On April 20, 2020, Governor Charlie Baker signed into law House Bill 4647, establishing a moratorium on certain evictions and foreclosures during the COVID-19 Emergency. The Governor had declared the emergency on March 10, 2020. Below are answers to frequently asked questions on the moratorium.
Tenants occupying residential properties or “small business premises units,” and borrowers that own “residential property.”
During the moratorium, landlords cannot evict tenants renting residential properties or “small business premises units,” except in very limited circumstances, and mortgage lenders cannot foreclose on mortgages secured by “residential property.” How long is the moratorium in effect?
The moratorium took effect on April 20, 2020, when Governor Baker signed it into law. The moratorium remains in effect until the first to occur of (i) 120 days after its effective date, or (ii) 45 days after the COVID-19 Emergency declaration is lifted. However, the Governor can extend the moratorium in 90-day increments, but not longer than 45 days after the COVID-19 Emergency declaration is lifted.
Only if the commercial tenant occupies a “small business premises unit,” which is a specifically defined term under the law. Landlords still have the same eviction rights as before, for all other commercial tenants. What is a “small business premises unit” under the moratorium?
A “small business residential unit” is leased premises occupied by a tenant for commercial purposes, whether for-profit or not-for-profit; excluding leased premises where the tenant or the tenant’s affiliate (i) operates multi-state or multi-nationally, (ii) is publicly traded, or (iii) has 150 or more full-time employees.
A “residential property” is defined as property with a dwelling house for 4 or fewer separate households and occupied, in whole or in part, by the borrower as a principal residence. Residential properties do not include investment properties, second homes, vacation homes, and property mortgaged as collateral for a commercial loan.
Does the moratorium prohibit all evictions involving residential property and “small business premises units”?
No, but it prohibits almost all evictions. The moratorium prohibits “non-essential evictions,” which are defined as evictions (i) for non-payment of rent, (ii) resulting from foreclosure, (iii) for no fault or no cause, or (iv) for cause that does not involve or include criminal activity or lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public. “Non-essential evictions” do not include evictions involving small business premises units because of the expiration of the lease term of or a tenant default that occurred before the declaration of the COVID-19 emergency.
During the moratorium, landlords may not, for the purposes of a non-essential eviction, terminate a residential tenancy or send any notice, including a notice to quit, requesting or demanding that a residential tenant vacate the premises. This restriction does not apply to commercial tenancies, including tenancies of small business premises units.
Yes. During the moratorium, courts that handle eviction cases may not, in a non-essential eviction, (i) accept for filing any writ, summons or complaint; (ii) enter a judgment or default judgment evicting a tenant; (iii) issue an execution for possession; (iv) deny a tenant’s request for a stay of execution, or a continuance of a summary process case; or (v) schedule a court event, including an eviction trial. This restriction applies to eviction actions involving both residential properties and small business premises units.
All deadlines and time periods are “tolled” during the moratorium. This means that relevant time periods are suspended during the moratorium, and do not begin to run until after the moratorium is over.
No, not until the moratorium expires.
During the moratorium, landlords cannot collect late fees from tenants, or report tenants to consumer reporting agencies, if within 30 days after the rent due date the tenant provides the landlord with notice and documentation that the non-payment of rent was due to a financial impact from COVID-19.
No. The moratorium does not relieve tenants from their obligations to pay rent, or restrict landlords’ ability to recover rent. It only prevents landlords from evicting tenants protected by the moratorium. Landlords may still sue tenants for unpaid rent, without seeking to evict them.
The moratorium law is silent on security deposits. It does not specifically allow landlords to apply, or prohibit landlords from applying, security deposits to unpaid rent. However, the law offers a small benefit to landlord’s regarding last month’s rent payments. Landlords may use last month’s rent payments to pay for expenses, including mortgage payments, utilities, repairs and required upkeep, but landlords may not use last month’s rent in advance to pay tenants’ unpaid rent.
When landlords use last month’s rent early, they must notify tenants in writing that (i) the landlord utilized such funds before the last month of the tenancy, (ii) the landlord remains obligated to apply said rent in advance to its intended application as rent for the last month of tenancy, and (iii) the tenant is entitled to the same amount of interest from the landlord on the last month’s rent, as required by statute if the landlord had not utilized such funds before the last month of the tenancy.
Foreclosure activities on “residential properties” are prohibited during the moratorium. For these purposes, “residential properties” are, generally speaking, one- to four-family dwellings that the borrower occupies as his or her primary residence, and which are not collateral for a commercial loan. During the moratorium, mortgage lenders may not, with respect to “residential properties” (i) publish a notice of a foreclosure sale, (ii) exercise a power of sale, (iii) exercise a right of entry, (iv) initiate a judicial or non-judicial foreclosure process, or (v) file a complaint to determine the military status of a borrower under the federal Servicemembers Civil Relief Act.
Yes. Mortgage lenders must grant a forbearance for residential properties when borrowers submit requests affirming that they have experienced a financial impact from COVID-19. The forbearance shall be for not more than 180 days. Payments subject to the forbearance shall be added to the end of the term of the loan unless otherwise agreed to by the borrower and lender. Borrowers and lenders may still enter alternative payment agreements for payments subject to the forbearance. Lenders may not furnish negative mortgage payment information to a consumer reporting agency related to mortgage payments subject to forbearance arrangements.
No. If there is a forbearance arrangement, the lender may not charge fees, penalties or interest beyond the amounts scheduled and calculated as if the borrower had made all contractual payments on time.
The law does not require lenders to grant forbearances to borrowers for residential properties after the moratorium expires.
No. The moratorium does not relieve borrowers from their obligations to make mortgage payments. Nor does it restrict lenders’ rights to recover mortgage payments from borrowers. The moratorium only prohibits lenders from foreclosing on protected residential properties.
Yes. The Massachusetts Executive Office of Housing and Economic Development is required to issue emergency regulations necessary to implement sections of the law dealing with evictions and landlords’ use of last month’s rent. No regulations have been issued as of April 22, 2020.
Additional information on the moratorium law is available online at the Massachusetts legislature’s website: https://malegislature.gov/Bills/191/H4647, or by contacting the author at cvaccaro@dfllp.com.
Copyright © 2020 by Christopher R. Vaccaro
UPDATE: March 29, 2020 Suffolk ROD
As of Saturday, March 28, 2020, as the result of a COVID-19 exposure at the Edward Brooke Courthouse, the entire facility is now closed to both the public and all courthouse employees.
The Suffolk Registry of Deeds staff cannot access the facility and, therefore, cannot record either recorded land or registered land mail sent in by Fed Ex, UPS or the U.S. Mail.
From Monday, March 30 to Friday, April 3, the only recording that will occur is the electronic recording of recorded land documents – which will be recorded by staff remotely from home.
From Monday, March 30 to Friday, April 3, please do not send any mail to the Registry since there is no one present to retrieve, accept or sign for it.
As of today, in accordance with Massachusetts Supreme Judicial Court Standing Order OE-144, the Suffolk Registry of Deeds plans on reopening to the public and resuming normal operations on Monday, April 6, 2020.
Regarding the reopening, there will be more information to follow at the end of this week.
If you have questions regarding Registry operations and recorded land you can contact Thomas Ryan at (781) 801-4605. If you have questions regarding registered land you can contact Laura O’Brien at (617) 930-6217.
Understand that the above two employees cannot gain access to the Registry, cannot record mail and are not available to perform research on your behalf.
Title examination and research remains available electronically on masslandrecords.com/Suffolk The situation is fluid and subject to change, check this website for the latest information.
Thank You
As a result of the outbreak of the novel coronavirus (COVID-19), Governor Baker has issued an executive order allowing smoke detector and carbon monoxide alarm certificate inspections as required under Sections 26F and 26F½ of Chapter 148 of the General Laws to be deferred so long as:
Click here for a copy of the executive order
Our highest priority at Dalton & Finegold is the health and safety of our clients and staff. We are also committed to doing our part to prevent the spread of COVID-19 in our community.
The following is a summary of our new policies and procedures, effective today. We will be updating these policies as circumstances evolve. Please don’t hesitate to contact us with any questions or concerns.
Your Attorney is available to you at any time, as are the following staff members: