While the recently enacted federal CARES ACT put into effect certain protections regarding housing, Governor Baker signed a bill that bars evictions and foreclosures against residential tenants or owners from moving forward in Massachusetts for 120 days after the effective date of the act or 45 days after COVID-19 emergency declaration has been lifted, whichever is earlier, with certain other provisions. This act also covers commercial leases with many small businesses.
What this means for landlords is the “non-essential evictions” are prohibited from moving forward during this period. Non-essential evictions include evictions for non-payment of rent, those resulting from foreclosure, those for no fault or no cause or those for cause but do not involve allegations of certain criminal activity impacting health and safety or lease violations that may also impact health or safety of residents or others. Non-essential evictions for small businesses does not include a proceeding for an expiration of a term of a lease or a default by the small business tenant that occurred before the declaration of COVID-19 emergency.
What this also means for landlords is that a landlord cannot terminate a tenancy or even begin the process by sending a notice to quit or any notice demanding that a tenant vacate the premises. Any action that has already been filed in court for eviction will be stayed as there will be no court events and no eviction trials. Further, during this time, there will be no judgments entered or executions issued. If an action has already been filed by a landlord, any dates for response by a tenant will be tolled or also stayed. No new filings will be accepted during this time for non-essential evictions.
This does not mean that this act relieves a tenant from his/her/their obligation to pay rent or prevent a landlord’s right from seeking unpaid rent once the moratorium is lifted. Tenants will still owe the rent and should make arrangements with the landlord for repaying the rent owed while keeping their rental obligations current after the moratorium is lifted. Apparently, a landlord may use the last months’ rent paid in advance to make the landlord’s mortgage payments, utilities, repairs and upkeep and there are provisions on how that is done and credited. Landlord’s should be consulting with legal counsel with respect to all the new temporary rules.
Tenants may also need to seek to retain legal representation to prevent improper non-essential evictions from being begun during this moratorium.
With respect to mortgage foreclosures, there is a forebearance (or prohibition for not moving forward) for not more than 180 days. It appears that a mortgage borrower must provide a written certification from a credit counselor with a third-party organization that the mortgage borrower has received some financial counseling through a video or telephone conference. It further appears that fees, penalties or interest beyond the amounts scheduled had the mortgage borrower made all his/her/their regular payments do not accrue during this period but are added to end of the term of the mortgage loan. However, it should be noted that the act does not relieve any mortgage borrower from paying his/her/their mortgage obligations including any added fees, penalties or interest.
Navigating the courts with respect to these matters will be challenging for both tenants and landlords as well as mortgage borrowers and lenders. These parties will not want to jeopardize their rights with further unnecessary delays once this emergency legislation is lifted. Eviction matters are technical in nature and an improper notice or court filing can further result in an eviction case being dismissed or lost forcing the landlord to have to start the process all over again.. An experienced attorney should be retained to properly pursue such an action in court.
Likewise, if a client can still not afford to pay the mortgage and keep a property and it is foreclosed upon, hiring an experienced attorney is the wise move to defend an eviction action after foreclosure and/or file a bankruptcy proceeding to stay proceedings and/or discharge any debt incurred because of the mortgage foreclosure.
With all the catastrophic financial and job losses, it is expected that bankruptcy filings may increase and if you find yourself in this position, you should have an experienced bankruptcy attorney file a proper bankruptcy proceeding so that you can obtain a discharge of your debts and a “fresh start” following this pandemic.
Attorney Deborah L. Gold-Alexander is available to be retained in such matters and can be reached at 781-289-4235 or by email to firstname.lastname@example.org