State legislators have banned evictions for nearly any cause, save criminal activity or dangers to human safety, for the duration of the public health emergency.
Since Gov. Charlie Baker declared the COVID-19 emergency on March 10, recent legislation and court orders have effectively suspended eviction actions in Massachusetts.
House Bill 4647, which became law on April 20, established a moratorium on most evictions of residential and small business tenants. The moratorium is scheduled to expire on August 18, 2020, or 45 days after the COVID-19 emergency is lifted, whichever occurs first. The governor can extend the moratorium in 90-day increments, but not beyond 45 days after the COVID-19 emergency is lifted.
The moratorium prohibits “non-essential evictions” of residential tenants and commercial tenants occupying “small business premises units.” The statute broadly defines “non-essential evictions” as evictions for pretty much any reason that does not involve criminal activity or dangers to health and human safety. “Small business premises units” are defined as leased premises occupied by commercial tenants who do not operate multi-state or multi-nationally, are not publicly traded, and have less than 150 full-time employees.
The moratorium does not prevent evictions of commercial tenants that do not lease “small business premises units.” Also, “non-essential evictions” do not include evictions of small businesses because of lease expirations or tenant defaults that occurred before the March 10 emergency declaration. Landlords can still evict small business tenants for those reasons. Despite the moratorium, landlords can sue protected tenants for unpaid rent without seeking to evict them.
What Can and Can’t Be Done
While the moratorium is in effect, landlords cannot terminate residential tenancies or send residential tenants notices to quit or request that they vacate their homes, as part of a non-essential eviction. This restriction does not apply to commercial tenancies, including tenancies of small business premises units. Courts having jurisdiction over non-essential evictions during the moratorium, including evictions of small business tenants, may not accept complaints initiating evictions, enter eviction judgments against tenants, issue executions for possession, deny tenant requests for stays of execution or continuances or schedule hearings or trials.
Relevant time periods for non-essential evictions do not begin to run until the moratorium expires. Sheriffs, deputy sheriffs and constables may not physically remove protected tenants during the moratorium. Landlords cannot collect late fees from protected tenants or report them to consumer reporting agencies, if within 30 days after the rent due date, the tenant provides the landlord with notice and documentation that the non-payment of rent was due to a financial impact from COVID-19.
The moratorium statute does not discuss tenant security deposits, so landlords presumably have the same rights to setoff security deposits as before the moratorium. The statute allows landlords to use last month’s rent payments from protected tenants only to pay for debt service, utilities, repairs and required upkeep, but not to pay rent in advance. Landlords must provide a specific notification to tenants when using last month’s rent for such permitted expenses.
The Massachusetts Executive Office of Housing and Economic Development issued emergency regulations and recommended forms related to the moratorium. EOHED’s straightforward regulations and forms are codified at 400 CMR Section 5.00. Landlords should familiarize themselves with these regulations and forms before demanding delinquent rent or using last month’s rent for permitted expenses.
Extensions Challenge Rent Collection
As a separate matter, the Supreme Judicial Court has issued COVID-19 emergency orders that toll all relevant deadlines falling between March 16 and June 1. The SJC’s orders apply generally to all lawsuits, including collection and eviction actions against commercial and residential tenants.
Christopher Vaccaro
New court deadlines are calculated by determining how many days remained after March 16 until the original deadline, and adding that number of days after June 1. For example, if there is a 10-day deadline and five days remained after March 16 before the deadline, then those five days will remain on June 1, so the new deadline is June 8 (because June 6 is a Saturday). If the 10-day period commenced after March 16, then 10 days remain as of June 1, so the new deadline is June 11. The tolling gives defendant tenants additional time to answer lawsuits commenced before June 1.
The governor and the courts may extend the eviction moratorium and court deadlines further, if the COVID-19 emergency continues. As the pandemic ravages Massachusetts, such extensions become more likely, and landlords can expect difficulties collecting delinquent rent. Adversely affected landlords should request accommodations from their mortgage lenders.
Christopher R. Vaccaro, Esq. is a partner at Dalton & Finegold, L.L.P. in Andover. His email address is cvaccaro@dfllp.com.
