Real Estate Management Advisory: New Federal Moratorium on Residential Nonpayment Evictions

On September 1, 2020, the Centers for Disease Control and Prevention announced a new nationwide federal moratorium on residential evictions for nonpayment of rent, effective September 4, 2020, through December 31, 2020 (the “federal moratorium”). 

At present, the federal moratorium is inapplicable to your management of your property.  This is because the federal moratorium does not apply in states like Massachusetts that have existing moratoriums in place which provide residential tenants with the same or greater level of public health protection from eviction.  The Massachusetts moratorium provides residential tenants with greater public health protection than the federal moratorium by, for example, prohibiting every type of eviction case except ones that involve conduct that impacts the “health or safety” of others.  Thus, the federal moratorium will not immediately apply in Massachusetts when it takes effect on September 4, 2020. 

However, if Governor Baker does not extend the Massachusetts moratorium and it expires on October 17, 2020 and the Massachusetts legislature does not pass a new moratorium law, then the federal moratorium will apply here in Massachusetts.  We have thoroughly reviewed the federal moratorium and determined that, if it takes effect in Massachusetts, this is what you need to know:

• It only protects residential tenants so you can evict commercial tenants for any reason.

• It only applies to residential nonpayment of rent cases and, thus, it will not prevent you from proceeding on any cause cases or no fault cases (terminations of tenancies at will or expired leases and tenants hold over).

• It only protects residential tenants from nonpayment of rent evictions if – and only if – the tenant provides you with an affidavit attesting to all of the following under penalty of perjury:

  • the tenant is unable to pay the full rent owed due to a COVID-19 related financial hardship (i.e., unemployment and/or decrease in hours/wages);

  • the tenant qualified for a CARES Act stimulus check or does not “expect” to earn more than $99,000.00 in 2020 (or more than $198,000.00 if filing jointly) or had no obligation to report any income in 2019;

  • the tenant has used “best efforts” to obtain all available government rent/housing assistance; and

  • the tenant is likely to become homeless (i.e., on the street and not moving in with a friend or family member) if evicted.

• Unless and until that information is provided, the tenant does not have any protection under the federal moratorium.

• It does not prohibit you from doing anything other than physically removing a tenant from a residential property for nonpayment of rent by levying on an execution that we obtained in a nonpayment of rent case.

• Therefore, the federal moratorium does not prohibit any of the other steps in eviction cases in Massachusetts: i.e., serving notices to quit, filing and serving summary process summonses and complaints, reaching agreements for judgments in Court with tenants, otherwise obtaining judgments for possession and requesting that the Court schedule hearings when tenants violate agreements.  To reiterate, it only prohibits you from levying on an execution to move out a residential tenant for nonpayment, but only if the residential tenant had submitted a written declaration in compliance with the above. 

This is just a summary of the major provisions of the federal moratorium to help you navigate it if it takes effect in Massachusetts.  If the federal moratorium takes effect, you should discuss your case with us to ensure a successful result.  The applicability of, not only the federal moratorium, but also the Massachusetts moratorium depends entirely on the facts and circumstances of your case.  Thus, please do not hesitate to contact our firm to discuss any questions or concerns that you have. 

As always, please feel free to call or email any member of the Krems, Jackowitz & Carman, LLP Real Estate Management Team with any questions.

Kenneth A. Krems-David R. Jackowitz-Scott D. Carman

Krems, Jackowitz & Carman, LLP

141 Tremont Street, Boston, MA 02111

Telephone: (617) 556-0244 KKrems@kjcllp.com; www.kjcllp.com