Great Barrington’s housing crisis presents an all-hands-on-deck, leave-no-stone-unturned moment. We have discussed in this space favorable tweaks to existing regulations that at best could marginally improve the housing situation (e.g., “Spread the Joy,” “Circular illogic“). It is now time for strides rather than baby steps.
There is an overdue legislative remedy that could substantially enhance supply, although at least a third of the state (renters) is likely to vehemently oppose this column. While I appreciate the following will not be well received by many, public discourse should not merely be an echo chamber of popular opinions. So, throwing caution to the wind, it is time now to discuss the elephant in the housing-undersupply room: the landlord-tenant eviction imbalance.
For very good reasons, the pendulum in the never ending landlord-tenant battle swung hard in favor of tenants during the pandemic by putting a moratorium on evictions and foreclosures (since ended), and by promulgating additional due process protections to enable tenants to remain housed. A good thing, at the time, but too much of a good thing isn’t. When potential landlords see their lease default enforcement powers wither and fear renting to overly empowered tenants, housing supply suffers. When landlords no longer face a level playing field, why would anyone want to get into the leasing game?
The question to consider now is whether the pendulum needs a reset to entice potential landlords to enter the housing market with existing homes or new construction. No one wants to evict a tenant, but landlords should at least have some hope of resorting to the remedy in the event that all else fails. As there isn’t much to be done about the demand side of the equation, we should consider how we can improve supply.
But don’t take my word for it. In September there was an unusual en banc opinion with multiple dissents from the Massachusetts Appeals Court. Let me share with you the concluding comments from Justice Joseph M. Ditkoff’s dissent:
“[Landlord] certainly wishes she had left the property vacant when she moved in with her boyfriend. In the (admittedly unlikely) event that she recovers possession, there is no chance she will ever rent it out again even if she subsequently vacates it. More important, our decision adds to the steady judicial drumbeat warning every small residential landowner that, whatever you, do not rent out your property. There are many reasons for the housing crisis in Massachusetts, but we would do well to acknowledge that our landlord-tenant jurisprudence is one of them.” (Emphasis in the original.)
The case of Ferreira v. Charland concerns a matter in which the landlord notified her tenant in July 2020 that she needed to move back into her home. When the tenant refused to vacate, in December 2020 the landlord commenced a three-day process to evict the tenant. That three-day “summary” process has now stretched to nearly three years and, at this rate, may continue for several more.
Massachusetts law requires that landlords install water-conservation devices in all dwellings prior to lease. In response to the landlord’s eviction proceedings, the tenant used the landlord’s failure to comply with the code to her advantage, defeating multiple eviction attempts. The tenant’s position, not unreasonably, was that she was damaged due to the lack of conservation devices in the dwelling, since she paid more for water usage and had higher sewer charges than she would have if the house had been code compliant. The twist in the case is that, once the tenant asserted the potential eviction defense, the landlord paid the tenant $3,615—twice the amount the tenant paid for water and sewer—to more than cover the tenant’s alleged water and sewer damages. Thus, the tenant was made whole. I suspect you already know how this turns out, but one would think the tenant’s damage claim, mooted by the landlord’s overpayment, would have permitted the landlord to reclaim possession of her home, right? Well, there is a disconnect between logic and Massachusetts landlord-tenant law, so the answer is “no,” as the majority opinion in the case explained:
“We conclude that a landlord’s violation of the water use statute gives the tenant a potential defense to possession [under the law]. We also conclude that a landlord’s tender of money damages to the tenant, after the landlord commenced summary process proceedings, does not moot the tenant’s claim to possession, unless the tenant has clearly released the claim, because money damages are but one of two available remedies – the other being the tenant’s ability to remain in the property (possession) upon proof of a valid [defense].”
We could call this the case of the shower head that thwarted a homeowner’s efforts to return home for at least three years. I believe in water conservation as much as the next environmentalist, but it is simply not reasonable (particularly where, as here, the tenant suffered no damage) that a homeowner cannot regain possession of her property but for a low-flow shower head. Landlords should not have to take a bath due to any such picayune defenses.
To be sure, this is not solely a Massachusetts issue. Depending on where your sympathies lie, there have been a number of amusing or horrifying landlord-tenant episodes nationally that illustrate tenant superiority. In Brentwood in September 2021, a tenant moved into a cottage on a property, living rent-free for one and a half years until this month. The tenant argued that the property was not up to code (sound familiar?), thereby preventing her eviction. The unit may not have been fully up to code, but the tenant seemed to have no problem living in a not-code-compliant cottage for more than two years. The landlord not only received no rent for 570 days, but he has now been sued by the tenant and has had to repair mold damage left by the tenant. So, you know, that could have gone better. As you might imagine, the landlord is taking the unit off the market, turning it into a game room.
You may have heard about the West Village “grifter” that moved into a room in the landlord’s apartment in June 2019 and was able to live rent free with her child and dog for more than three years. This was not the grifter’s first offense: It was the third West Village home she squatted. Once she checks in, she never checks out.
The simple tweak to the Massachusetts code proposed here would be to empower judges to make an equitable determination whether a de minimis defense should reasonably prevent eviction. Questions of damages, if any, could be determined following eviction, not used to prevent recapture of the premises. An amended code should shift the burden of proof onto the tenant, requiring the tenant to demonstrate why a shower head, for example, is grounds to keep a homeowner out on the street.
The case of the shower head illustrates that Massachusetts has summary proceedings in name but not reality. Untying judges’ hands will restore balance and sanity to the landlord-tenant battle, which—the point of all this column—should entice potential landlords back to the housing market. Otherwise, without these simple tweaks to Massachusetts law, who needs the headache of dealing with tenants?
