I know this is long but it contains everything on the topic of mandatory rent escrow, all pro and against arguments, etc.
This is designed to be the definitive paper on Rent Escrow in MA, an all-encompassing paper that looks at this issue from all angles.
I hope this can be used by landlords, tenants and their advocates and legislators to create the long overdue and much needed change in the law. This paper will be mailed to the Housing and Judiciary Committees at the MA State House, the MA Law Reform Institute and Greater Boston Legal Services who are tenant advocates and to other groups and legislators.
I don’t want to write about this issue ever again and I won’t. If you search my blog at http://MassachusettsLandlords.com about “escrow”, you will see that I have already written plenty on this topic. If this is not enough to convince Legislators to do the right thing, then I don’t know what is or will be.
My goal is to have this read by Tenant Advocates and Legislators and initiate a discussion to meet common ground so that we could modify the current law working together.
My schedule is wide open to sit down over coffee, maybe, with any legislator or tenant advocate to talk about all of this or we can do it over email or phone.
I give permission for reprinting and quoting portions of this or the whole article by anyone.
MY QUALIFICATIONS TO WRITE THIS MAJOR PAPER ON HOW MANDATORY RENT ESCROW SHOULD BE HANDLED IN MA.
I understand how the system works. I have been a landlord for close to 20 years and currently own 45 apartments (I had 55 but sold 10 in 2016). I have done over 45 evictions and have represented myself in front of a jury in one case where I won with the jury on all claims against me – a first in the history of the Western Housing Court.
In 2015-16 I sued, again alone, without a lawyer, insurance companies in MA and forced them to stop asking on their applications for insurance if we rent to Section 8 tenants as a precondition on them giving us a quote.
In addition, this blog was established in 2012 and quickly became one of the most popular sites in MA on landlord-tenant issues. About 2,000 new people see it each month.
Also I am a registered Democrat so I feel for the tenants and believe in regulating the landlord industry and in tenant protections. In fact, I am a liberal Democrat who was supporting Bernie Sanders all the way until Hillary Clinton was the nominee at which point I was 100% for her which was the only adult thing to do regardless if you were a Republican or a Democrat. I would have voted for her even if she wasn’t running against a mentally ill Orangutan. So I strongly believe in Regulations and I believe in and support tenant protections and I am against self-help and I am pro due process. But I am also a landlord, a business owner and I can see it from the other side too so I want the regulations to be fine-tuned and I am not only for due process when it comes to the tenants but also I believe that landlords should not be deprived of their due process as well.
I have written two books on landlord-tenant issues (at Amazon and Barnes and Noble).
WHAT IS THE MOST BASIC SOCIAL CONTRACT BETWEEN A LANDLORD AND A TENANT AND HOW IN MA THE TENANTS ARE NOT HELD TO THEIR END OF THIS CONTRACT DEPRIVING THE LANDLORDS OF THEIR DUE PROCESS RIGHTS?
At its very basic the landlord-tenant social contract is as follows: The tenant agrees to pay rent and the landlord agrees to provide a habitable space to the tenant to live in exchange for the rent.
If the tenant stops paying rent, the landlord is not required to provide any space to rent (habitable or not is irrelevant), ANY space. Of course, the landlord cannot resort to self-help and go change the locks and throw them out. Tenants have due process rights and so the landlord must bring his complaint to a judge who will decide.
If the landlord stops providing a habitable space, the tenant is not required to pay rent. Of course, the tenant cannot resort to self-help and just stop paying rent. The landlord has due process rights and the tenant must bring his complaint to a judge to decide.
It’s that simple.
The complexity arises when there are disputes over habitability which is in most cases. Who decides what a habitable space is? The tenant doesn’t decide. The landlord doesn’t decide. Even the Health Board doesn’t decide – they just quote the Sanitary Code and match what they see with specific clauses from the Code. Only a judge or a jury can decide. That’s called Due Process. Both sides have had their due process when the dispute at least reaches a judge.
Precisely because the tenant cannot decide/rule if there was a Breach of the Warranty of Habitability the rent must continue to be paid until a judge decides who gets what. Landlords don’t mind that in cases where there are disputes between landlord and tenant the rent be paid to a 3rd party. (If the health board is called, then it should be paid to them and if the health board is not called, then it should be paid to the Court or if the tenant has an attorney it could be paid to him/her to hold in escrow, etc). The important thing is that the rent is somehow accounted for and not just spent. If the rent is not paid to a 3rd party, then the tenant will not be allowed to use any Health Board reports in court for defenses or counterclaims because it will be presumed that they called the Health Board in bad faith and by engaging in self-help and unilaterally withholding and spending the rent they have deprived the landlord of the landlord’s property without giving the landlord their proper due process. Constitutionally no one can deprive anyone of their property but a judge or a jury. The rent becomes the landlord’s property on the 1st of each month (or whatever date the Lease says) and only a judge or a jury can deprive him of his property.
Having the tenant unilaterally withhold rent (unless it’s for urgently needed repairs with proper receipts, which is a compromise landlords are willing to allow) deprives the landlord of their due process rights – the right to reach a judge before their property is taken.
Once the dispute reaches a judge, the judge will decide how much the apartment was habitable and will order the Health Board or Court Clerk or Tenant Attorney to send checks to the landlord and tenant. For example, if the Breach of Warranty of Habitability was found to be 20% of the rent paid to the 3rd party, then the 3rd party sends the tenant 20% and the landlord 80%. At least we know the money will be there and there will be no delays because the tenant has to come up with the rent anyway so the current motivation for delays when the tenant can keep and just spend the rent on personal stuff will no longer be there.
WHAT DOES THE CONSTITUTION OF MASSACHUSETTS SAY ABOUT PROPERTY AND DUE PROCESS?
In Part of the First. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.,
Article XI says the following: “Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws”. IN OTHER WORDS, if someone is injured they have a right to see a judge freely, promptly and without delay.
Article XII says the following: “And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate; but by the judgment of his peers, or the law of the land.” IN OTHER WORDS, only a jury or a judge can deprive someone of their property.
and in Article XV it says: “In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been other ways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high-seas, and such as relate to mariners wages, the legislature shall hereafter find it necessary to alter it.” IN OTHER WORDS, if there is a dispute about property the parties have a right to a jury to decide those disputes.
WHAT IS THE PROBLEM WITH VOLUNTARY RENT ESCROW? IN OTHER WORDS, WHAT IS HAPPENING NOW AND WHY DO WE NEED IT TO CHANGE? WHY ARE MA LANDLORDS HURTING SO MUCH?
The reason we are hurting so much is because maybe about 90% of all calls placed by tenants to the Health Board are not made in Good Faith but even though they were bad faith calls we still have to go into hostile territory and repair in many cases things that were broken by the tenant and then when we reach a judge the Health Board citation is used against us to offset rent. There should be consequences for a tenant who calls the Health Board in bad faith or in Retaliation against us after we send them a Notice for Non-payment or after we ask them to do something they don’t want to do like lower the music of remove the pit-bull AND for us to have to go and repair AND get sued for the “poor conditions” AND at the end when we win these cases (which is most of the time) the rent is gone, we don’t get paid what we win in court because the rent was never escrowed AND while the proceedings continue and our property is being withheld unconstitutionally and without due process, we are unfairly pressured to settle bad faith cases against us because the longer we go the more we lose because there is no escrow AND we can’t collect anything after we win. In other words, we have a lot of skin in the game and the tenant has no skin in the game. They don’t lose and can’t lose anything by filing bad faith cases. The current system has no penalties built-in for that.
Ok, let me break this down into smaller pieces and describe how a standard landlord-tenant confrontation involving the Health Board happens and how long does it take to reach a judge.
I have had the Health Board called against me 11 times in 19 years so I have plenty of experience and material to use.
The tenant is living there for a year or two with no habitational complaints except occasional small issues like railings were loose or the kitchen sink was leaking because it needed to be tightened, I would get those calls and go and repair the next day or so. So no outstanding habitational issues. This is true by the way for all of my 11 cases. What is also true is that these tenants were problem tenants in one way or another – I get complaints about noise from neighbors or trash outside or loud music or a pit-bull let’s say and I warn the tenant to fix it. Occasionally they are very late with the rent so sometimes I even send him a Notice to Quit for Non-payment, they pay the rent late and so on and sometimes I have tenants who have never complained about any habitational issues but one day they just stop paying the rent, I wait about a week and I try to talk to them or reach them and then I send them the standard 14-day Notice to Quit.
So here is what we have so far:
- A tenant who is happy in the apartment, no current or outstanding complaints about poor conditions.
- The landlord sends them a note re doing that they are not supposed to be doing. The landlord is just trying to enforce the Lease which is their right.
- In retaliation for the note and in bad faith the tenant calls the Health Board because they suddenly “remember” they live in “terrible conditions”.
- The tenant raises Habitational Defenses and Counterclaims in court.
A bad faith call to the Health Board is when the tenant calls not because they are suffering under the weight of some terrible poor conditions but out of retaliation to something we said to them that they didn’t want to do or fix or follow or simply because they ran out of money for the rent.
LANDLORDS DON’T WANT TO BE RETALIATED AGAINST THE SAME WAY TENANTS DON’T WANT TO BE RETALIATED AGAINST. IF LANDLORD RETALIATION AGAINST TENANTS IS ILLEGAL WHY IS TENANT RETALIATION AGAINST LANDLORDS STILL LEGAL?
Even though only 5% call the Health Board in bad faith, these cases are devastating to most landlords because they have to go into hostile territory and repair, answer Discovery, provide a million papers to lawyers, have to answer to the Court about the “poor conditions” that were found and of course once the Health Board enters an apartment they have to cite something otherwise they will be accused of not doing their job, pay tenant attorney fees, and in the end they still don’t get the rent minus what is ordered to be deducted for the “poor conditions” because the rent was already spent on drugs or food or car tires or whatever, never escrowed, in most cases the tenant stops paying rent the moment they call the Health Board and about 3 months later when we reach a judge, the rent minus the court deductions is not available for us to collect, in other words we have been deprived of our property, it has been stolen. Yes, we can apply the Security and Last Month but we are still at a financial loss caused by this tenant retaliating against us, calling the Health Board in bad faith and then using the report to delay the eviction and cost us even more money.
So I send them the notice. They call the Health Board the next day, I receive the citation, go and repair over the next couple of days. Please keep in mind that I am going into hostile territory and most of the landlord-tenant physical and verbal confrontations happen when the landlord comes to repair. Most small landlords instinctively understand that this is not about the poor conditions (most of the stuff is either minor or something the tenant never complained about before they got the notice, so it’s all about getting back and retaliating against the landlord for daring to try to enforce the lease, it was never really about the “poor conditions”, the tenant knows it and the landlord knows it) and so landlords resent that fact and the fact that they have to repair things that in many cases were broken by the tenant sometimes intentionally but most of the time just through wear and tear because they were living and using the apartment. In many cases, because this bad faith call to the Health Board was never about the “poor conditions”, some tenants do not let the landlord in to repair, they play games, demanding 24 hour notices in writing for every day we come back to fix things, etc because they know the longer it takes the landlord to repair the more money they can keep. There is no mandatory escrow so they have no skin in the game and so sometimes they delay and sometimes they break things intentionally.
So I repair everything within a couple of days.
Then I have to wait for the Notice to expire (14-day, or 7-days or 30-days) and then serve them with the Summary Process. I file it 4 days later and then it takes about 2 weeks to see the judge. That is unless they file a Discovery request which adds another 2 weeks and a file an Answer which adds another week.
In the end I win the case by Agreement or a Hearing and even if the tenant gets 20-30% discount off the rent, they owe me thousands and that is after fully applying the Last Month and Security Deposit. The rent was not escrowed and so it was maybe spent on drugs, who knows, in any case, I will never see my 70-80% of the rent. It’s gone. You can’t collect on amounts like that in MA which is another thing that needs to be fixed in MA because it undermines the faith in the system of justice. (As a side note landlords should be able to deliver the Execution Monetary Judgment to the tenant’s bank and employer and be paid by them. Right now we are forced to start another “supplementary case” costing $135 and then hire a sheriff which is another $100 and in the end we still can’t collect.) So all of this having to repair, not being allowed in, extra trips, extra uncovered expenses, being countersued, answering Discovery and supplying documents, the sleepless nights was for nothing, a total waste of my resources and the resources of the whole System, all because there was no Mandatory Rent Escrow to cool down the urge to retaliate against the landlord.
WHAT NEEDS TO HAPPEN? HOW SHOULD THE LAW BE CHANGED TO OUTLAW TENANT RETALIATION AGAINST LANDLORDS? WHAT DO LANDLORDS WANT AND NEED?
We need to stop bad faith calls to the Health Board. We, of course, support tenants’ right to use the Health Board in situations where tenants have tried over email or text in writing to contact their landlords to make needed repairs and the landlords have not been there for them and have not fixed what needed to be fixed. Those are good faith calls to the Health Board. What we are against is all the bad faith calls to the Health Board when tenants call the Health Board and waste our time, the Board’s time and the Court’s resources and time by calling out of Retaliation against something the landlord said or did to them which they did not like not because of any poor conditions.
The only way for the tenant to demonstrate that they called the Health Board in good faith is to demonstrate that they have the rent. If they can’t account the rent, if it’s not there when they ask for Discovery, they can still call the Health Board, they just can’t use the Health Board report against the landlord in court for Defenses or Counterclaims. That’s all. Every request for Discovery or Tenants Answer must be served to the landlord with proof that the rent is in escrow!
Now, if they don’t want to pay the rent to the landlord, that’s fine. They can give it to the Health Board to safeguard or if they have a lawyer, they can give it to their lawyer or they can deposit it with the Court or in escrow with their bank but whatever they do, when they get to court or rather when they file their Answer and/or Discovery Request they need to account for all the money that has been put aside, all the rent that has been “withheld” or otherwise they cannot use any Habitational Issues against the landlord. So in the case above all 3 months of rent need to be accounted for and available and if the case goes on and takes longer to resolve (maybe it’s a more complex case with claims in addition to Habitational Claims requiring maybe a jury) then the rent needs to be put in escrow every new month until the case is fully resolved at which time the judge will order the proceeds to be dispersed accordingly. An exception could be made for not requiring that the full rent be escrowed in some circumstances where there may be urgent repairs to be done by the tenant under the “withhold and repair” statutes. In those cases, the tenant can escrow less than the full rent provided they have proper receipts, the tenant’s “labor” cannot be deducted but a proper professionally licensed repair contractor invoice including labor and materials can. Upon a written request by the landlord at any time of this process the tenant must provide proof the escrowing.
Here is a conversation between a judge and tenant that needs to be happening every time a judge sees a tenant who wants to raise Habitational Defenses and Counterclaims:
Judge: Hi, what can I do for you?
Tenant: The landlord wants to evict me but I have lived in terrible conditions and I have a Health Board Report. I stopped paying rent.
Judge: Ok, before we discuss that, do you have all the withheld rent to show me today? Where is it?
Tenant: No, I had to buy Christmas gifts and I had to buy 4 new tires for my car.
Judge: So you would have paid the rent to the landlord if there were no poor conditions, correct?
Tenant: Correct. The only reason I did not pay the rent and withheld it is because of the poor conditions which he won’t fix.
Judge: But you just told me that wasn’t the only reason – you just said you had to buy Christmas gifts and new tires for your car. Those things have nothing to do with the poor conditions, if any. If you withheld rent only because of the poor conditions, you would have the rent now. How do I know you withheld rent because of the poor conditions and not for any other reason? You might have called the Health Board not so much because of any poor conditions but because you didn’t have enough money to pay the rent and to buy Christmas gifts and tires for your car at the same time. So, unfortunately, we cannot discuss the health report until you have the rent accounted for which will demonstrate that you called the Health Board in good faith and not in bad faith. If you had to deduct anything from the rent to make urgent repairs, I need to see those receipts too.”
These conversations are not happening and that’s why we need a Mandatory Rent Escrow so these conversations are forced to happen so that our due process rights are protected. If a tenant has the rent, the judge might award them 30% percent of it and return the 70% to the landlord. If a tenant does not have the rent, the Landlord should get his 100% because it should be assumed that the reason the tenant called the Health Board had nothing to do with poor conditions, otherwise they will have the rent to show. What happens now (without Mandatory Rent Escrow) is that the rent is not there but the judge proceeds to review the Habitational Claims anyway, awards 30% from the rent to the tenant and 70% to the landlord, in other words, the same result, the difference is that the tenant in real life gets to keep 100% of the rent, the landlord never gets his 70% share and cannot collect. That’s legalized theft. Mandatory rent escrow will actually make the process fairer not only for the landlord but also for the tenant. In many cases, what happens is that the tenant gets evicted precisely because they cannot produce this 70% to give it to the landlord. The current law gives them a week to pay or they get evicted. If they were required to keep the rent in escrow rather than spending it, a lot of tenants might keep possession and remain in the apartment so what tenant advocates don’t understand is that Mandatory Rent Escrow is not only fairer to landlords (and will fix the current rent withholding law which is unconstitutional because it allows and encourages tenants to resort to self-help in taking possession of the landlord’s property without due process) but also will result in less evictions. It is really a win-win. The only tenants who will be unhappy is the ones who call the Health Board in bad faith for reasons unrelated to any poor conditions and some Tenant Advocates and Lawyers will be unhappy because they will be making less money. They are fighting tooth and nail to keep the status quo and their wallets thick.
NOW LET’S ADDRESS THE ARGUMENTS OF THE TENANT ADVOCATES.
Before we proceed I want to address three basic things about the basic landlord-tenant relationship.
BASIC QUESTION: Whose property is the rent and when does it become the landlord’s property?
ANSWER: The rent is the landlords’ property and it becomes their property on the 1st of each month or whatever the date the Lease says. If there is no Lease, then it’s assumed the 1st of each month.
QUESTION: Whose responsibility is when the rent cannot be accounted for?
ANSWER: It’s the tenant’s responsibility to account for the rent and so they must pay a price if they can’t account for it. The price that they must pay is that they would not be able to raise habitational defenses and counterclaims until they demonstrate that they have in it escrow – the full rent minus legal deductions if any.
QUESTION: If the tenant cannot pay the rent, are they entitled to live in the apt?
ANSWER: No, they are not. That’s capitalism for you. If you want to introduce some Socialism into it, I am open to discussing it, the state could pay the rent until they get back on their feet similar to how the state pays when people with no money need emergency room treatment. Health Care is assumed to be a right and that’s why the State pays the emergency bills. Having a place to live is not a right in our Capitalist Society. Maybe it should be, but that’s another discussion. Right now if you pay no rent, you can’t live in the apartment, period. This is where the tenant advocates are confused and their arguments show it. We live in a Capitalist Society, not Socialist. You and I may not like it but it is what it is. Landlords are not charities, they are not supposed to provide shelter for free. The basic underlying argument of the tenant advocates is: “Just because someone doesn’t have the money for the rent, doesn’t mean that they should live in poor conditions.” Certainly we don’t want anyone to live in substandard conditions but the fact is they are not even entitled to live in the apartment at all if they don’t pay the rent, even if the conditions were perfect and the apartment met and exceeded every word in the Sanitary Code (if there is such an apartment in existence, which there isn’t). Unless the State pays Massachusetts Landlords when the tenant is temporarily without any means of paying the rent, they cannot stay in our apartment for free. If well-intentioned tenant advocates want to introduce Socialism and have a form of rent insurance provided by the State, sure, we can talk about it. But in the current system the rent is the property of the landlord and must be paid…on time. Only a judge can determine if there are poor conditions and how much of the rent could or should have been withheld, not the tenants. Until then, no tenant should resort to self-help, the rent must be accounted for and at least paid to a 3rd party to hold in escrow for the court to decide what to do with it after the hearing.
Now that these three basic issues are understood and are out of the way we can proceed to answer the concerns that tenant advocates raise in order to convince legislators not to vote for mandatory rent escrow.
ARGUMENTS FROM THE MASSACHUSETTS LAW REVIEW INSTITUTE
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Requiring a tenant to escrow amounts claimed by a landlord, which may be in dispute, without the opportunity for a hearing prior to ordering escrowing may be unconstitutional.
MASSACHUSETTS LANDLORDS ANSWER: You are right. Requiring a tenant to escrow any random amount claimed by the landlord would be unconstitutional. But the amounts are not in dispute. They are already in the contract and they are called the Rent which the tenant is supposed to pay anyway. The full rent is the property of the landlord until a judge says otherwise.
You are also right that the tenant should not be asked to pay the rent when there are any disputes without having any Hearing with a judge. But there is already a hearing coming. It’s been scheduled. It will happen. No one is depriving tenants of their due process rights. What they are putting in escrow is just for the use and occupancy amount per the Lease Contract because they are still using our apartment while we are both waiting for the Hearing. It’s the landlord whose property is unconstitutionally confiscated by the tenant and spent on personal things and not repairs before he reaches a judge so it is their due process rights that are not respected and that are violated. The tenant is already supposed to pay the rent to the landlord by Contract until he reaches a judge who will resolve the argument about it. Stop saying tenants are deprived of a hearing and before they reach a hearing they are made to pay the landlord random amounts “claimed” by the landlord. They are not deprived of a hearing and they are not made to pay random amounts.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: We want to have a separate hearing to discuss to escrow or not to escrow and how much before the actual trial hearing. A pre-escrow order hearing allows a Judge to establish the amount of the current lawfully agreed upon rent and to hear if there are conditions that would warrant a reduced escrow. These separate pre-trial escrow hearings are needed because a clear order from a Judge is needed about the exact amount the tenant must escrow, when it is due, and what happens if the tenants do not pay it.
Some tenants facing eviction are unable to speak English and suffer from mental and physical health challenges and are highly unlikely to be aware of an automatic escrow requirement prior to coming to court.
Also these separate pre-trial hearings on an escrow motion are needed to allow the landlord to ask for access (if tenants are not allowing access for repairs to be done) and to ask the judge for funds the escrow, if needed, to make repairs.
MASSACHUSETTS LANDLORDS ANSWER: We oppose any more hearings. It already takes us about 3 months to reach a judge, we don’t need to protract that with another week or two. The amount that the tenants need to escrow is already known. It’s the full rent minus any receipts for any repairs the tenant had to do. Everyone knows when the rent is due no need for a judge to tell them, no need for an extra hearing delaying the proceedings.
The argument about some tenants who do not speak English or suffer from mental illness therefore how are they going to be notified that the rent must be put in escrow is a bogus argument – believe me, they will know. The Mandatory rent escrow will be in every lease, and it will be the first thing the Health Board tells them when they call and the landlord will make sure they tell them too because that is so very important to the landlord. The court can also tell them in the Summary Process paperwork.
Text messages or emails can be translated into Spanish and friends and relatives who are not mentally ill and who are helping a mentally will tenant will know about the mandatory escrow, so, nice try, but all tenants will know that they cannot call the Health Board if they are not prepared to escrow the rent.
We can ask for access to the apartment during the normal first Hearing in court even though access will not be a problem because the tenants who escrow rent will have no reason to play games and not allow access. It’s the tenants who call the Health Board in bad faith who play those games. As far as the landlord getting money for repairs, again don’t worry about it, we don’t need a hearing about escrow before the first hearing where the judge will simply verify that the rent is already in escrow and then proceed with the claims.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Consequence of not paying escrow should be that a trial will be held as soon as possible. Our proposal further clarifies that if a tenant does not pay the rent escrow amount ordered by a court, a trial will be held as soon as possible. If a tenant does not escrow rent and they have requested a jury trial, which may be scheduled a month or two away depending upon the court’s caseload and the ability to pool a jury, a bench trial must be held with at least one week’s notice to the parties.
MASSACHUSETTS LANDLORDS ANSWER: What you are suggesting is that you will be willing to “allow” Mandatory Rent Escrow if a jury trial is requested by the tenant and if they don’t have it in escrow, then their jury trial will be replaced by a bench trial. While it is great that you have come to the realization that Mandatory Rent Escrow should be the law when there are jury trials which can take over a year to reach considering Full Discovery, Depositions, etc, you can’t just take away a jury trial and replace it with a bench trial against the will of the tenants because that would be clearly unconstitutional and will not stand in court. Tenants and all of us are entitled to a jury trial. The fact that you are even suggesting this should immediately make all of your other arguments suspect, if I was a legislator and reading this.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Rent should be escrowed prospectively as of the Judge’s order. As a practical matter, most cases are resolved on the original trial date or the rescheduled trial date and escrowing would not be needed up to that point because the case gets decided and disposed of. We believe any escrowing that is not prospective in nature from the date of the order is likely unconstitutional.
MASSACHUSETTS LANDLORDS ANSWER: You misunderstand why we are asking for Mandatory Rent Escrow. It is not needed to speed up the process. It is needed to eliminate bad faith cases from the System altogether and make tenant retaliation against landlords illegal. The rent for the 3 months or so while we are waiting to reach the judge also needs to be accounted for otherwise the tenant cannot complain about “poor conditions” to the judge. There is nothing unconstitutional about that. It’s our property at least until the judge or jury say otherwise and it needs to be accounted for, not spent.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Judges are currently ordering rent escrow usually for the full rent. We believe it is highly likely that Judges will in most cases order tenants to pay escrow where a landlord makes such a request. So far, we have never been given an actual case where a Judge has refused to order escrow. We further have no evidence that tenants obstruct and damage to justify a lower escrow amount and again would want to see real escrow cases where this is happening.
MASSACHUSETTS LANDLORDS ANSWER: I, Elmir Simov, have personally had at least several cases where I was not allowed into the apartment to repair their “terrible” living conditions and I had to go to a judge and file a restraining order to be allowed in! Of course, the judge allowed it, what else are they going to do. The problem is that these restraining orders cost another $135 (so much for Justice being free, right?) and waste time. All of these unnecessary confrontations about access will go away when Mandatory Rent Escrow is enacted because it will be no longer in the tenants’ interest to play these games because they will have some skin in the game. Right now they have no skin in the game.
I, Elmir Simov, have also had cases where I asked for escrow and was denied by Robert Fields, Western Housing Court.
Also, I, Elmir Simov, had one case where the tenant called Health Board, then I repaired, then they did more damage and called the Health Board again.
If all of this has happened to me, I can only imagine the scope of it out there.
My educated guess is that judges allow escrow about half of the time – when you ask judges for escrow half of the time they will allow it and half of the time they won’t and sometimes different judges rule differently on escrow on the same facts.
In any case, we don’t want to be at the mercy of the judges when it comes to Tenant Retaliation Against Landlords and calling the Health Board in bad faith. We need a permanent law making it illegal.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: A fair escrow system must have due process protections built into it, and not strip tenants of a hearing.
MASSACHUSETTS LANDLORDS ANSWER: We talked about this. Stop saying that tenants are stripped of their due process rights and. They are not. Nobody is stripped of their day in court. The court date has been scheduled. The only thing we want is when we both get into court for the tenant to account for our property (the rent) so that the judge can review the poor conditions and allocate it property between the two parties in dispute. The tenant is not asked to have anything extra than what they are already required to have – the rent!
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: To deny a tenant a hearing prior to escrowing and to require tenants to retroactively deposit disputed amounts would be a deprivation of basic due process rights.
MASSACHUSETTS LANDLORDS ANSWER: There is nothing unconstitutional in asking the tenant to pay the rent to the landlord (or as a compromise to a 3rd party) until the first Hearing. Actually, it’s the other way around – to take the landlords’ property prior to a Hearing is a deprivation of landlords’ basic due process rights. The rent is being deposited in escrow only because the tenant uses our product (the apartment) while waiting for trial. In this respect landlord-tenant relationships are different from other business relationship. The nominal amount for use and occupancy as determined by the Lease must be put aside in escrow until we wait to see a judge. This is needed in order to preserve the landlords’ constitutional due process rights and deprivation of property rights.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: The Supreme Judicial Court and the U.S. Supreme Court have held that even temporary takings of private property, like rent payments and real property, without notice and opportunity for a hearing, violate Due Process of Law.
MASSACHUSETTS LANDLORDS ANSWER: You are making my point. Duh!
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Due process requires, at a minimum, an opportunity to be heard “at
a meaningful time and in a meaningful manner.”
MASSACHUSETTS LANDLORDS ANSWER: We agree.
Several words about the cases cited by MLRI to try to “prove” that mandatory rent escrow is somehow unconstitutional. First of all, out of state cases cannot be used as a legal precedent in MA and second, they are 45 years old cases! The fact is that more and more states are adopting mandatory rent escrow (as of this writing I think 35 of 50 states have it) as they come to the conclusion that it is not only Constitutional but also in the best interest of tenants, landlords, Health Boards, Courts and the Department of Revenue. The only group whose interests will be affected will be the tenant attorneys who will have less business and will make less money and the small minority of tenants who do not withhold the rent but spend it not on repairs but on personal stuff and cannot account for it when they reach the court. Bad-faith cases will dry up and the 5% of tenants who abuse the system won’t like Mandatory Rent Escrow either.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Retroactive rent escrow would allow those with sufficient resources to fully defend their cases, but would serve to block court access to those defendants who could not post the required rent payments. Laws with this effect violate Article 11 of the Massachusetts Declaration of Rights by requiring tenants to purchase their day in court.
MASSACHUSETTS LANDLORDS ANSWER: Nobody is purchasing their day in court except landlords because we are required to pay the court $135 to be seen by a judge (: I don’t remember the Constitution saying it’s Ok to charge court fees to get access to justice but I am sure the SJC has found reasons not to see it my way (:. Tenants don’t need to pay a thing to see a judge. The rental payments are something the tenants must pay anyway. Tenants who don’t have the rent because they ran out of money should not be able to raise any habitational issues because them running out of money had nothing to do with the habitational issues. Co-mingling these two issues is unfair to landlords. We have nothing to do with them running out of money because they had no savings or lost a job or because they may be addicted to drugs so the money went there. Don’t punish us financially and otherwise because of the tenant’s financial troubles. We are not a charity.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Tenants are and should be allowed to withhold rent prior to calling the Health Board or reaching a judge. How else can they force landlords to repair?
MASSACHUSETTS LANDLORDS ANSWER: We agree. They should be allowed to withhold rent but there is a difference between withholding it and spending it. Withholding it means that the rent is deposited somewhere, they are just not giving it to the landlord, they are temporarily withholding it and can produce it at any time the landlord wants to see it or the court wants to see it. Tenants who call the Health Board in bad faith are not withholding the rent. They are permanently spending it and not on repairs but on personal stuff. That’s the wrong thing to do and it’s unconstitutional and it has to stop.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Laws that sanction a tenant who fails to make escrow by entering an automatic judgment against the tenant violate the right to due process by eviscerating substantive rights.
MASSACHUSETTS LANDLORDS ANSWER: Do Mandatory Sentencing Laws violate due process? Do “three strikes and you are out” laws violate due process? If you do certain things, then you should be precluded from raising certain defenses. This concept is well established in the law. For example, under the current law if tenants are being evicted for cause, they are precluded from raising habitational defenses and counterclaims. Why? Because being evicted for cause and poor conditions have nothing to do with each other. The tenant can’t say: “Judge, I am being evicted for cause because I have a pit-bull but the sink is leaking so you can’t evict me.” What? That just doesn’t make sense. So, similarly, a tenant should not be able to say: “Judge, I stopped paying the rent because the landlord asked me to lower my music or I stopped paying the rent because I didn’t have enough money for the rent but the sink is leaking so you can’t evict me.” In effect asking a judge for a discount on the rent because the landlord asked you to lower the music or otherwise follow the lease, is just plain wrong and unfair because it encourages Retaliation against the Landlord. Of course the tenant never admits and the current law never asks if that was the real reason for the “withholding of the rent”. When a tenant calls the Health Board because they don’t have the rent, they should not be allowed to claim Habitational Defenses and Counterclaims because them running out of money for the rent and the poor conditions, if any, have nothing to do with each over. The tenant should not be able to say: “Judge, I don’t have the rent, I cannot account for it, but the sink is leaking so give me a discount off the rent and let me stay in the apt.” On the other hand if they can demonstrate that they put the money in escrow and have it, only then they can raise habitational issues and say:”The only reason I withheld the rent is because I wanted the poor conditions to be fixed and I have the rent to prove that claim, it’s right here.” Another example that comes to mind is that when landlords try to evict a tenant within 6 months of them calling the Health Board, landlords are presumed to have engaged in Retaliation and the burden of proof falls on them to prove with “clear and convincing evidence” that they did not. Are landlords’ substantive rights eviscerated? No, they are not. In other words, when the litigants do something they are not supposed do, they may lose some of their privileges and rights by default. So tenants who cannot account for the rent must be presumed to have called the Health Board in bad faith and there are consequences to that.
TENANT ADVOCATES OLIVE BRANCH: We do not oppose, however, if a case is delayed because of a request for a jury trial, that escrowing is mandatory. In other words a Judge would have to issue an escrow order upon motion by the landlord if a tenant requested a jury trial.
MASSACHUSETTS LANDLORDS ANSWER: Ok, that’s good. We have some common ground to begin talking with each other.
ARGUMENTS COMING FROM THE GREATER BOSTON LEGAL SERVICES:
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Landlords claim that tenants always try to raise habitational issues but in 66% of the cases tenants are not allowed to raise habitational counterclaims either because they were in arrears at the time the landlord was notified about the “poor conditions” or the conditions did not rise to the level of rent deductions (in other words, were not serious enough) or the evictions was for cause, or the landlord had no notice or the tenant did not provide access. About 373 cases where MGL 239, 8A was mentioned from 1998 to 2003 were analyzed to come up with this 66% number.
MASSACHUSETTS LANDLORDS ANSWER: Just because conditions are determined at the end by a judge not to rise to the level of rent deductions doesn’t mean tenants can’t raise habitational defenses and counterclaims so you are probably including some people in these 66% that should not be included but even if you are right about these numbers we are not concerned with the 66% where habitational defenses are not allowed. We are concerned with a portion of the 34% where they are allowed and specifically some of those 34% are as a result of bad faith calls to the Health Board unrelated to the poor conditions. They are maybe 5-10%. Those are our only concern when talking about Mandatory Rent Escrow.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Judges already have the authority to escrow rents.
MASSACHUSETTS LANDLORDS ANSWER: If this voluntary rent escrow was working for us, we would not be having this discussion. Voluntary rent escrow is not working for anyone except tenants who abuse the system and retaliate against landlords. It’s also working great for you, the tenant advocates and that’s why you are fighting tooth and nail to maintain the status quo.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Mandatory Rent Escrow is unnecessary because most eviction cases are decided and settled quickly, almost all are resolved the day they get to court.
MASSACHUSETTS LANDLORDS ANSWER: Yes, but to get to court it takes about 3 months during which we are being deprived of our property (the rent) without a Hearing by a judge. We need our property to be escrowed until we reach that first Hearing and then if there will be more future Hearings or a Jury Trial to be escrowed prospectively as well. We need both the past due rent for the 3 months until we reach a judge escrowed and the accruing rent escrowed until the disposition of the case or at least as long as the tenant lives in our apartment. In both cases (prior rent and future rent) the tenant lived in the apartment and so the there is no real difference between the two kinds of rent. By the way, if you don’t want to escrow the accrued rent for the 3 months it takes to reach a judge, then shorten the eviction notice from 14 to 3 days as it is in many states or allow us to charge more than First Month, Last Month, Security Deposit and Lock change. Let the market decide how much we can charge at move-in. And by the way while we are on the topic, we need to be allowed to charge an application fee like Realtors are allowed when doing exactly what we are doing – screening tenants for a new apartment. Let the market work on this one. After all, it’s a business decision – if a landlord charges too much for a tenant to move-in, they will have less tenants to choose from. I support regulations because I don’t entirely trust the market but this particular regulation about what we can charge at move-in is completely unnecessary. I understand it’s well intentioned but it’s unnecessary. If legilsators are willing to shorten the Notice to Quit and/or allow us to charge more at move-in, then we may not need Mandatory Rent escrow for the 3 months while we are waiting to see the judge.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Mandatory rent escrow would not resolve these cases any faster. About 73% get disposed in 16 days from entry which is the day of the first hearing, about 15% in 30 days or less and about 12% in over 30 days.
MASSACHUSETTS LANDLORDS ANSWER: You are right. Mandatory rent escrow may not speed things up for most cases (even though it will certainly speed up some prolonged cases because the tenant’s incentive to intentionally delay will be removed with Mandatory Rent Escrow, why prolong the case when they have to have and escrow the rent while they live in apartment anyway?). But we are not interested in speed only. We are mainly interested in eliminating the bad faith cases to begin with and having our rent actually returned to us (or whatever portion the judge rules needs to be returned). Right now we win most of these cases and we get nothing back.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: When you sue somebody, they should not be required to deposit the full amount of what you are suing them for or even a partial amount. If you win, you can try to collect but demanding they escrow the disputed amount in advance is unconstitutional.
MASSACHUSETTS LANDLORDS ANSWER: You are right. That might be unconstitutional (even though this is being done to landlords every day in Housing Court when their assets get frozen by a secret motion done by the tenant to the judge before the first Hearing). But landlord-tenant relationships are different from all other business relationships because while we are suing the tenant to get him out, he is STILL utilizing and using our product over which they have seized control which we cannot get back until we see a judge. The tenant is still living inside the apartment. So the money we are asking to be escrowed has to do with that and not with barring them from reaching a judge. If they stop using our product while we are waiting to reach someone who can legally arbitrate our dispute, then no Mandatory Rent Escrow would be needed for the accrued usage of our product because there will be no usage of our product. But the rent needs to be put in escrow as long as our product is being used.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: It would be too difficult for the Court to establish escrow accounts, the logistical requirements and administrative costs will go up.
MASSACHUSETTS LANDLORDS ANSWER: Really? This is your argument against doing the right thing? It would be too complicated and burdensome? I think jury trials are quite complicated, expensive and burdensome. If you get rid of those, you would lower costs for the court system for sure. Just have one person, the King, decide who lives and dies. So much cheaper and easier on all involved. Most states in this country already have rent escrow payable to the courts and they have managed somehow. MGL 239, 8A already has a provision for court escrow, it’s voluntary but it’s there so the court already has the capacity to take escrow.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Mandatory Rent Escrow will deprive the tenant the right to tell the court about unsafe and unsanitary conditions which they lived with and which the landlord knew about if the tenant did not deposit with the court the money the landlord claims is due.
MASSACHUSETTS LANDLORDS ANSWER: Tenants who do not have the rent to show and account for will be presumed not to have withheld it but to have spent it and will be barred from complaining about “poor conditions” because not having the rent has nothing to do with poor conditions. Only if the rent was properly withheld which proves that they would have paid it to the landlord if only there were no poor conditions, they can discuss the poor conditions.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: The tenant may not have all the rent because they had to make legitimate repairs – what if they had to buy a heater because there was no heat, what if they had to pay for medical treatment because of the bad conditions, what if they had to pay for the utilities because the owner did not pay for them even though they were responsible for them, what if the landlord claimed the tenant owed more than she did, etc?
MASSACHUSETTS LANDLORDS ANSWER: First of all, the landlord cannot claim more than the full rent because the Lease doesn’t allow them to. They would have no basis to claim more. And second, if tenants don’t have all the rent because they had to make repairs, that’s fine. Then deposit in escrow what is left but be prepared to show all the deductions in receipts. You must account for the full rent somehow because that is a property of the landlord until a judge says otherwise. The full rent is what is escrowed plus the receipts or invoices for the repairs. No tenant can be evicted without a trial. At trial, the judge will ask if they escrowed the rent or at least the portion of the rent minus the actual receipts for the repairs. If they did that, then he will hear their Habitational Defenses and Counterclaims. If they cannot account for the rent (minus the repair receipts not counting their own labor the same way landlords can’t count for their own labor when they account for the Security Deposit when tenants vacate), if it’s not there, they will be presumed to have acted in bad faith and their Habitational Defenses and Counterclaims not allowed to proceed.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: What if the tenant lives with substandard conditions, complains about them to the landlord who promises to fix them but does not fix them, then the tenant stops paying the rent one day because he lost his job? At trial he brings up the substandard conditions and the judge allows him to keep 20% of the rent for the duration of the poor conditions. If the tenant cannot pay the 80% of the “unpaid” rent to the landlord within a week, they must vacate. This is the current law. Under the current law, the court may find that landlord owes money to the tenant because of the poor conditions not the other way around in which case the tenant does not need to vacate the apartment. Under Mandatory Rent Escrow, because this tenant lost his job and simply did not have money to pay the rent, they would not be able to put the rent in escrow and to have their day in court.
MASSACHUSETTS LANDLORDS ANSWER: If the tenant can prove that they made these requests in writing and the landlords ignored them and after that the tenant stopped paying the rent to force the landlord to repair then they should be allowed to bring up Habitational Defenses and Counterclaims. If they have the proof in writing that they notified the landlord then the burden shifts on him to explain why the poor conditions were not fixed. At lot of tenants lie in court because they know there will be no consequences to them lying. “Judge, we told him over the phone but he refused to fix” when they in fact never told the landlord. And then the Housing Court judge believes them and doesn’t believe us. That’s what’s happening so these notices have to be in writing (a text or an email will do as long as there is or has been an active thread already so we know the landlord really got it, certified letter is fine too) so there is no dispute about the timeline of events. We understand you are concerned about legitimate cases where tenants should be allowed to withhold and raise habitational issues. If they notified the landlord in writing and he refused to do his job, then they can start withholding legally. Put the rent in escrow because you are still living in the landlord’s apt and wait for your day in court where you can raise all the Habitational defenses and counterclaims you want. But if you never notified the landlord in writing about the poor conditions, you can’t just stop paying rent because you lost your job or because the landlord asked you to do something that you didn’t like. Or rather, you can stop paying it, but you won’t be allowed to raise any habitational defenses and counterclaims because you stopping to pay the rent had nothing to do with poor conditions. If it had anything to do with them, you would have the notices to the landlord in writing and you would have the rent to show. If you don’t have the rent, at least have the notices to the landlord in writing and prior to you not having the rent. Of course, you have to give your landlord some reasonable time to repair. You can’t just send the notice in writing one day and then stop paying the rent the next day. You are mixing up Capitalism with Socialism/Communism because your argument is basically “shouldn’t the tenant be entitled to get a discount on the rent and possibly keep their apartment if there were poor conditions in the apartment even though they stopped paying the rent because they lost their job?” The answer is – under some Utopian system where the rent is maybe insured by the Government, maybe yes, but under Capitalism, no. If the tenant stops paying the rent through their fault, then they cannot get any discounts or stay, unless they can show proof in writing that the landlord was notified of the conditions prior to them stopping to pay the rent.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: The current law requires that that the landlord has notice about serious conditions before a tenant begins “rent withholding” in order for the tenant to raise Habitational Defenses and Counterclaims. The tenant is not required to give notice in writing and shouldn’t be required – they may not be fluent in English or they may be mentally disabled.
MASSACHUSETTS LANDLORDS ANSWER: You know this is bullshit argument, right? I mean they are all bullshit arguments but the sheer arrogance of this one is just way out there. I could have never thought of an argument like that – “we can’t require tenants to give landlords written notices because some tenants just can’t give written notices”. You have text messaging and you have emails and I have Google translate so please send me a text in Mandarin or whatever language you want and I will translate it and you can do the same plus I have never met a tenant without any relatives or friends who can help them. By the way, if they are “not be fluent in English or are mentally disabled” how did they manage to give me the non-written notice which the current law requires? When there is will, there is a way. By the way, English is also not my native language so I do know what I am talking about.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Mandatory Rent Escrow is not the solution. Having organizations which help landlords follow the law and screen and manage tenants better, etc. is the answer. Mediation Services in court also can help landlords and tenants reach acceptable to both compromises. Mandatory rent escrow does not get repairs made. It does not help landlords set up the systems they need to manage their properties better and it does not help landlords and tenants reach agreements.
MASSACHUSETTS LANDLORDS ANSWER: When we go to court, the free lawyers there help only tenants, never landlords. In 19 years, I have been helped zero times and believe me I have tried and tenants get them automatically, they don’t even have to ask, the free lawyers are roaming the halls announcing their services. Also the purpose of Mandatory Rent Escrow is not to get the repairs made. There are other mechanisms for that like the current Deduct and Repair laws which are not being followed by about 5% of tenants and which allow the tenant to withhold the rent and/or spending to effectuate repairs but not to spend it on anything other than the repairs. The purpose of the Mandatory Rent Escrow is to eliminate the bad faith calls to the Health Board, lower the frivolous cases in Housing Court, preserve the property of the landlord, save tenants from some evictions (which happen only because the tenant never escrowed the rent and doesn’t have it now to pay the landlord’s share per the court order), lower the foreclosure rate in MA and increase the tax revenue of MA.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: If rent were escrowed, how would it help an owner facing foreclosure?
MASSACHUSETTS LANDLORDS ANSWER: The landlord can always ask the Court to allow them to use a portion of the escrow for hardship or the landlord can use his savings for the duration of the Proceedings but at least in the end he might get a lump sum as landlords win eviction cases about 90% of the time which money is not there for the landlord under the current system. Landlords who “win” almost never recover their lost property that judges say they are owed. Escrowing will stop this theft and help owners who face foreclosure.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: 85% of cases are resolved in 2 weeks. Landlords don’t need escrowing.
MASSACHUSETTS LANDLORDS ANSWER: It is probably true that 85% of cases are resolved in 2 weeks from the date of entry but in real life it’s more like 2.5 – 3 months at the very minimum counting from when the rent stopped getting paid. Here are some actual dates:
Oct 1st – Tenant stops paying rent
Oct 10th – landlord learns about it (or maybe he learns several days earlier but gives the tenant a grace period because he is a human being and not an animal) and sends a 14-day notice
Oct 13th – Notice served by sheriff or constable
Oct 28th – 14 days in the notice have expired; landlord is free to file Summary Process
Oct 29th – landlord files SP
Nov 14th – 16 days from entry date is first Hearing with a Judge (these are the 16 days that Tenant Advocates talk about and choose to concentrate on while intentionally ignoring all the rest)
Nov 14th – 85% of cases are resolved with an Agreement or a Hearing in front of a judge.
Nov 21th – we get the Judgment in our favor in the mail
Nov 22nd – file a Motion to issue the execution.
Nov 29th – it takes about a week to go in front of a Judge to hear landlords’ Motion to issue the execution.
Dec 10th – We win the Execution but we have to wait 10 days before Execution to issue.
Then a couple of more days to get it in the mail
Then if you have to physically evict the tenant that’s another 2-3 weeks.
So this whole thing started on Oct 1st and will probably end on Jan 1st.
That’s about 3 months to evict the tenant. Keep in mind that they live in and use the apt – our product, all this time. So, first it’s not just 16 days and 2nd, even if 85% of cases get “resolved” on the day of the trial they are not really resolved until the tenant is out. And these 3 months are if there is no Answer or Request for Discovery. The Answer automatically adds a week and the Discovery 10 days, if I remember correctly. But no matter how you measure it, it’s at least 3 months to resolve an eviction case not 16 days. So cute when they say that. But it’s not cute that legislators fall for it. Then again half of America fell for Mr. Make-America-White-Again so why am I surprised that these tenant advocate non-sense arguments have traction? Also don’t forget that evictions may appear uncontested in court and 85% of cases may get “resolved” on the day of the Hearing but that’s because all the unnecessary delay, struggle, confrontations and expenses to do repairs occur before landlords ever get to court. Rent escrowing would stop this costly and destructive practice.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Health Board inspectors will be swamped.
MASSACHUSETTS LANDLORDS ANSWER: Ha, that’s funny. Math anyone? How do you decrease the amount of calls after you eliminate the bad faith calls and get drowned in even more work? Actually inspectors want mandatory rent escrowing to free them from bad faith calls to the Health Board so they can spend the time on the legitimate good faith cases.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: In order to be heard by the court, Mandatory Rent escrow would require tenants to escrow the amount of rent that a landlord claims is owed. In what other case must a defendant pay what the plaintiff contends is due simply to be heard by a court?
MASSACHUSETTS LANDLORDS ANSWER: Landlord-tenant cases are different because the tenant has control over our product and still uses it until the Hearing is reached. The Lease states what that usage costs. If there are arguments about it because the product is less than perfect in the eyes of the tenant, they can a) stop using it or b) place the usage costs (the rent) stated in the Lease in escrow until a judge can resolve the dispute.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: In many cases landlord initiates eviction because the landlord and tenant have been unable to agree on a rent increase. In such cases, it would be unfair for the tenant to pay in court any figure the landlord sets as new rent, as a precondition to asserting defense against eviction.
MASSACHUSETTS LANDLORDS ANSWER: We agree. So place the old rent not the new rent in escrow.
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: Mandatory rent escrow would prevent judges from fashioning appropriate protections for both landlords and tenants depending on the unique circumstances of the individual cases.
MASSACHUSETTS LANDLORDS ANSWER: How is the tenant putting the rent in escrow going to prevent a judge from ruling on the case one way or another when the case reaches him or her?
TENANT ADVOCATES ARGUMENT TO PRESERVE THE STATUS QUO: If a tenant’s eviction defense cannot be considered by a judge unless the tenant first pays any amount a landlord claims he owes, this amounts to the tenant having to pay to have his day in court.
MASSACHUSETTS LANDLORDS ANSWER: Actually, it’s exactly the other way around. If the only way a landlord can reach a judge is by having to pay by having his property (the rent) withheld and taken away from him because the tenant arbitrarily claims the landlord owes him full rent because of the poor conditions, this amounts to the landlord having to pay to have his day in court and amounts to his due process rights being violated because the tenant decided to resort to self-help without being authorized by a judge. I just have to compliment all the tenant advocates here for their skillful taking this clearly unconstitutional treatment of landlords and presenting it over the years to be exactly the opposite – as unconstitutional treatment towards the tenant. Bravo! This takes some skills. And you have fooled all the legislators all these years. Wow!
About 36 states already have a mandatory rent escrow. When a tenant is being evicted, for example, they are barred from asserting any defense against eviction including Retaliation and Discrimination unless the tenant paid all the rent. For any other defenses against eviction, the tenant must escrow all the rent in court while the eviction moves along. That makes sense.
Tenants are encouraged by the current MA eviction law to delay resolution of evictions as long as possible because there is no requirement to account for the rent.
TENANT ADVOCATES OLIVE BRANCH: We are open to a modification of the law to protect the landlord from financial hardship caused by delays or continuances, or to require tenant to put in escrow or otherwise account for ongoing new rent that accrues.
MASSACHUSETTS LANDLORDS ANSWER: This is great. It’s a step in the right direction. Let’s work together.
PROPOSED NEW LANGUAGE OF MGL 239, 8A. HERE IS THE NEW 239, 8A
Section 8A. “In any action under this chapter to recover possession of any premises rented or leased for dwelling purposes, brought pursuant to a notice to quit for nonpayment of rent, or where the tenancy has been terminated without fault of the tenant or occupant, the tenant or occupant shall be entitled to raise, by defense or counterclaim, any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law. The amounts which the tenant or occupant may claim hereunder shall include, but shall not be limited to, the difference between the agreed upon rent and the fair value of the use and occupation of the premises, and any amounts reasonably spent by the tenant or occupant pursuant to section one hundred and twenty-seven L of chapter one hundred and eleven and such other damages as may be authorized by any law having as its objective the regulation of residential premises.
Whenever any counterclaim or claim of defense under this section is based on any allegation concerning the condition of the premises or the services or equipment provided therein, the tenant or occupant shall not be entitled to relief under this section unless: (1) the owner or his agents, servants, or employees, or the person to whom the tenant or occupant customarily paid his rent knew were notified in writing of such conditions before the tenant or occupant was in arrears in his rent; (2) the plaintiff does not show that such conditions were caused by the tenant or occupant or any other person acting under his control; except that the defendant shall have the burden of proving that any violation appearing solely within that portion of the premises under his control and not by its nature reasonably attributable to any action or failure to act of the plaintiff was not so caused; (3) the premises are not situated in a hotel or motel, nor in a lodging house or rooming house wherein the occupant has maintained such occupancy for less than three consecutive months; and (4) the plaintiff does not show that the conditions complained of cannot be remedied without the premises being vacated; provided, however, that nothing in this clause shall be construed to deprive the tenant or occupant of relief under this section when the premises are temporarily vacated for purposes of removal or covering of paint, plaster, soil or other accessible materials containing dangerous levels of lead pursuant to section one hundred and ninety-seven of chapter one hundred and eleven and (5) the tenant deposited in escrow with the Health Board, Court or Attorney all withheld rent minus receipts or invoices excluding tenants’ or occupants’ own labor for the repair of any poor conditions and continue depositing in escrow all prospective rent as it becomes due for the duration of the court case and provides upon a written request by the landlord to the tenant at any time of this process the proof of the escrow.
Proof that the premises are in violation of the standard of fitness for human habitation established under the state sanitary code, the state building code, or any other ordinance, by-law, rule or regulation establishing such standards and that such conditions may endanger or materially impair the health, safety or well-being of a person occupying the premises shall create a presumption that conditions existed in the premises entitling the tenant or occupant to a counterclaim or defense under this section. Proof of written notice to the owner or his agents, servants, or employees, or to the person to whom the tenant or occupant customarily paid his rent, of an inspection of the premises, issued by the board of health, or in the city of Boston by the commissioner of housing inspection, or by any other agency having like powers of inspection relative to the condition of residential premises, shall create a presumption that on the date such notice was received, such person knew of the conditions revealed by such inspection and mentioned in such notice. A copy of an inspection report issued by any such agency, certified under the penalties of perjury by the official who inspected the premises, shall be admissible in evidence and shall be prima facie evidence of the facts stated therein.
There shall be no recovery of possession pursuant to this chapter pending final disposition of the plaintiff’s action if the court finds that the requirements of the second paragraph have been met. The court after hearing the case may require the tenant or occupant claiming under this section to pay to the clerk of the court the fair value of the use and occupation of the premises less the amount awarded the tenant or occupant for any claim under this section, or to make a deposit with the clerk of such amount or such installments thereof from time to time as the court may direct, for the occupation of the premises. In determining said fair value, the court shall consider any evidence relative to the effect of any conditions claimed upon the use and occupation of residential premises. Such funds may be expended for the repair of the premises by such persons as the court after a hearing may direct, including if appropriate a receiver appointed as provided in section one hundred and twenty-seven H of chapter one hundred and eleven. When all of the conditions found by the court have been corrected, the court shall direct that the balance of funds, if any, remaining with the clerk be paid to the landlord. Any tenant or occupant intending to invoke the provisions of this section may, after commencement of an action under this chapter by the landlord, voluntarily deposit with the clerk any amount for rent or for use and occupation which may be in dispute, and such payments shall be held by the clerk subject to the provisions of this paragraph.
There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section. If the amount found to be due the landlord exceeds the amount found to be due the tenant or occupant, there shall be no recovery of possession if the tenant or occupant, within one week after having received written notice from the court of the balance due, pays to the clerk the balance due the landlord, together with interest and costs of suit less any credit due the tenant or occupant for funds already paid by him to the clerk under this section. In such event, no judgment shall enter until after the expiration of the time for such payment and the tenant has failed to make such payment. Any such payment received by the clerk shall be held by him subject to the provisions of the preceding paragraph.
Any provision of any rental agreement purporting to waive the provisions of this section shall be deemed to be against public policy and void. The provisions of section two A and of section eighteen of chapter one hundred and eighty-six shall apply to any tenant or occupant who invokes the provisions of this section.”
By the way here is how mandatory rent escrow is currently done in FL, for example:
“83.60 Defenses to action for rent or possession; procedure
(2) In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, including, but not limited to, the defense of a defective 3-day notice, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent that accrues during the pendency of the proceeding, when due. The clerk shall notify the tenant of such requirement in the summons. Failure of the tenant to pay the rent into the registry of the court or to file a motion to determine the amount of rent to be paid into the registry within 5 days, excluding Saturdays, Sundays, and legal holidays, after the date of service of process constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon. If a motion to determine rent is filed, documentation in support of the allegation that the rent as alleged in the complaint is in error is required. Public housing tenants or tenants receiving rent subsidies are required to deposit only that portion of the full rent for which they are responsible pursuant to the federal, state, or local program in which they are participating.
History.—s. 2, ch. 73-330; s. 7, ch. 83-151; s. 7, ch. 87-195; s. 7, ch. 93-255; s. 7, ch. 94-170; s. 1374, ch. 95-147; s. 12, ch. 2013-136.
83.61 Disbursement of funds in registry of court; prompt final hearing.—When the tenant has deposited funds into the registry of the court in accordance with the provisions of s. 83.60(2) and the landlord is in actual danger of loss of the premises or other personal hardship resulting from the loss of rental income from the premises, the landlord may apply to the court for disbursement of all or part of the funds or for prompt final hearing. The court shall advance the cause on the calendar. The court, after preliminary hearing, may award all or any portion of the funds on deposit to the landlord or may proceed immediately to a final resolution of the cause.
History.—s. 2, ch. 73-330; s. 2, ch. 74-146.
So at least in FL no defenses or counterclaims are allowed if the rent is not paid or in escrow.
We have to fine-tune the current law to adopt Mandatory Rent Escrow in MA. It is really a win-win for all except the tenants who are calling the Health Board or filing Habitational Defense and Claims in bad faith and the attorneys who profit from these abuses of the system. Mandatory rent escrow is constitutional and fair and we all want to live in a society that has justice for all.
What’s amazing to me is that both Landlords and Tenant Advocates already agree that there should be Mandatory Rent Escrow when there are jury trials and we still don’t have it as the law. In other words, if both landlords and tenants have reached an agreement about this, why not get it out the Housing Committee and vote, make it the law? For more than 20 years this issue has been “studied” in Committees. It’s time to outlaw Retaliation of Tenants Against Landlords.