a written warning from the Attorney General’s office and has failed to address the violation within ninety (90) days of such notice.	This language seems to exempt every single owner from the rental application language until the AG communicates with them specifically. This likely signals poor drafting.
The petition provided by the Court for the sealing of records as provided herein and any order granting such petition shall contain the following notice: “An applicant for housing or credit with a sealed record on file with the court pursuant to section 15 of chapter 239 of the General Laws may answer ‘no record’ to an inquiry relative to that sealed court record.”	This wording would have to appear on the court form to request a record be sealed.
(j) A party who obtains a judgment or enters into an agreement in an eviction action solely for nonpayment of rent, shall, not more than 14 days after satisfaction of the judgment or agreement, file with the court in which the judgment or agreement was entered a notice of satisfaction of the judgment or agreement.	If a renter pays off the amount a court said they owed, the landlord must tell the courts they have paid. This is good! The language also covers mediated agreements, which is nonsensical. Most mediated agreements have no discernible “win/lose” status for either the renter or the landlord, because they are designed to keep both in business together indefinitely. If a renter and a landlord live happily forever after until one or the other dies, must the surviving party file a satisfaction of mediated agreement? What about if a renter decides to move out after many years of post-mediation stability? This seems poorly conceived.
A party that has satisfied such a judgment or agreement may, upon noncompliance with this subsection by the other party, file a petition for the judgment or agreement to be deemed satisfied, with notice to the parties to such action. The court shall comply with the petitioner’s request provided that the record only pertains to an action for nonpayment of rent and the judgment or agreement has been satisfied. If no objection is filed by a party within seven (7) days of filing the petition, such court may, in its discretion, process such petitions administratively without a hearing.	If a landlord fails to report a judgment as satisfied, a renter can ask the court to report their judgment as satisfied.
Upon the filing of a notice of satisfaction of judgment or an agreement, or court judgment deeming the judgment or agreement satisfied, a party may petition the court to seal the court record pertaining to that action.	In addition to all the other ways a case can be sealed, if a judgment is satisfied, then the case can be sealed regardless of the timelines above.
The petition shall be on a form furnished by the Trial Court of the Commonwealth, signed under the penalties of perjury, and filed in the same court as the action sought to be sealed. If an action was active in more than 1 court during its pendency, a petition may be filed in each such court. Notice shall be given to parties to the original action. Such court shall comply with the petitioner’s request and seal the court record if the judgment or agreement has been satisfied and the action has concluded with all rights of appeal exhausted with no objection filed by a party within seven (7) days of filing the petition. The court may process such petitions administratively without a hearing.”; and	The same court procedure for sealing applies to satisfied judgments.
SECTION XX. Section 52 of chapter 93 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended, in subsection (a), by inserting at the end thereof the following clause:- (7) eviction records sealed pursuant to section 15 of chapter 239.	This bill would require all other consumer reports to defer to this section on eviction records. SECTION XX. Subsection (h ) of section 15 of Chapter 239 shall take effect upon passage.