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Update on Massachusetts Eviction Moratorium Due to COVID-19
Print PDFEOHED Issues Emergency Regulations, Forms, and Guidance
On April 27, 2020, the Commonwealth’s Executive Office of Housing and Economic Development (“EOHED”) issued emergency regulations, forms, and guidance in connection with Chapter 65 of the Acts of 2020, An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency (the “Act”). These materials include forms for certain notices permitted by the Act addressing missed rent payments and the use of advance rent payments, as well as other clarifications to the Act that landlords and residential and small business tenants will need to keep in mind during the moratorium period.
Notices by Tenants to Landlords Regarding Financial Impact of COVID-19
Under the Act and EOHED regulations, landlords of residential dwelling units and small business premises units may not impose late fees for non-payment of rent or notify a credit reporting agency of the non-payment of rent if the tenant provides a notice and documentation to the landlord within 30 days of the missed payment that the non-payment of rent was due to a financial impact from COVID-19.
The EOHED regulations have now defined “financial impact from COVID-19” as a loss of income or additional expense that (i) is caused directly or indirectly by the COVID-19 pandemic or by the local, state, or federal response to the pandemic, and (ii) is of a magnitude that makes it impossible or impractical for a tenant to make a payment of rent on the date that such payment is due.
EOHED has provided forms of notice for both residential tenants and tenants of small business premises units for this purpose. Links to both forms of notice are below:
- Residential Tenant Notice for Financial Impact from COVID-19
- Small Business Tenant Notice for Financial Impact from COVID-19
For small business tenants, EOHED has also published a financial worksheet that should be completed and attached to the notice. A link to the worksheet can be found here.
Residential and small business tenants who have missed multiple rent payments due to a financial impact from COVID-19 must send a separate notice for each missed rent payment in accordance with the notice provisions of the lease or the parties’ prior customs and practices. If no notice provisions exist, if there is no written lease between the parties, or if the landlord has communicated with the tenant by email, then the tenant may send the notice to the address for rent payment or by email to the landlord. If the landlord uses a property manager or other third-party agent, a tenant may send the notice to that party in lieu of sending the notice directly to the landlord.
Notices by Landlords to Residential and Small Business Tenants for Use of Advance Rent Payments
Under the Act and EOHED regulations, a landlord who collected last month’s rent in advance can utilize such funds for certain expenses related to the leased property, including mortgage payments, utilities, repairs, and other expenses so long as the landlord does not deduct any amount owed by a tenant for its non-payment of rent. If a landlord chooses to use such funds, a landlord must provide notice to the tenant stating that (i) such funds were used in accordance with the Act, (ii) the landlord remains obligated to credit the tenant for paying the last month’s rent, and (iii) the tenant is entitled to be credited for the same amount of interest that would have accrued on the last month’s rent had the landlord not used such funds prior to the last month of the tenancy.
EOHED has published the form of notice for this purpose:
The notice must be sent within five business days of the date that the landlord utilizes the advance rent payment in accordance with the notice provisions of the lease or the parties’ prior customs and practices. If no notice provisions exist, then the landlord may send the notice to the leased premises or by email to the tenant.
For calculating the interest that would have been due to the tenant under the Act had the landlord not used the advance rent payment, if the landlord is unable to determine the interest rate with certainty, then the landlord shall use the greater of (i) the rate of interest received from the bank where the deposit has been held for the month immediately preceding the landlord’s utilization of such funds, or (ii) the rate of interest received by the landlord during the last month of the tenancy from the bank where the landlord maintains the tenant’s security deposit.
Notices by Landlords to Residential Tenants for Non-Payment of Rent
During the moratorium period, the EOHED regulations recommend that landlords of residential properties send a written notice of each missed rent payment to their tenants. If a landlord sends such a notice, the notice must include the following language prominently displayed on the first page:
“THIS IS NOT A NOTICE TO QUIT. YOU ARE NOT BEING EVICTED, AND YOU DO NOT HAVE TO LEAVE YOUR HOME. An emergency law temporarily protects tenants from eviction during the COVID-19 emergency. The purpose of this notice is to make sure you understand the amount of rent you owe to your landlord.”
“For information about resources that may help you pay your rent, you can contact your regional Housing Consumer Education Center. For a list of agencies, see https://www.masshousinginfo.org/regional-agencies. Additional information about resources for tenants is available at https://www.mhp.net/news/2020/resources-for-tenants-during-covid-19-pandemic.”
“You will not be subject to late fees or a negative report to a credit bureau if you certify to your landlord in writing within 30 days from the missed payment that your non-payment of rent is due to a financial impact from COVID-19. If possible, you should use the approved form at: https://www.mass.gov/lists/moratorium-on-evictions-and-foreclosures-forms-and-other-resources. If you cannot access the form on this website, you can ask your landlord to provide the form to you. You may also send a letter or email so long as it contains a detailed explanation of your household loss in income or increase in expenses due to COVID-19.”
The notice may also include the total balance due under the lease, the remaining term of the lease, the landlord’s contact information, and a reminder that the tenant could face eviction after the COVID-19 state of emergency ends if rent remains unpaid. If the landlord is aware that a residential tenant is not proficient in English, the landlord should use reasonable efforts to deliver such a notice in the tenant’s native language.
Nutter previously covered these developments in our advisory Massachusetts Enacts Temporary Moratorium on Evictions and Foreclosures Amid COVID-19 Pandemic.
This advisory was prepared by Marianne Ajemian, Matt Gaughan, David Libardoni, and Beth Mitchell in Nutter’s Real Estate Department. For more information, please contact Marianne, Matt, David, Beth, or your Nutter attorney at 617.439.2000.
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.
