March 2, 2021

Volume XI, Number 61


March 02, 2021

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March 01, 2021

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COVID-19 Evictions and Foreclosures Update: Massachusetts – 9/8/2020

The state moratorium on residential evictions, certain residential foreclosures, and certain commercial evictions (Chapter 65 of the Acts of 2020) remains in effect through October 17, 2020. Landlords challenging that moratorium in Superior Court were recently denied a request to stay enforcement. The court’s decision, issued on August 26, 2020, is linked here. Arguments regarding similar relief sought in a parallel federal case were heard last week. Legislation to extend foreclosure protections and a residential (not commercial) eviction moratorium beyond October 17 has been introduced in both State House chambers, but has not yet passed in the extended session. Governor Baker can also extend the moratorium under Chapter 65.

Should the state moratorium be invalidated, a recent order issued by the Centers for Disease Control and Prevention (CDC), published last week in the Federal Register (link here) would apply to residential landlords in Massachusetts. The CDC order does not apply to commercial properties and has a narrower scope than the now-expired CARES Act, in that it explicitly carves out foreclosure and makes no mention of federally-backed loans. The CDC order is in effect until December 31, 2020.

The CDC order probably does not currently apply in Massachusetts because it “does not apply in any State [. . .] with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.” Unlike the CDC order, Chapter 65 does not require a tenant to exhaust all sources of funding or make best efforts to pay rent before seeking protection. Chapter 65 provides more protection by not requiring a demonstration of hardship, except to avoid outcomes such as reporting nonpayment to credit agencies. Chapter 65 is also more comprehensive by limiting legal eviction to specific causes, and assigning the eviction determination to designated officials such as courts and sheriffs’ offices. By contrast, the CDC order places the onus on landlords to comply, and includes criminal liability for noncompliance and the possibility of jail time if an eviction results in a death.

Court challenges to the CDC order can be expected given its national scope. Protections for commercial tenants remain in effect in Massachusetts, but will expire next month if the governor takes no further action. Protections from residential foreclosure in Massachusetts will expire next month as well unless extended or replaced with new legislation. Protections for residential tenants will continue to exist in some form until at least the end of the year unless invalidated before then by court order.    

©2020 Pierce Atwood LLP. All rights reserved.National Law Review, Volume X, Number 252



About this Author

Dan Bailey environmental, land use, real estate, and municipal law.

Dan Bailey has more than 30 years of experience in environmental, land use, real estate, and municipal law. He prides himself on offering pragmatic solutions to complicated legal matters. While Dan’s “sweet spot” is the redevelopment of commercial property, he has a strong background in all aspects of environmental and regulatory law. Dan also handles all types of real estate transactions.  

Dan has helped facilitate development of a wide range of commercial real estate projects, ranging from mixed use (retail, office, and housing), multifamily housing, athletic facilities, marinas...

Paula M. Devereaux Partner Boston Commercial Real Estate Law Real Estate Land Use Environmental

Paula Devereaux is an experienced commercial real estate and land use attorney, focusing her practice on development, zoning, permitting, planning, and environmental regulatory compliance. Paula serves as real estate counsel for a number of clients in the Greater Boston area, ranging from smaller organizations to large corporations, medical centers, retailers, and real estate firms. She regularly advises clients on Boston permitting matters, waterfront development issues, and in sales, acquisitions, and financings.

Paula is active in the real estate community, serving in leadership...

Gareth Orsmond Partner  real estate, land use, environmental and municipal law, real estate financing, affordable housing

Gareth Orsmond is a real estate lawyer with expertise in land use, environmental and municipal law, real estate financing, affordable housing, and large-scale development. Gareth’s practice encompasses commercial transactions, permitting, resolving property disputes, providing general counsel on a wide range of subjects, and litigating matters in administrative tribunals and court.

For more than 20 years, Gareth has represented diverse clientele, including developers, non-profit organizations, and governmental agencies. He has handled hundreds of hearings and meetings with...

Donald R. Pinto, Jr., Pierce Atwood, litigation lawyer

Don Pinto has more than 30 years of experience as a civil litigator, with a focus on complex real estate and land use disputes. He handles cases at the trial and appellate levels in the state and federal courts and before administrative agencies. Outside the courtroom Don has successfully resolved many disputes through negotiation, mediation, and arbitration.

Don is also the founder, editor, and one of several contributors to Massachusetts Dirt and Development Law, the firm's real estate blog.


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Joel Quick Real Estate Attorney Pierce Atwood

Joel Quick focuses his practice on land use and real estate law, providing a full array of legal services for any commercial or residential development project, including analyzing land use and local environmental regulations and appearing before public bodies to seek needed relief. Joel also negotiates and drafts any restrictions, easements, and covenants required by a municipality as a condition of approval, and, if needed, will seek amendment of affordability, conservation, and preservation restrictions. With experience acting as counsel for a number of municipalities and municipal...