We previously reported that on April 20, 2020, the Commonwealth of Massachusetts enacted emergency legislation imposing moratoriums on certain evictions and foreclosures of primarily residential properties and some commercial properties due to Governor Baker’s “COVID-19 Emergency Declaration.” The aptly-named Eviction and Mortgage Foreclosure Moratorium Act ( “EMFM Act”) was an emergency law that took effect immediately, providing restrictions on covered eviction and foreclosure activities generally for a period of 120 days, or until 45 days after the COVID-19 Emergency Declaration was lifted, whichever occurred sooner. The EMFM Act’s eviction and foreclosure moratorium provisions were slated to expire on August 18, 2020.
As we previously reported, exercising his emergency powers, Governor Baker extended the key eviction and foreclosure moratorium terms of the EMFM Act by sixty days until midnight on October 17, 2020.
The CDC Order
Since our last report, on September 1, 2020, as part of the public health response to the COVID-19 pandemic, the Centers for Disease Control (“CDC”) and the Department of Health and Human Services (“HHS”) issued a final agency order temporarily prohibiting certain residential evictions across the United States ( “CDC Order”). Under the CDC Order, landlords of residential properties may not evict a “covered person” between September 4, 2020 and December 31, 2020 based on the nonpayment of rent or other housing payment.
The CDC Order defines a “covered person” as a residential tenant who provided the landlord, property owner or other person with a legal right to pursue eviction with a declaration under the penalty of perjury stating, among other things, that:
•The individual has used best efforts to obtain all available government assistance for rent or housing;
•The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
•The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
•The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
•Eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
The CDC Order includes a form declaration that residential tenants may use, but it does not require the form declaration to be used so long as a similar declaration is made under penalty of perjury.
A residential landlord or property owner who violates the CDC Order could be subject to significant criminal penalties. Any person found violating the CDC Order may be subject to: (1) a fine of no more than $100,000 or one year in jail, or both if the violation does not result in a death, then, or (2) a fine of no more than $250,000 or one year in jail, or both, or as otherwise provided by law if the violation results in a death. Additionally, organizations are subject to higher fines of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death.
The CDC Order does not apply in states with eviction moratoriums in place that provide the same or greater level of public-health protection than the requirements listed in the CDC Order, like Massachusetts. However, upon expiration of the EMFM Act, the CDC Order will apply in Massachusetts.
EMFM Act Set to Expire on October 17, 2020
As October 17 approaches, Governor Baker has indicated that he will not exercise his emergency powers to further extend the EMFM Act’s moratoriums. In light of the backlog of previously filed summary process actions and the anticipated onslaught of new cases, the Massachusetts judiciary has issued a series of standing orders outlining procedures applicable in the trial court departments for summary process (eviction) cases. Per the Trial Court, the standing orders are “an effort to accommodate the significant influx of summary process cases that will proceed in the Trial Court following the expiration of the moratorium, and to provide opportunities for landlords and tenants to access resources.”
Notably, the standing orders alter the time standards contained in Trial Court Rule I: Uniform Summary Process Rules. Now, the plaintiff must list the trial date as “To be Determined by the Court” instead of a date certain. New summary process eviction actions will proceed with an initial case management conference scheduled by the court, to determine whether the parties can resolve the action absent a trial. For pending actions, the court shall schedule a conference to discuss case status, possible resolution, applicability of the CDC Order, and available resources. If necessary, the court shall set a schedule for the eviction action through trial.
In actions for non-payment of rent, the plaintiff shall file a court approved affidavit indicating whether the plaintiff has received a declaration from the tenant under the CDC Order. For newly-filed eviction actions, the affidavit must be filed with the summons and complaint. In pending summary process actions, the plaintiff shall file the affidavit on or before the date of the first court event. In all such cases, the plaintiff shall file a subsequent affidavit prior to the entry of judgment, and with any request for the issuance of an execution.
We will continue to monitor and report new developments arising out of the COVID-19 pandemic and related governmental orders.