2021-10-10, by Elmir Simov, MassachusettsLandlords.com
The past several months have certainly been eventful – The CDC was warned by the US Supreme Court not to extend the Eviction Moratorium. They did anyway. The Supremes promptly ruled it unconstitutional. That didn’t stop the acting Boston Mayor in the middle of a mayoral election to “extend” the Moratorium in Boston. Now it looks like she will lose her job in several weeks.
When these Eviction Moratoriums started they were unfunded. Several landlords took the issue to court rightly saying that unfunded Moratoriums are unconstitutional. The state cannot require we house tenants without a compensation or to pretend that if they stopped paying for 6 months somehow they will repay us later. It’s not rocket science. Sadly the two judges in MA who looked at it failed the test of time and showed no courage to state the obvious. Instead, they used a “standard” that allows the State to always win when used. However, by the end of 2020 and beginning of 2021 America as a whole came to the collective understanding that if there will be Eviction Moratoriums they need to be funded. On 12-27-20 the Federal Government allocated $25 billion dollars for landlords to get paid and on 3-11-21 it allocated another $21.55 billion. Sadly, only about 11-12% (that’s about $5.5 billion out of $46.5 billion) have been distributed so far. As of today it might be 20%. The reason for that, I am told, is because this is a first in the history of the USA and the infrastructure and rules to distribute these funds had to be created from scratch. The error that was made and still being made is that the forms that both landlords and tenants must fill are very long and cumbersome. They are over 25 pages…each. It should be a one self-attested page. That’s it. Basically the landlord under pains and penalties of perjury saying they were not paid the rent. And another thing is that tenants agreeing to the landlord getting paid and submitting paperwork should be recommended but not mandatory. Some tenants don’t pay not because they don’t have the money but because they don’t want the landlord to get the money! Basically if a tenant cannot prove that the landlord was paid, then the landlord should get paid from the $45.5 billion fund…quickly. Sadly, 12% payouts (or even 20%) is still very close to the Moratoriums de facto being Unfunded for 88% of landlords.
Another thing that bothers me a great deal is that these Eviction Moratoriums broke the Housing Court in MA. Because for 6 months in 2020 landlords were unconstitutionally prohibited to even serve and file the eviction paperwork, when the Moratoriums ended, suddenly there was a tsunami of filings which overwhelmed the courts. That was something that could and should have been predicted by those who created and signed the law and are pushing more laws like that. But, no, they even wanted to extend the time of not being able to file arguing in court that if they let landlords file again this will create a tsunami of filings when in reality the tsunami was created PRECISELY BECAUSE landlords were artificially prevented from filing in the first place and extending that would have created an even bigger tsunami of filings and bottlenecks in Courts. What happens if you place an obstacle in front of a river? Does the river stop flowing? Duh. But they were in a panic mode and didn’t think about the side effects of their actions. So now it takes 5 months to reach a judge in Housing Court.
How do I know this?
I currently have a case where one of my tenants is refusing to provide MassSave with her National Grid account number which prevents MassSave from scheduling an Energy Assessment and insulating my property. Western Housing Court told me the only thing I could do is file for an eviction. After serving her the paperwork, waiting for the time in the notice to pass and then filing in Western Housing Court I had to wait 3 months just to be scheduled !!!! Then another month to see a Mediator and another month to see a judge, then the judge automatically postponed it for another month because he wanted to see the lease as if though, I, Elmir Simov, a very well known entity in Western Housing Court, would lie about what a clause says in the Lease. We had 1 hour allocated for the trial, plenty of time for me to email the Lease and those two-three clauses to be looked at, but instead, the Hearing was postponed with a month. So from the time of filing the Notice to Quit you have to wait a minimum of 5 months to reach a judge!!!!!!!! Finally the day of the Hearing came. It was scheduled for 3pm but both the tenant and I had to wait in a virtual room together 55 min to see the judge (and during that wait the Clerk or whoever was on the Zoom call suggested that the Hearing might not happen today and we should postpone again). When finally the judge made an appearance the Hearing lasted 19 minutes. It’s a simple case about providing required by MassSave information and access to the landlord in order for repairs and improvements to be done to his property. Frankly, no lease even needed as providing access to the landlord upon reasonable notice and cooperating with the landlord to make repairs and improvements are well-known and not controversial parts of landlord tenant MA law.
It’s been over a month since this case was taken “under advisement” by judge Robert Fields. As I am publishing this I am STILL waiting for a Decision. I called Housing Court on 10-5-21 and they told me the decision can take several months to issue. This is either intentional to settle old scores or unintentional due to incompetence or lack of organizational skills or just being overwhelmed. Either way, it’s not good. Keep in mind this complicated case of international mystery has no lawyers involved, no discovery, no defenses, no counterclaims and no exhibits except the Lease and the Notice. I started talking with the tenant about access and providing her National Grid account number to MassSave in February, for several months I tried to convince her over texts not to get to Housing Court, I finally served her the Notice mid-April, it’s now almost mid – October. That’s about 6 months since I served the Notice!!! I told the judge I need to insulate my property before this winter.
There was a lot of talk by Tenant Advocates of how we don’t need Mandatory Rent Escrow because evictions in MA move fast. Really?
That’s not how our Housing Courts should work. You don’t want us to take the law in our hands and at the same time we can’t reach a judge in a reasonable timeframe. This case is only about providing information and access where I don’t really want to evict the tenant and told that to the judge. I was even willing at trial to temporarily put her electricity in my name so I can give my account number to MassSave and preserve her tenancy. But can you imagine if the tenant was doing drugs or parties or something else offensive, being a nuisance or disturbing the other tenants, the landlord or the neighborhood? Five months to just talk to a judge and then another month or two to get a decision? That’s a problem. Maybe they need more judges, more clerks, more mediators, better processing methods, etc, I don’t know, but something’s got to give. I predict more landlords will become desperate and will attempt to take the law into their own hands. Either that or they will go bankrupt or stop renting to anyone with a credit score less than 700. Who can blame them?
With the availability of Zoom reaching a judge in Housing Court should NOT take more than 1-2 weeks! This current situation is all because of the stupidity of our MA legislators and the judges and justices who accepted being told what to do by the Legislature, showed sheepish tribal mentality and closed the courts for 6 months last year. Before the dumb idea to shutdown courts for practically all cases, the time to reach a judge after the notice expired was about 3 weeks. We should ASAP go back to that and improve on it – make it 1 week max.
This situation is especially irritating because I am 100% certain that if the shoe was on the other foot and a tenant needed to see a judge for something, let’s say their landlord stopped their water or entered illegally or changed locks, I bet a judge will magically avail himself or herself that same afternoon. Certainly the tenant won’t have to wait for 6 months.
To sum up:
- N95 masks should have been mass produced and distributed freely. The cloth masks that everyone is wearing are almost useless. They don’t protect you from Covid. They may protect other people from you but they do not protect you from other people and when some people are not wearing any masks at all the cloth masks are almost useless. It should have been more N95 masks and less Moratoriums and Business and Court Closures. No more economy closures, just wear N95s. That alone would have saved endless suffering and death.
- No more Court closures. Process cases over Zoom. It’s not perfect but it’s better than closing the doors.
- No more unfunded Moratoriums. Funded means 7-days processing time of the landlord getting paid after the landlord says they were not paid, not more.
- In Housing Court both tenants and landlords should be able to see a judge, magistrate or at least a Mediator 7 days after the Notice to Quit Expires. We live in the 21st century. We have the technology, we just need to want to do it.
- Making Evictions Harder only scares landlords (rightfully so) and Makes Admissions Harder. Tenants can’t find apartments to rent because most landlords predictably raised their rental requirements and are not renting to anyone with less than 700 credit score. It’s too risky otherwise. File this under Duh. Make evictions easier and faster not harder and longer. In exchange, create a safety net in MA called Eviction Insurance paid for by taxing landlords similar to Unemployment Insurance paid for by employers. Duh. The Eviction Insurance will pay for 3-6 months or longer in a motel/hotel until the evicted person or family is able to get back on their feet.
- And finally, ahh, how should I say this in a nice, non-confrontational, non-inflammatory, tempered, diplomatic and politically correct way, ahh, how about this – PLEASE fix the @#%^! Housing Court in MA!!! I own 45 apartments and I have been doing this for 23 years so I will get irritated for a couple of days but I can survive this nonsense but the average 3-family owner-occupied landlord cannot survive if evictions take 5 months to just reach a judge and then another month or more for a decision by the judge not to mention how long it takes after a decision to actually evict and not to mention what happens if every tenant gets a free lawyer as proposed. OMG! I don’t want to hear about Covid-related excuses, I don’t want to hear any excuses. Do your job and fix it!
This letter was sent to the Governor of MA and the Governor’s Council, the SJC, the Chief of Housing Court, the Chief of Trial Court, the Speaker of the House, Majority and Minority Leaders, the President of the Senate, Majority and Minority Leaders, The Boston Globe.