THE NEW DOMESTIC VIOLENCE BILL ANALYZED

Last month the MA Governor signed into law the final version of the Domestic Violence Bill. Even though the new is still bad news for the Massachusetts Landlords, it is not as bad as it could have been if MassachusettsLandlords.com and other landlord groups hadn’t fought for changes. Here is what I had to say at the time. I am still not happy with the current law because it basically transfers to us the responsibilities belonging to social workers and law enforcement officials and legalizes taking money from us for the wrongful actions of the domestic violence perpetrator, a party completely  unrelated to us.

 

OK, let’s get to the meat of the law.

When can a tenant break the lease?

A tenant may break a lease and leave immediately after a written notification to the landlord that they have been a victim of domestic violence, rape, sexual assault or stalking. This written notification must be made within 3 months of the most recent incident. The tenant can also give notification to the landlord if such incident has not occurred yet but the tenant is reasonably in fear of imminent serious physical harm. (My comment: so how exactly are we going to determine if the tenant is reasonably in fear of imminent serious physical harm? Are we supposed to evaluate the credibility of witnesses and play judges or what?)

The law allows the landlord to request a letter or another document from a “qualified party” proving that the tenant in question was a victim of domestic violence, rape, sexual assault or stalking including the name of the perpetrator, if known.

 

Who is a “qualified party”? Who can write a letter or produce a document saying that the tenant is a victim of domestic violence, etc?

– a police officer (My comment: I assume they mean a police report but it doesn’t really establish that what is described there is true. If we accept a police report and lock out a tenant based on it are we not violating his due process rights of him being considered innocent until proven guilty?)

– a district attorney or assistant district attorney

– a victim-witness advocate

– a probation or parole officer

– an employee of the Victim Services Unit of the Department of Criminal Justice Information Services

– an application assistant in the Address Confidentiality Program of the Secretary of the Commonwealth under MGL 9A, sec2

– a licensed medical care provider

– an employee of the Department of Children and Families

– an employee of the Department of Transitional Assistance charged with providing a direct service to clients

– an active licensed social worker

– a licensed mental health professional

– a sexual assault counselor as defined in MGL 233, sec 20J

– a domestic violence victims’ counselor as defined in MGL 233, sec 20K

 

What is considered proof that the tenant was a victim of domestic violence, rape, sexual assault or stalking?

– a copy of a valid protection order under MGL 209A or 258E

– a record from a federal, state or local court or law enforcement

– a written verification from a “qualified party”(see above for definition) which must contain the name of the qualified party, the date of the incident, the name of the perpetrator, if known, and a written statement by the tenant who has the capacity to do so, sworn under the penalty of perjury, that the incident described is true and correct.

 

Confidentiality Requirement

A landlord who receives such written proof must keep it confidential from any other person or agency unless the victim allows in writing the release of this information or unless required by court order, government regulation or government audit requirements.

 

When must the victim leave?

The tenant must leave our building within 3 months of notifying us. Otherwise their notice becomes void. (My Comment: so they have 3 months to give us the notice and 3 more months to leave)

 

If a tenant breaks the lease do they owe us any money?

Yes, if they have a lease they owe us the security deposit for the 1 month after they leave but that’s all. What the law changes is that we can no longer expect them to pay us until the end of the lease or until we find another tenant. Here is the actual quote from the new law: “A tenant or co-tenant to whom this section applies shall be discharged from liability for rent or use and occupancy for 30 days or 1 full rental period after the quitting date, whichever last occurs, to the extent that a rental agreement and applicable law may otherwise impose such liability beyond the quitting date. Such tenant or co-tenant shall be entitled to a refund of any prepaid rent for any period thereafter.”

In other words, they are liable for the 30 days after the quitting date but they need to be refunded any prepaid rent beyond that.

If there are other damages to the apartment then the landlord can still chase them for that but they need to give the tenant full accounting in a letter within 30 days of the conclusion of the tenancy following the rules of MGL 186, 15B.

 

What is the definition of the Quitting Date?

If the tenant has left already, then it is not the date on which they actually left but rather it is the date notice was given to the landlord. (My comment: What?)

If the tenant is still there, then it is the day the tenant intends to vacate on OR it is the actual date the tenant left… (My Comment: So let me get this straight – If the tenant is still in the apartment the quitting date is the date that the tenant left the apartment? Sadly, I am not kidding – that is exactly what it says in the law, New Domestic Violence Law – old Bill S2402)

 

Are the other occupants of the apartment released from the lease?

If this tenant leaves but there are co-tenants or other occupants then they are not released from their obligations under the lease (My comment: well, then it makes more sense for us to have as many tenants named at the top of our leases as possible. I name all adults as tenants. That way if one of them leaves due to Domestic Violence the others are still responsible for the rent and lease.)

 

What happens to the tenant’s possessions?

If the tenant who has been a Victim leaves belongings behind them, then those belongings are to be considered abandoned and may be thrown away by the landlord unless the tenant indicated in writing otherwise.

 

When is the landlord liable?

A landlord who in good faith initiates an action against a remaining occupant, is not subject to a claim of retaliation or any other claim.

A landlord cannot refuse to rent to someone who previously broke a lease because they were a victim of domestic violence, etc or because they requested the locks to be changed.

 

Changing of the locks

Speaking about changing of locks, the landlord is required to change the locks upon the request of the tenant (note that it does not have to be in writing) that the locks be changed because the tenant believes that they are under imminent threat of domestic violence, rape, sexual assault, or stalking. That being said the landlord has the right to request, in good faith, proof (which is in writing) of the status as a victim of domestic violence, etc including the name of the perpetrator, if known.

If the threat is posed by another occupant, the landlord may change the locks and deny the key to the alleged perpetrator as long as the request is accompanied by a copy of a valid protective order under ch.209A or 258E OR a record from a federal, state or local court or law enforcement indicating that an occupant poses an imminent threat.

The landlord who has received such a request must, within 2 business days, make a good faith record to change the locks and give the new keys to the Victim. The landlord can charge whoever requested the lock change a reasonable fee for the change of locks.

If the landlord fails to change the locks within 2 business days, then the tenant can change them on their own and make a good faith effort to provide the landlord with the new keys within 2 business days. If the tenant changes the locks then they must be replaced in a workmanlike manner with locks of the same or better quality. The landlord may later replace the locks or seek extra money if they believe that the locks were not of equal or better quality or were not installed properly. Such action by the landlord would not be considered retaliatory.

If the locks are changed, the Victim is not allowed to give the new key to the alleged Perpetrator.

A landlord who refuses to provide the new key to any person based on the reasonable belief that such person was the perpetrator, shall not be liable for such refusal.

 

Expansion of the definition of Retaliation in MA landlord-tenant law

A landlord who fails to make a good faith effort to provide the new key to the Victim or tries to prevent the tenant from changing the locks shall be considered to have engaged in RETALIATION and shall be liable for actual and consequential damages or 3 months’ rent, whichever is greater PLUS the attorney fees of the tenant. However, damages shall not be imposed if the court decides that the landlord acted in good faith.

Any language in a lease contrary to this new law will be considered void and unenforceable.

A landlord complying in good faith with this new law shall be relieved of any liability to anyone for anything including the fact that keys were withheld from the perpetrator. Damages shall not be imposed if the court determines that the matter was of a good faith dispute between the owner and tenants.

This law makes it RETALIATION to try to evict a tenant or materially alter the lease within 6 months of the tenant seeking relief under this new law or reporting to any police officer or law enforcement official an incident of domestic violence, rape, sexual assault or stalking or a violation of a restraining order or any act of abuse under ch.209A or harassment under chapter 258E.

 

Ok, so let me give you my analysis of this new law. What does it mean for landlords?

If a tenant wants to break the lease because they claim they are a victim of Domestic Violence, then they must provide the proper documentation as defined in this new law. We are not required to believe the tenant without further proof that it is a valid request. THAT’S GOOD

The 2 sentences that define when a tenant who quits owe us money and the definition of “quitting date” are poorly written and poorly defined. THAT’S BAD

The other occupants of the apartment are still bound by the lease. THAT’S GOOD

We don’t have to change the locks based just on the word of the tenant. We are allowed to ask for the proof from another qualified party in writing. THAT’S GOOD. However not changing the locks or telling the tenant that they cannot change the locks in order to  lock out other tenants is considered RETALIATION now and THAT’S VERY BAD.

So we are stuck in a Catch 22 again in MA, damned if we do and damned if we don’t. If we tell the tenant they can’t change the locks until they provide proof satisfactory to us we can be accused that we are stalling and not operating in good faith which is RETALIATION according to this new law. If we allow them to change the locks, the person who was locked out can sue us for breach of his QUIET ENJOYMENT RIGHTS because he was only an alleged perpetrator not a convicted one and we acted prematurely locking him out because he was innocent until proven guilty, right?

Dear legislators, why did you have to involve the landlords of Massachusetts in this social mess – the Domestic Violence in MA?

 

So here is my final judgment about this new law:

Granted, it could have been worse because in the initial proposed bill some Legislators wanted to use this law to expand not only Retaliation in MA but also to expand the definition of Discrimination. But no matter what, it was the wrong thing then and it is still the wrong thing to push down our throats this new bill and turn it into a real law.

It is wrong to mix us up into the inner fightings of our tenants. Domestic Violence is a terrible social problem but we are not law enforcement or court officials. Dealing with Domestic Violence is the job of the State not of private businesses and this statement does not come from a Republican so it should matter more.

This new law forces us to financially pay for the wrongdoings of a third party, totally unrelated to us. If someone assaults one of our tenants, there are two victims here – the person who was assaulted but we are also a financial victim because the tenant who was assaulted has to leave now and we have to look towards the apartment being vacant, have to spend money again to advertise, clean, etc. Now this law prohibits us from trying to recover that extra cost so the perpetrator in effect has victimized us as well. We did not need to be forcefully involved in this conflict by law. If someone was victimized they should go criminally and financially against the person who victimized them. Now we have to share part of their cost and pay also even though we never injured them in any way. Punishing the innocent is, I guess, the law making style of MA.

This law reminds me of the Lead Paint Law when it comes to this disturbing law making style. In the case of the Lead Paint it was the lead paint manufacturers and the State that allowed them to sell the lead paint that should carry the responsibility and the cost of covering or removing it. Landlords had nothing to do with the Lead Paint. It was legal at the time so they bought it and they painted with it. However later landlords were forced by law to pay for the removal of the lead paint and the State gave them a $1,500 per unit tax credit which doesn’t even come close to the real cost of deleading. Last year I had to come up with $30,000 to side a building that had lead paint and replace its windows. I am going to get only $9,000 back. In other words, I had to spend $21,000 to pay for the mistakes of someone else.

 

One last thing – Can we keep the security deposit after a Victim of Domestic Violence leaves? An Email Exchange with the Legislature. Clarification by the MA Legislature about their intent.

 

Because the law is not very clear I asked over email my State Senator, Sen. Flanagan, the following questions: “I am trying to understand 2 sentences of the new Domestic Violence law. What does this mean? Can we keep the security deposit of a tenant who breaks a lease because they are a victim of domestic abuse? Do you know who wrote this? Maybe they have an insight as to what they meant?

 

“A tenant or co-tenant to whom this section applies shall be discharged from liability for rent or use and occupancy for 30 days or 1 full rental period after the quitting date, whichever last occurs, to the extent that a rental agreement and applicable law may otherwise impose such liability beyond the quitting date. Such tenant or co-tenant shall be entitled to a refund of any prepaid rent for any period thereafter.”

I read that to mean they are liable for the 30 days after the quitting date but they need to be refunded any prepaid rent beyond that.”

 

Sen. Flanagan responded to my email:

“I sent your question to someone who helped draft the bill.  Here is the response:

The tenant would owe one month after the quitting date but then get back their security deposit in accordance with the Mass. Security deposit law. The landlord is required to follow the security deposit law but cannot claim additional rent owed beyond the full rental period unless the vacating survivor exercising rights under this law did not pay the full rental period after the quitting date. This makes no changes to the security deposit law.”

 

To which I responded:

“Sen. Flanagan,

thank you for this.

Can you also forward this follow-up to the same person?

This new law allows the tenant 3 months from the incident to give us notice and then up to 3 months from that notice to actually leave. Quitting Date is defined as the day they give us the notice. If we can use the Security Deposit to cover 1 month after the quitting date who is going to pay us if they stay two more months?

There is something wrong with the definition of Quitting Date. It also says that if the tenant is still in the apartment then the quitting date is either the date they intend to leave OR the date they actually left. How could they have left when they are still in the apartment?”

 

Here is the response from the Legislature:

“Please note: this is not official legal advice; please contact an attorney for specific cases with individual tenants

Response:

For reference: “Quitting date”, the date that a tenant or co-tenant surrenders such person’s interest in the premises; provided further that such date shall be determined as: (i) if the tenant or co-tenant has vacated the premises, the date notice is given to the owner of the intent to abandon the premises and not to return; or (ii) if the tenant or co-tenant has not vacated the premises, either (A) the date the tenant or co-tenant intends to vacate the premises or (B) the actual date that the tenant or co-tenant has vacated after providing such notice.

Question Part 1 “This new law allows the tenant 3 months from the incident to give us notice and then up to 3 months from that notice to actually leave. Quitting Date is defined as the day they give us the notice. If we can use the Security Deposit to cover 1 month after the quitting date who is going to pay us if they stay two more months?”

It seems this interpretation that the “quitting date is defined as the day they give us the notice” is not an accurate interpretation of the “quitting date.” It might be the date they actually give notice, if they have already left. But under other parts of the definition, it could the date the tenant intends to vacate, not the actual date on which that communication has happened. 

As for the follow up to that…”who is going to pay if they stay 2 more months”…seems to conflate some things. If a person gives a quit date of April 1, then they are gone April 1. If they tell you on April 1 that they are going to quit May 1, they are paying for April b/c they are living there and are liable for another 30 days. Or put another way: The intent is that the person vacating, pays one full month’s rent after he/she leaves. Example, person gives notice of intent to vacate on/or before February 28th. The person vacates on February 28th. The person is responsible for March rent even though no longer occupying the unit. This is not unlike a tenancy at will agreement (month to month) where the tenant is required to provide a minimum of 30 days notice the he/she will vacate. It is not that you can give a quit date and get to stay there 3 (or 2) more months rent free.

Question Part 2: “There is something wrong with the definition of Quitting Date. It also says that if the tenant is still in the apartment then the quitting date is either the date they intend to leave OR the date they actually left. How could they have left when they are still in the apartment?”

I think this part of the question is trying to get to a distinction between the different possible definitions of “quitting date”.

(i) in this scenario, the tenant has already left the premises, but had not yet provided notice. The quitting date, since they already left, would be the date they tell the landlord that they have left and don’t intent to return.

(ii) (A) in this scenario, the tenant intends to vacate and gives the landlord a date that this will happen.

(ii) (B) in this scenario, the tenant provided a notice of leaving on a certain date and the quitting date is the date they leave. This may cover a scenario in which a person give a quit date but then stays later than that, the quit date would be the actual date of leaving.

If the quit date ends up changing, this could impact the rent liability…still could be liable for 30 days. Any time actually living in the location would be considered time that they have to pay rent. There is no intent for people to be living rent free as a result of this law.”

Here is the actual language of the new law again.

New Domestic Violence Law – old Bill S2402