2023 Ferreira v. Charland (landlords can no longer dare evict anyone for no-fault – all it takes is a tenant just to show that the landlord violated some law, any law, no need to prove they were owed any money)

I am not a fan of housing court judge Robert Fields. My opinion of him is that he is one of the most anti-landlord judges in the state but apparently he is not anti-landlord enough for most judges in the Appeals Court who appear to be ready to do whatever the Tenant Advocates and the Attorney General ask them to do. Judge Fields decided this case for the landlord and he was correct to do so.

Granted, MGL 239, 8A is a mess to begin with and it is shameful that such an atrocity could be written by someone calling himself a lawyer but Appeals Court decisions over the years have made this mess of a law into a bigger mess. In their partial defense – garbage in, garbage out, right?

I don’t know why but this case was heard by what seems like ALL Appeals Court justices in MA – I counted 22. The majority decision overrules Judge Fields but there are three separate dissents supported by 9 justices!!!!!!!!!

MGL 239, sec 8A currently seems to be saying the following (who knows what it really says, it’s so poorly written and convoluted that apparently the whole Appellate Court of MA was needed in order to interpret it) – if you try to evict a tenant for no-fault or non-payment they can bring against you habitational counterclaims like Breach of Warranty of Habitability and Breach of Quiet Enjoyment and the 93A claims that stem from them. Also they are allowed to bring counterclaims for the violation of “any other law” as they did in this case.

(As a side note they are NOT allowed to bring habitational and other counterclaims when the eviction is  “for-cause.)

So 239, 8A says that you take the tenant to court and

  1. If, after evaluating the counterclaims and defenses, the judge rules that the tenant owes you $2 and you owe her $1, the tenant has one week to pay the difference or she is out.
  2. If you owe the tenant $2 and she owes you $1 or if you owe the tenant $1 and she owes you $1 then she gets to stay in your apartment until you file again to get her out. You can file right away and presumably you’ll owe her nothing the 2nd time because you just made her “whole” the 1st time and she’ll owe you nothing which means you win possession of your apartment and she is out.

Ok, but what happens if you, being a good guy, decide to fix whatever she is complaining about and pay her and make her “whole” after you file your case but before you reach a judge (a little note here – you can’t fix whatever she is complaining about or make her “whole” before you file because she had no complaints before you filed)?

What the lawyer of the tenant in this case was saying is that no good deed goes unpunished and so if you try to settle before trial and pay her whatever you owe her she STILL wins and gets to stay in your apartment as punishment for you owing her anything in the first place! Amazingly, the Appeals Court fell for that and agreed with him which means you have to file A SECOND TIME in order to get your apartment back in cases where the tenant has already been made “whole” before reaching a judge and no one owes anyone any money. Isn’t that what they have always told us – don’t create extra work for the already overloaded judge, mediate and settle beforehand? Apparently all that goes out of the window. 

In this case the lawyer of the landlord sent a check to the attorney of the tenant with everything that was owed and in fact much more than it was owed the tenant but the tenant attorney refused to accept it because he wanted to go in front of the judge with an outstanding balance owed his client so that he could win possession of the house for her (even though that would have bought her only another 3-4 months until the landlord wins his second case). The interesting thing here is that he argued in front of the Appeals court that EVEN IF HE (and by that I mean his client) HAD ACCEPTED THE MONEY, the tenant still gets to win the case and stay in the apartment. (By the way it’s worth mentioning here the checks were sent to him by the attorney of the landlord about two months prior to the hearing and he did not tell the attorney of the landlord prior to the hearing that he is not going to accept the money and instead he tried to ambush him in front of the judge, what a slimy thing to do, right?)

I listened to the oral arguments and questions and many of the Justices on the Appeals Court were puzzled by that absurdity – nobody owes anybody money and the tenant still gets to stay in the apartment? and even though the landlord paid the tenant everything that could have possibly be owed to the tenant? (he returned the security deposit in full plus three times interest plus 3 rents even though he technically probably only owed about $200 – which would be the approximately 10% increase in cost of the water without energy saving devices – if they went to full trial), what are we doing, here, they asked, you are going to force this landlord to file again?, spend on filing fees again, hire sheriffs to deliver and wait 3-5 months to reach a judge again? As one of the justices correctly observed we have the absurd situation where if the tenant wins her case she gets to stay in the apartment for another 2-3 months but if she loses she gets to file an appeal and stay for another year or more.

The lawyer of the tenant answered Yes because in his mind 239, 8A was created to punish the landlord for being caught in some technical violation of any law no matter how trivial and so the consequence of that is that the tenant can be made “whole” financially but the landlord would still be punished by not being allowed to get her property back. My god, I own 45 apartments, I am a professional landlord doing this for over 25 years and I know the laws better than most and even I cannot say that if the book is thrown at me the way they cast this huge wide Discovery net that everything I did will be perfect. In fact I am pretty sure it won’t be no matter how careful, organized and fair I try to be. The way the anti-landlord laws in MA are written against the landlord it’s impossible to follow them perfectly. In this case the crime of the landlord was that she was charging for water when the water saving devices were not installed by a licensed plumber. It was a single family home with one meter. It’s a pretty minor offense no matter how you look at it.

This decision of the Appeals court is simply amazing in its tone-deafness.

A landlord needs to move in into her house. Because of the pandemic she becomes homeless and is sleeping on a couch in her mother’s unheated basement and that’s why she asks the tenant to leave. The tenant refuses and files a bunch of counterclaims and claims they are owed money. The landlord pays the tenant more than what they are technically owed, in fact the landlord pays her 3 times the rent which is the maximum the tenant can win under any theory of habitational injury and the tenant acknowledges that the landlord does not owe her anything more. The landlord also acknowledges that the tenant does not owe her any money.

The housing court judge says, well, if no one owes anybody any money the landlord should be entitled to get her property back and rules in favor of the landlord. That was the correct decision. This is a no-fault eviction.

This single family home is the only property the landlord owns. It’s her house but after living in it for about 3 years she had decided to rent it and go live with her boyfriend if I remember correctly. The relationship fell apart because of Covid and she became homeless. That’s when in Dec 14th, 2020 she filed for a no fault eviction because the tenant had refused to leave. She had asked the tenant prior to that, I believe in July but she was not allowed to file because the MA ridiculous and unconstitutional ban on even filing anything was in full force. She had to wait until December. After it expired she filed. It took many months before the case reached a judge in Housing Court. I can see that the Order for the landlord was issued on 6-25-21.  The landlord had to have an imminent surgical treatment at the end of Aug, 21 which required a slow recovery and she needed her home. She had never been a landlord before (and by the way I agree with one of the justices who observed that after the way she was treated by the law she will never be a landlord again), she had recently lost her business and that combined with the loss of her personal relationship compounded with the way she was treated by the anti-landlord laws in MA and not being able to get back into her home lead to some mental health issues, if I remember correctly, from reading over 450 pages of briefs, orders, decisions, etc.

By the way the tenant is STILL in the property of the landlord and refuses to release it or at least was as of several months ago when the oral hearing happened in front of the Appeals Court!!!!!!!! That’s more than 3 years after she was asked nicely to leave!!!!!!!!

So the Housing Court says Yes and the appeals court says No – a landlord cannot evict the tenant for no-fault if the tenant owes no money to the landlord on a valid counterclaim. What this decision is saying is that in cases where it is determined that no one owes anyone anything then the landlord will be forced to file a no-fault for a second time and wait another 5 months to reach a judge again where the tenant can file counterclaims and defenses again including a claim for Retaliation because the landlord is filing within 6 months!!!!! Nice!!!!!

Excuse me, Dear Appellate Court Majority Opinion, but you are missing the core point of a no-fault eviction, the landlord saying to the tenant: “it’s not your fault, you don’t owe me anything, I don’t owe you anything and if I do owe you here is what I owe you but I need to use my property starting in a couple of months because your lease is expiring or because my husband beats me or because I am homeless or because my daughter is starting college or for whatever reason, it’s my private property and I am not obligated to rent it forever.”

It just goes to show you that some Justices have so nit-picked the law and over complicated it with such extreme pettiness and lack of perspective that the options of evicting for non-payment or no-fault where tenants are allowed to bring up habitational counterclaims are no longer viable!

For many years now I have tried to never attempt to evict for non-payment or no-fault because they come with the possibility of habitational and other counterclaims and defenses being raised. It becomes really muddy really quickly. And who needs that? And especially since all of us landlords are painfully aware and feel it in our gut that in almost all cases those counterclaims and defenses are brought in bad faith as retaliation against the landlord anyway just because the landlord filed in court or said something trying to enforce the Lease. In most cases there were no complaints about poor conditions prior to filing or prior to the landlord asking that the pit-bull be removed or the music lowered. Hmm, interesting. And having no mandatory Rent Escrow is only encouraging that retaliatory behavior against the landlords.

Appeals courts have turned this situation into an impossible minefield for the landlord.

The only remaining option is For Cause evictions and good luck with that.

It’s worth reading this whole case if you can stomach the legalese including the 3 dissenting opinions by 9 Justices!!!!!!!!! They are rightfully pissed.

Like a Russian History textbook the Tenant Advocates in the Majority Opinion are parroting the party line trying to convince us that what we are seeing is NOT what we are seeing and what is happening is NOT really happening. The tenants’ lawyers and the majority opinion parrots the obligatory cynical disclaimer that “239, 8A does not burden the landlord with a tenancy for life” but we can see with our own eyes. That’s exactly the practical result of their actions – that landlords can no longer dare evict anyone for no-fault – all it takes is a tenant just to show that the landlord violated some law, any law, no need to prove they were owed any money.

The Tenant Advocates believe that making evictions more difficult and more costly for the landlord is the way to reduce homelessness and it’s good for the public when in reality exactly the opposite is true – making evictions fast and easy combined with a good social safety net is better for the public. Firing somebody from a job, for example, was intentionally made fast and easy because imagine how much unemployment will increase and salaries will drop if Employment at Will did not exist – if employers had to insure and over-insure that an employee has to be perfect before getting hired because firing is too slow and too expensive, what do you think that will do to the Economy, to the Unemployment and the Salaries. What it will do it is have a negative impact on the Economy, increase Unemployment and lower Wages to compensate for the increased costs of firing someone. So the correct decision was made as a matter of public policy – anyone can be fired for any reason, with no reason at all, at any time as long as it’s not for Discriminatory reasons. And in exchange the employers will pay for Unemployment Insurance Safety Net for the fired individuals. Similarly, evictions need to be fast and easy and in exchange the owners of multi-family buildings will be made to contribute to an Eviction Insurance Safety Net.

Instead, in MA with every year they are making evictions harder now effectively forcing the landlords to file twice in no-fault and possibly no-payment evictions because the 1st time in all cases where there are (free) lawyers involved there will be automatic and multiple counterclaims and defenses and the tenant will win possession by default and after “resolving” those claims and defenses the landlords will be forced to file again. Anything to make it incrementally harder and slower, right? During the hearings it was mentioned that unfortunately there is only one licensed Mover in Western MA and that adds another month to evictions. I have written on this topic before – after the public warehousing law was butchered the number of eviction movers has been steadily going down in MA. By the way the AG admits this in their “Friend of the Court” filing  – that all of this is intentional and they are doing it so that those extra several months where the landlords are forced to file again would be helpful to the tenants to find new housing.

That’s right, all of this is intentional. I bet this young ambitious lawyer and the other tenant advocates like him have been waiting to get a case like that to make a name and to push this misguided agenda to ban and cancel evictions. Well, they literally managed to cancel all evictions for 6 months during Covid and what did they accomplish – a tsunami of filings after filings were allowed again which slowed things down by at least several months each time we are forced to go to court now. And they assured us that these Covid restrictions were temporary. Well, Covid epidemic is gone but they just made them permanent because Gov. Healy just revived the Covid law where you can’t evict anyone for non-payment unless they are denied help by RAFT. What they don’t tell you is you have to wait for many months before you get a decision by RAFT and even in the best case scenario RAFT can cover only $7,000 which in many cases is only several months of unpaid rent and it might never get approved or denied because your application can be lost as they have lost thousands. And, by way, the Tenants Advocates have also created laws about tenants being judgment-proof so you are screwed if you win and screwed if you lose.

I want to finish by asking – Where are the landlord groups and associations to defend us and fight for us?

The tenants had at lot of Friend of the Court briefs fighting for them and arguing their points while the landlords had none. Where are the landlord associations in MA? This is a terrible malpractice as far as I am concerned. Groups like MassLandlords and SPOA must immediately subscribe to updates as to Friend of the Court requests and stop paying salaries to themselves but instead hire lawyers to fight back for each case related to landlords. Also these groups must challenge in court Gov. Healey’s recent law (Chapter 257 of the Acts of 2020) which puts an indefinite hold on any non-payment eviction where the tenant has applied for rental assistance (RAFT) until such time as the application is approved or denied. And last but not least they must immediately challenge in court the constitutionality of the recently certified by the AG ballot question on returning rent control. These Landlord Associations are supposed to fight for us and protect us. Replace leadership if you have to with people who believe in fighting back not just turning the other cheek lest people think badly of us. We are way beyond that.

Also this is a call to the Legislature to finally re-write MGL 239, 8A.

  1. The word “equal” needs to be removed from sec 8A or if it remains it needs to be clear that the landlord wins if monetary balance is equal because otherwise landlords have to file again and the housing court load doubles.

 

  1. If a tenant has not raised with the landlord the specific habitational issues prior to the landlord filing with the court then they cannot raise them in court. Period. Allowing the tenant to bring habitational counterclaims and defenses in court for the first time amounts to allowing the tenant to engage in retaliation against the landlord.

 

  1. Tenants, if they choose to “withhold” rent, must escrow that portion of the rent which could be reasonably withheld if it reached a judge and they need to escrow it with the Court clerk or with their attorney until the judge determines who owes what to whom and that includes appeals. They will get their due process by the judge. If there was no escrow of the so called “withheld rent” then there would be no habitational counterclaims or defenses. Period.

 

  1. The Legislature must properly fund our courts. The Constitution says we are entitled to speedy trials. There is nothing speedy about waiting half a year to get a decision from a Housing Court judge and another year or more for the Appeals Court to review it. We should have resolutions within a couple of weeks both at Housing Court level and Appeals Court level. 

We’ve been asking the Legislature for these common sense fixes for more than a quarter century now. By making it harder on the landlords, they are making it harder on the tenants. 

To read more about this case and the findings you can go to https://www.ma-appellatecourts.org/docket and type 22-P-0300 as the Docket. All the filings and audio hearings are listed there. The video of the oral arguments is listed here – https://www.youtube.com/live/3HqMPg2Hvc0?feature=shared and here is the actual Appeals Court Decision on this case – Ferreira vs Charland.

 

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