Open letter to the Full Legislature of MA (Senate and House) and to the Governor
Against Bill HD.5166 and similar bills proposing to extend Eviction Moratorium for another 12 months
My blog http://MassachusettsLandlords.com has become one of the most popular landlord-tenant sites in MA and I have been a landlord for about 22 years currently managing 45 apartments. Several weeks ago I wrote about Chapter 65 Law here http://MassachusettsLandlords.com/eviction-moratorium.
It’s quite deplorable that rep. Honan (why is this clearly biased person still a Chair of the Housing Committee?) and rep. Connolly are using the cover of a Pandemic when people are actually dying to push their old and tired ideas over which they and the free tenant lawyers/tenant lobbyists who have written this bill have been salivating and scheming to pass for decades. No perfectly good Pandemic should go to waste, right? All their golden hits are in this wet dream bill – rent control, the so called “just cause” evictions, creating artificially positive credit reports for tenants by prohibiting rent debts appearing on their credit reports, creating artificially positive housing history for tenants by prohibiting evictions to be visible to landlords, eliminating no-cause evictions, lengthening time to cure lease violation from 7 days to 30 days, freezing rent increases regardless of inflation, canceling the ability to enforce private contracts, turning every minor action or inaction of the landlord even when done in good faith into a 93A violation so they can be assured they will get their attorney fees paid by the landlord, etc.
On his blog Rep. Connolly is pulling his hair out because he says there is a backlog of 20,000 evictions waiting to be unleashed the moment the current Ch.65 Eviction Moratorium expires.
And whose fault is that?
We, the landlords, told you that this was going to happen and you ignored us. We told you that the “eviction moratorium” is going to create a massive backlog of evictions; we told you that it will increase the self-help incidents and we told you it was not the way to go but you didn’t listen.
We told you so.
This situation reminds me of what Trump does all the time. Because of his incompetence he causes some unnecessary crisis and then he goes on TV to pat himself on the back how well the crisis is being fixed by him.
Now the tenant lobbyists who wrote this bill without the input from landlords just like they did with Ch.65 want to extend the moratorium with another 12 months to “fix” all those piled up evictions caused by Ch.65?
The mistake that you made in the Ch.65 Eviction Moratorium is that you made tenants whole by letting them not pay the rent (oh, excuse me, postpone paying the rent) but did not make the landlords whole by paying the missed rent directly to the landlords. Deferred rent is unpaid rent because most tenants are judgment-proof in MA.
What did you expect would happen?
Here is the right way to do this:
If you want to order tenants to stay home and not move because you have some scientific data showing that moving from one apartment to another spreads more Covid-19, go ahead order them and create a law that penalizes them if they move but just remember there are legitimate situations that are sometimes beyond their control that require them to move. I just don’t think it’s necessary or possible or constitutional to order people not to move. Keep in mind tenants are already not moving much even without you ordering them not to move. On average I see each year about 20 of my tenants move, this year so far – only 4.
If your goal is to lower the rents in MA the way to do it is to increase supply of available apartments. How do you do that? By relaxing certain non-safety related regulations and costs to developers and by allowing multi-family zoning where currently only single-family is allowed. Research shows that single-family zoning was historically rooted in racism and it’s an effort to prevent “undesirables” (blacks, browns, immigrants…) from spoiling their “good” neighborhoods so we say increase their taxes until they allow multi-family zoning and use the money to make landlords whole during this Pandemic.
If your goal is to lower evictions, you need to remove the root causes of evictions. There are 3 types of evictions – 1) for non-payment of rent, 2) for no-cause or because the lease term simply expired and 3) for lease clause violations, the so called “for cause” evictions.
To eliminate the non-payment evictions, someone needs to pay the rent. If the tenant cannot pay it then since it’s in the interest of the State for that tenant to remain in their apartment due to Covid-19 then the State needs to find a way to pay it directly to the landlord. If the State wants to help only those tenants who are not paying the rent due to Covid-19 related reasons then the State should pay their rent and we will go to court to try to evict the tenants who are not paying the rent unrelated to Covid-19. If the state feels that no tenant should be evicted right now for non-payment then the State can cover all the unpaid rents regardless if Covid-19 related or not.
It looks that HD.5166 is giving the landlords an option to delay paying of our mortgages but even that is done in bad faith and with unacceptable strings attached. It is offensive. Even if it was done with no strings attached it would still be offensive. Mortgages are only a small part of where the rent money goes into! We also use the rent money to pay city taxes, state taxes, federal taxes, water, trash, electricity, gas, oil, property insurance, liability insurance, workers compensation insurance, umbrella insurance, work car insurance and car maintenance, health insurance, grass, snow, repairs to the apartments and the buildings, wages to maintenance workers and contractors, and finally we keep what’s left which is usually about 10% of the rents in profits to pay ourselves and put bread on the table for our families. So we need the whole rent in order to be made whole not just a break on when we pay our mortgages. And without making the landlords whole you have not eliminated the root cause for the non-payment evictions and they will keep piling on. On top of that in Section 6 (c) the Bill requires landlords for each month they get loan forbearance to “waive and forever hold tenants harmless from the obligation to pay that month’s rent for each rental unit located on the property” unless landlord demonstrates by clear and convincing evidence (way too high of a threshold) that the loss of income is not Covid-19 related (information which the landlords do not have, only the tenant has). WAIT, WHAT? So this whole thing about the mortgage forbearance is not giving anything to the landlords. It’s a trap requiring us to waive receiving our rents from the whole building.
So the bottom line for non-payment evictions is this – if the State wants to eliminate non-payment evictions, someone needs to pay the rent, the full rent, to the landlords. And by the way what is this nonsense about the State paying you the rent only if you own less than 15 apartments? What difference does it make if the landlord owns 1 or 15 or 1500? When the rent is unpaid, that’s an eviction waiting to happen and it’s piling on. If you truly want to eliminate that non-payment eviction, you need to pay the landlord.
If you want to eliminate the “no-cause” or “for cause” evictions it gets a little more complicated.
There are life situations where the landlord may really need to use her property – maybe a new job, maybe a death in the family, maybe an addition to the family and in those situations it’s unfair to prevent the landlord to access their own property. So you should leave that one as is. You should also leave the “for-cause” evictions as is. Right now we can give someone 7 days to cure a violation if the Lease allows it. You want to change that to 30 days but you are not doing anybody any favors because the landlord, the other tenants and neighbors have to live with the bad behavior of the tenant LONGER. That makes everybody’s lives harder except for the tenant who exhibits the bad behavior. That’s not the result that you want. The notice to quit (or cure) should be shortened to 3-days like most other states not extended to 30 days. Here are some examples of causes and while you read them think about the neighbors having to live with that for 30 days while the notice expires and the landlord is helpless to do anything – sub-letting to registered sex offenders or drug dealers, illegal vicious dogs, too many people living there, loud parties all the time, smoking, using drugs, fighting with other tenants, flooding downstairs apartments, dogs barking all the time, unpicked dog poop everywhere, damages done by pets, creating unsanitary or dangerous conditions inside or outside, refusing to allow access, blocking common areas or exits, removing batteries from smoke or carbon monoxide detectors, etc. The notice to quit or cure for these things should be 3-days so either leave the “for cause” evictions as is or lower the notice from 7-days to 3-days.
Let me also address the push that tenant lawyers and lobbyists are making in this bill and in general to create artificially better credit reports for tenants by prohibiting rent debts appearing on their credit reports and to create artificially better housing history for tenants by prohibiting evictions to be visible online to landlords.
Naturally tenant lawyers want to block derogatory tenant information from appearing on their credit report or housing history. In this bill they want to prohibit rent debts from appearing on the tenant’s credit report and want to prohibit landlords being able to see online the eviction history of the tenants. That’s because tenant lawyers secretly like evictions because evictions keep them employed. But the State as a matter of public policy should want less evictions not more. If landlords are forced to rent to tenants with fake good credit reports and eviction history, that’s an eviction waiting to happen anyway down the road because the credit and eviction history might look good but it’s the same low quality tenant hiding behind them so chances are it will lead to an eviction at some point. Bad for the tenant, bad for the landlord, bad for MA (but good for the tenant lawyers though).
If you want to lower evictions, don’t give us fake credit reports and eviction histories. Landlords need more information not less to make fair decisions.
If the concern is that landlords are not renting to tenants with bad credit reports, then set up a system where no debtor is above the law (judgment-proof) and give these tenants the opportunity to gradually pay off their debts by requiring them to do community service jobs or other state infrastructure jobs on weekends or in their spare time that pay a fair wage and pay that wage directly to the creditor. Help tenants assume personal responsibility and fix their credit reports by their employer directly paying those collection agencies which will improve tenant’s credit and paying their ex-landlords in exchange for the landlord removing the derogatory record in Housing Court.
If the concern is that sometimes people have similar names and sometimes tenants may get denied housing mistakenly because of another person with the same name who has multiple evictions, then require that the middle initial and year of birth is entered by Housing Court personnel into the docket information. Providing more information (not less) is the way to make fewer mistakes.
In conclusion, Bill HD. 5166 is a total disaster. I have rarely seen such an incompetent and anti-landlord and anti-business bill. It will mess up the whole economy of MA if it becomes law. It’s also unconstitutional just like Ch.65 for the simple reason that the Legislature cannot order another co-equal branch of Government, the Courts, to close their doors and stop seeing litigants for non-payment of rent or for whatever reason, the same way the Courts cannot order the Legislature to close its doors. It’s quite amazing that so many legislators (85 so far) have rushed to sign on to it and are willing to stake their name and reputation on it.
If this new bill becomes law or if you keep extending the Ch. 65 “Moratorium on Evictions” please understand that unrealized evictions will keep piling on, self-help attempts by desperate landlords to reclaim their property will inevitably increase, many landlords will go on strike by keeping their units unrented and the economy will take a serious hit down the road.
Don’t make the same mistake as in Ch.65 by just making the tenants whole. Make both the tenants and landlords whole by paying the unpaid rent directly to the landlord, we need the full rent paid by the State, not just mortgage forbearance and paid to all landlords, not just those with 15 units or less. That’s THE ONLY way to truly lower evictions and it’s the only way to prevent the economy from collapsing by destroying the middle class of landlords. If you don’t do the right thing now, you will have to come up with a much bigger stimulus package later to fix the destroyed economy.
And don’t say we didn’t warn you.
Elmir Simov, http://MassachusettsLandlords.com, founder.
ALL LANDLORDS, PLEASE WRITE TO THE LEGISLATORS NOW!
Senate as of today:
House as of today:
THE FOLLOWING LEGISLATORS HAVE SIGNED ON TO THIS BILL AS OF TODAY 7-19-20
SADLY, THEY ARE ALL DEMOCRATS EXCEPT SUSANNAH WHIPPS IS “UNENROLLED”. I DOUBT ANY OF THEM HAVE READ THE WHOLE BILL. I HAVE A FEELING THEY ARE TOLD BY THEIR LEADER WHAT TO SUPPORT AND BEING POLITICIANS THEIR DESIRE TO BE LIKED IS SO HIGH THAT THEY BLINDLY FOLLOW.