How to deal with nonpayment (partial or full)

As landlords, we must realistically and compassionately accept partial or zero rent from needy households who have lost jobs due to the coronavirus crisis. At the same time, we must do as much as possible to get rent paid, in part or in full, by those who can afford to pay it. 

This goal requires assessing each household’s financial situation. The government cannot do it. The most realistic way is for individual landlords to talk with their tenants as payment issues arise, come to a tentative agreement, and require documentation of actual need within 30 days, if the landlord wants it. 

Massachusetts procedures

The Massachusetts eviction moratorium allows exactly this local approach. If you want to be more formal with your tenants, the Governor’s Executive Office of Housing and Economic Development has developed guidelines and forms (see links below) for landlords and tenants can use to document a tenant household’s financial situation that would justify nonpayment in part or in full. 

The financial hardship document must be filled in within 30 days after the first of the month in which the tenant fails to pay full or partial rent. It must be completed for each month of nonpayment, since financial circumstances change.

Here are the links for Massachusetts landlords and tenants to use:

https://www.mass.gov/doc/form-of-notice-and-documentation-covid-19-hardship-residential-tenant/download

https://www.mass.gov/doc/dhcd-guidance-and-form-instructions-for-tenants-eviction-moratorium/download

If tenants fail to document their income or fail to pay what they can afford to pay based on documentation, they should be evictable quickly once the coronavirus crisis ends. You can also report their nonpayment to a credit agency, but not if their nonpayment is due to financial hardship directly or indirectly from the coronavirus crisis. No late fees may be charged during this time.

A possible strategy

The Massachusetts eviction moratorium law (and almost certainly all eviction moratoriums across the country) prohibits any action that is part of the eviction process. In particular, one cannot terminate a tenancy. What is likely legal  is for a landlord and tenant to mutually agree voluntarily  to terminate a tenancy and begin a new tenancy at a new rent level, presumably a lower rent level consistent with the tenant’s current financial situation. We suggest changing year-long leases to month-to-month tenancy-at-will (TAW) agreements so that rents can be adjusted month by month, if necessary.  An existing lease agreement needs to be terminated by both parties signing a mutual agreement, (including a statement that the new agreement is entered entirely voluntarily by both parties), and replacing it with a standard TAW agreement available online. 

Be sure your agreement clearly states that landlord and tenant are voluntarily and mutually agreeing to the termination of any preceding tenancy agreement.

We suggest this approach ONLY for the duration of a true health crisis from the coronavirus.

TAW agreements:

legaltemplates.net/legal-documents-forms/#real-estate

eforms.com/rental/ma/massachusetts-month-to-month-rental-agreement-form

https://ipropertymanagement.com/templates/month-to-month-rental-agreement

Unfortunately…

Despite the forms above for Massachusetts or any equivalent forms in other states, a substantial amount of nonpayment must be expected. Nothing stops a tenant from lying about household income or omitting some sources of income on a form – and how can a landlord realistically discover those undeclared sources? Moreover, as happens often in Massachusetts and probably all over the country, when tenants have not paid rent for as long as they are able before being evicted, they just move out, leave no forwarding address, and even if a landlord can scout out their new location, no practical way exists to force them to pay the rent they owe. That is why eviction is called “summary process.” The word “summary” meaning rapid; as in the expression “Off with his head!” The government recognizes the need for speedy eviction of people who are living in someone else’s property without paying the agreed-upon rent.

Bottom line: The unpaid is lost forever, and ability to maintain rental housing for tenants is compromised. In the worst situations, landlords unable to repair or evict or pay property taxes, insurance, etc. just walk away and abandon their properties. That leaves tenants on their own to maintain the property when they have scant financial resources. Or they are forced to leave as a building becomes uninhabitable and seek new housing that will be higher in rent that they can no longer afford. Or move back in with relatives.

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