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A Rare Exception to the Massachusetts Eviction Moratorium Law

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As mentioned in an earlier L&W blog, on April 20, 2020 the Massachusetts Governor signed into law 191-H.4647, “An Act providing for a moratorium on evictions and foreclosures during the COVID-19 Emergency.” St. 2020, c. 65 (“Massachusetts Eviction Moratorium Law”). This eviction moratorium helped tenants and furthered the public’s interest in limiting the spread of COVID-19. But, it has also been very problematic for landlords. Most landlords depend on the receipt of rent from tenants in order to pay the mortgage and continue regular upkeep and maintenance. Since many tenants stopped paying their rent in the wake of the pandemic and the eviction moratorium, many landlords have defaulted on their mortgages causing their properties to go into foreclosure. 

While state and federal eviction moratoria ban evictions due to non-payment of rent, state legislatures and the federal government were careful to carve out narrow exceptions to the ban on evictions. For instance, the Massachusetts Eviction Moratorium Law defines a “non-essential eviction,” and stops only non-essential evictions. Non-essential evictions include evictions due to nonpayment of rent, foreclosure, and no fault/no cause. Essential evictions, which are not banned by the Massachusetts Eviction Moratorium Law, include evictions for cause due to the tenant’s criminal activity that impairs health and safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property, or the general public (“others”) or lease violations that may impact the health or safety of “others.” 

In a rare case, a Massachusetts Superior Court recently recognized an exception to the federal and state eviction moratoria in an eviction case that I filed on behalf of a landlord client. Unbeknownst to the landlord, the tenant was engaged in a clandestine operation involving the manufacture, storage, and distribution of various controlled substances on the rental premises. A federal criminal complaint was filed against the tenant, who used various aliases and nicknames to conceal his true identity, charging the tenant with engaging in a conspiracy to possess and distribute fentanyl, heroin, and cocaine. A search warrant was executed by federal agents with the cooperation of the landlord, at which time the agents discovered and seized numerous controlled substances, as well as equipment, tools, supplies, and other materials used to cut, mix, press, package, and store the drugs. The landlord learned about the tenant’s criminal conduct at the time of the search warrant. The tenant was arrested and detained in federal custody at a state correctional facility and subsequently indicted on federal drug trafficking charges by a grand jury. 

I promptly sent notice to the tenant, on behalf of the landlord, of the termination of his tenancy for cause under M.G.L. c. 139, § 19, which provides a landlord with the right to declare a lease or tenancy void where the tenant commits a specified crime or nuisance on the rental premises, including the manufacture or keeping of controlled substances on the premises. On behalf of the landlord, I filed a lawsuit in Suffolk Superior Court under the same statute, which also provides landlords with an expedited eviction procedure including the award of equitable relief, seeking to evict the tenant for cause. Together with the complaint, I filed a motion for preliminary injunction seeking the immediate right of entry to the property and to change the locks, judgment for possession, and other relief. 

After hearing, Judge Robert N. Tochka granted my motion for preliminary injunction. In doing so, the court found that the landlord had more than a reasonable likelihood of success in proving the existence of cause to terminate the tenancy due to the evidence offered by the landlord showing that the tenant was involved in a drug trafficking conspiracy including the manufacture and storage of various controlled substances on the premises. Given that fentanyl, heroin, and cocaine are dangerous drugs that carry a significant risk of death, overdose, and addiction, the court further held that the federal and state eviction moratoria did not prohibit the eviction of the tenant as the tenant’s criminal conduct on the rental premises had the capacity to impair the health, safety, and welfare of others. While this is a rare case, it demonstrates that the courts are willing to grant the extraordinary eviction remedies under M.G.L. c. 139, § 19, notwithstanding the federal and state eviction moratoria.

At Lawson & Weitzen, LLP, we take great pride in our ability to provide timely and effective counsel to our clients. Our attorneys regularly handle various real estate matters, for both residential and commercial landlords and tenants. Contact us if you need representation.