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With a 270-day waiting period, the law goes into effect in May of 2025. There are different court record sealing procedures for different types of eviction cases, outlined below, and the housing and district courts will need to create new forms under this law.
No Fault Cases
No-fault cases are defined as evictions when a landlord terminates a tenancy at will or after a lease expires where no unpaid rent or material violation of a lease provision is claimed by the landlord. No fault cases also include an “action brought after termination of a tenancy for economic, business or other reasons not constituting a violation of the terms of the tenancy.” This situation would typically involve a decision by the landlord to sell the leased property.
In a no-fault case, a tenant may file a petition to seal the eviction record, with notice provided to the landlord. If no objection is filed within seven days of filing the petition, the housing or district court will approve the petition administratively without a hearing. It will be interesting to see how the courts verify whether the landlord has been properly notified, if at all. My sense is that enforcement here will be quite lax.
Non-Payment of Rent Cases
Eviction sealing is available in non-payment of rent cases where a tenant has a clean eviction record for the last four years. The tenant must certify that the nonpayment of rent was due to economic hardship which rendered them unable to satisfy the judgment. Notice of record sealing must be provided to the landlord, and an objection must be filed within seven days of the petition filing. If no objection is made, the court will presumptively order sealing of the record. If an objection is filed, the court must conduct a hearing to determine whether the nonpayment is due to economic hardship and may require the tenant to file a financial statement.
In cases where the tenant has paid up under a payment agreement or judgment, landlords are obligated to file with the court a satisfaction of judgment within 14 days of full payment. If the landlord doesn’t file the satisfaction, the tenant may petition for the entry of a satisfaction of judgment. Upon entry of the satisfaction, a tenant may petition immediately for sealing of the court record under the process above.
At Fault/For Cause Cases
In so-called at-fault and for cause cases (including nuisance/drug/criminal cases brought under Chapter 139, §19), a tenant may petition for court record sealing if he or she has a clean eviction record for seven years. At-fault/for cause cases typically involve serious violations of a lease or tenancy, such as drug or criminal activity, excessive noise, smoking, housekeeping, and behavioral problems. The filing procedure is the same as described above, with at fault/for cause cases presumptively approved where the landlord does not file an objection within seven days of the petition filing. However, for Chapter 139, §19 cases, a court hearing is required to determine whether the tenant has been charged with any crimes and sealing is in the interests of justice and public safety.
Dismissed Cases/Judgments in Favor of Tenant
In cases which have been dismissed or where the tenant wins and receives a judgment in their favor, the tenant may file a petition to seal the court record immediately without any notice to the landlord. These petitions will be administratively granted without a hearing.
I’ve flagged this provision as problematic because non-payment cases are often dismissed if a tenant moves out voluntarily, or shortly after a payment plan is completed or if the case is old. Tenants may be able to use this loophole to get cases sealed even if they do not presumptively qualify are able to skirt the four- or seven-year waiting period.
Credit Reporting Agencies
In a far-reaching provision, consumer reporting agencies will need to comply with very strict limitations on using sealed (and un-sealed) eviction records in consumer credit reports. Credit agencies cannot disclose sealed records “unless the court record was available for inspection with the court within 30 days of the report date.” This provision is unclear and confusing, but I think the intended policy is that sealed records should not be available on credit reports. Credit agencies must remove from a credit report any information related to a sealed eviction court record within 30 days of sealing. (I’m not sure how agencies are going to monitor this). But the bill goes even further, requiring credit agencies, who collect non-sealed eviction court records, to list the exact type of eviction action on the credit report (i.e., no-fault, nonpayment, or for cause). This would require that credit agencies actually pull the court docket and make a determination of the type of case, which they are essentially incapable of doing unless they hire a small army of lawyers (which they likely won’t do). Tenants can recover actual damages and attorneys’ fees against credit agencies for violations of these new rules, and the Attorney General also has oversight jurisdiction. The net effect of these new rules will likely be that credit report agencies doing business in Massachusetts will stop collecting eviction records all together.
Rental Application Disclosure Language
The new measure also mandates that all tenant rental applications contain the following new language: “An applicant for housing or credit with a sealed record on file with the court pursuant to section of chapter 239 of the General Laws may answer ‘no record’ to an inquiry relative to that sealed court record.”
What’s Next?
As mentioned above, the measure does not go into effect until May 2025, and that’s probably a good thing because the courts need to create new forms, and the credit agencies have a lot of internal changes they will need to make. Same for landlords and rental agents. While I was writing this up, a colleague asked me this question: “If a record is sealed, does that prevent it from being a “hit” on the 4 or 7 year look-back periods when/if a tenant petitions for a record to be sealed?” My answer (as least right now) is that if a record is sealed, it appears that there should be no “hit” at all for any of the look back periods. Now this is in theory, and I think what will actually happen is either credit agencies will remove all eviction “hits” altogether from their MA reports, or there will be a big lag between what’s on the reports and what’s supposed to be sealed, and the onus will likely be on the tenants (or the courts ….good luck with that) to fix that. Since it’s Massachusetts, I’m sure it will be the usual mess! So we’ll see how this will shake out once the law goes live.
Rich Vetstein is a nationally recognized real estate lawyer with a diverse practice in litigation, title/closing work, rental housing, and zoning. A fierce advocate for rental property owner rights, He was lead counsel in the state and federal legal challenge to the Mass. COVID-19 Eviction Moratorium, the success of which resulted in Governor Baker letting the controversial law expire. Rich can be reached at rvetstein@vetsteinlawgroup.com.
