Under the CDC Moratorium Is It Legal to Send a Notice to Quit?

By Peter Vickery, Esq., Legislative Affairs Counsel

Some MassLandlords members are asking me, “Are we allowed to send a notice to quit after October 17?”

Unless the Massachusetts Legislature passes a new law, the state-level eviction moratorium will expire the night of Saturday, October 17. At that point a different (more limited) eviction moratorium will take effect in Massachusetts, i.e. the one that the federal Centers for Disease Control (CDC) ordered. The CDC eviction moratorium will expire December 31, 2020.

For the duration of the CDC moratorium (October 18 - December 31) is it lawful to send a notice to quit?

According to the CDC itself, the answer appears to be “yes.” But because the CDC order creates some ambiguity, housing providers should brace for arguments that the answer in Massachusetts will turn out to be “no”.

Because violations of the CDC eviction moratorium could result in a $500,000 fine and a year in jail, housing providers must weigh carefully the cost of another several month’s nonpayment against the cost of an inadvertent but serious noncompliance.

What is an “action”?

The CDC moratorium order defines “eviction” as “any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.”

A reasonable person could interpret “any action... to cause the removal of a covered person” as prohibiting any act or behavior that would cause the removal of a covered person. This interpretation would make a notice to quit an example of actions that are banned by the CDC order.

After all, in most instances sending a notice to quit is one of the things that ultimately causes a judge in a summary process case to award possession to a plaintiff landlord. And in some cases a notice might frighten a renter into leaving. In either sense, serving a notice to quit could seem to cause the removal.

In my opinion this would not be the correct way to interpret the word “action.”

CDC FAQs

The information on the agency’s frequently asked questions (FAQ) page indicates that the definition of “eviction” does not prohibit landlords from serving notices to quit. In fact, the Order allows landlords to take the next step and commence summary process proceedings.

The FAQ page states that the Order is not intended “to prevent landlords from starting eviction proceedings, provided that the actual eviction of a covered person for non-payment of rent does NOT take place during the period of the Order.”

Because the CDC clearly does not intend to prohibit summary process cases from starting, let alone prohibiting the earlier step of serving the notice to quit — plus the fact that the Housing Court has developed a process for handling cases where the renter is a “covered person” (see below) — there should not be any dispute. But as you know, the fact that an argument is weak or baseless does not necessarily stand in the way of somebody making it.

Landlord Affidavit Consistent with Being Able to Serve Notice

A “covered person” is someone who has given the housing provider a sworn declaration that states five key points about their reasons for non-payment/partial payment (see our previous alert on this subject). The Housing Court wants to ensure that no executions issue against anyone who qualifies as a “covered person.”

When starting a summary process case, the plaintiff housing provider will need to complete an affidavit swearing that the renter has not provided a declaration stating that they are covered by the CDC eviction moratorium. The Housing Court will have these affidavits available online soon.

According to the agency’s FAQ page, the CDC eviction moratorium does not prevent you from serving a notice to quit or commencing summary process. The Housing Court anticipates situations where the plaintiff housing provider files the case but it turns out that the defendant renter is, in fact, a “covered person.” Its new Standing Order 6-20 describes the process for making this determination and what happens with the case from that point onward.

CDC Moratorium Notice to Quit Conclusion

We all need to bear in mind that the FAQ page is merely a guidance document and that Standing Orders are subject to revision. We hope that the Attorney General (whose office will be enforcing the CDC eviction moratorium) and the Housing Court will agree with our interpretation, but we cannot guarantee that they will.

Violations of the CDC eviction moratorium trigger very serious criminal sanctions ($500,000 fines and a year in jail). MassLandlords strongly urges all housing providers to consult with an attorney before issuing a notice to quit and commencing summary process where rent remains overdue. This warning applies regardless of whether or not nonpayment will be enumerated in the claims you would file, as it is the renter’s situation – not your claims – that ultimately determine the applicability of the CDC moratorium.