A bill before the legislature would bring the eviction moratorium roaring back to Massachusetts and overturn the needed Davis v. Comerford case law.
“An Act to prevent COVID-19 evictions and foreclosures and promote an equitable housing recovery,” (HD3030) would target small landlords, shut off the courts, delete use and occupancy payments and impose just–cause eviction rent control.
But if state officials enforced existing law, none of this nonsense would be necessary.
Mass. Has Strong Housing Stability
The Census Household Pulse Survey asked renters in March how confident they were in being able to pay April rent. Twenty–seven percent of Massachusetts renters were not confident, the lowest percentage of any state except for Vermont. With all due respect to Vermont, where housing costs are not as high, our COVID-19 housing safety net in Massachusetts may be the best in the nation.
The program Residential Assistance for Families in Transition (RAFT) has, in less than a year, ramped up to be the preeminent (and movingly named) housing stabilization service of the pandemic. So far it has generously covered over $50 million in rent arrears and going forward stipends. Thanks to federal largess, it is expected to cover $1 billion over the next year, the entirety of pandemic housing, up to 15 months per impacted household.
RAFT is not perfect. Too many applications are being rejected (57 percent). Too few know about it. The courts are needed to push people to apply. The staff who administer it toil in obscurity. But RAFT is being improved daily.
One Understandable Misstep
Landlords in court are rumored to be refusing RAFT. We understand how this started, but it should not be the case any longer. RAFT is usually mandatory under the state’s ban on discriminating against renters by source of income.
We rang the bell on this back in October. When the Baker administration unveiled the Eviction Diversion Initiative, by which RAFT would be hugely expanded, the program came with a string attached: landlords had to waive claims for six months or until June 2021. To sell it, the administration described RAFT as optional. But RAFT was always going to be mandatory under state law. The string attached disinclined landlords to take it, as without the assurance of going-forward rent stipends it seemed to amount to an uncompensated taking.
We wrote to the office of Lt. Gov. Karyn Polito, who connected us with the Department of Housing and Community Development’s (DHCD) general counsel. We wrote to the Massachusetts Commission Against Discrimination. On Jan. 11, DHCD issued new guidance removing the string. Now there was no reason in law or moral principle for a landlord to refuse RAFT. Furthermore, Attorney General Maura Healey issued a “Know your Rights” FAQ in January saying that refusal to accept RAFT may be discriminatory.
The barn door is now closed, but the horse is long gone. It seems that many landlords have refused RAFT, and this has been the motivation for HD3030.
When is RAFT Mandatory?
To understand how our discrimination protections work in Massachusetts, consider Section 8, which promises that a tenant will pay no more than one-third of their income to rent (more or less). A landlord may not want to participate in Section 8, which requires an inspection. But such inspections and all other program requirements are mandatory. Even though it may cost an owner in terms of days and dollars, the regulations tied to the program do not amount to an uncompensated taking.
Under the program a landlord is not forced to lower their asking rent such that their apartment would fall under the Section 8 fair market rent standard. Such a cram-down would be an uncompensated taking, unlawful under other case law and our state and federal constitutions. If the asking rent is fully paid, a landlord cannot refuse to participate.
RAFT as it stands today is the same. Consider, for example, a landlord who took their renter to court for nonpayment. If RAFT would fully cover arrears and provide adequate going forward assistance, such that future rent is also expected to be paid in full for at least some time, why should anyone refuse? RAFT solves the nonpayment crisis, at least for now. In this case, the discrimination protections apply. To be clear: It is our opinion that a landlord refusing to take RAFT in this scenario would be in violation of MGL Chapter 151B Sec. 4.
Enforce Existing Law
We need the Baker administration to enforce RAFT in two ways.
First, we need the regional program administrators to delete waiver clauses predating the January 11 policy change. The old string attached is only spooking landlords and bouncing renters out of the safety net.
Second, we need the Massachusetts Commission Against Discrimination and the state attorney general to make it clear to owners that in many cases RAFT is fully compulsory.
We would welcome this enforcement, because it would deflect the awful unfairness of HD3030. The safety net is working, and everyone who can must hold it up.
Doug Quattrochi is executive director of MassLandlords Inc.