Bill Text: MA H3683 | 2009-2010 | 186th General Court | Introduced
Bill Title: The escrowing of withheld rent actions
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2009-01-20 - Public Hearing date 9/29 at 10:30 AM in Hearing Room B2 [H3683 Detail]
Download: Massachusetts-2009-H3683-Introduced.html
The Commonwealth of Massachusetts
_______________
PRESENTED BY:
Robert F. Fennell
_______________
To the
Honorable Senate and House of Representatives of the Commonwealth of
Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the passage of the accompanying bill:
An Act relative to the escrowing of withheld rent. .
_______________
PETITION OF:
|
Name: |
District/Address: |
|
Robert F. Fennell |
10th Essex |
|
John W. Scibak |
2nd Hampshire |
|
Bruce E. Tarr |
First Essex and Middlesex |
|
Robert M. Koczera |
11th Bristol |
[SIMILAR MATTER FILED IN PREVIOUS
SESSION
SEE HOUSE, NO. 1216 OF 2007-2008.]
The Commonwealth of
Massachusetts
_______________
In the Year Two Thousand and Nine
_______________
An Act relative to the escrowing of withheld rent. .
Be
it enacted by the Senate and House of Representatives in General Court
assembled, and by the authority of the same, as follows:
SECTION 1. Section 8A of said chapter 239, as
appearing in the 2004 Official Edition, is hereby amended by striking out the
second, third and fourth paragraphs and inserting in place thereof the
following 6 paragraphs:
At any time when a person is entitled to serve a notice to quit upon a tenant
or occupant or is otherwise entitled to commence a summary process action
pursuant to this chapter, such person may demand, in the notice to quit or by
later demand, that the tenant or occupant pay into court all unpaid rent or use
and occupancy that is accruing or has accrued since the first day of the sixth
full calendar month prior to the date of service of the notice or later demand.
Such amount shall be paid within 5 business days following the date of service
of the notice or later demand, whichever is later; provided, however, that in
the event that the tenant’s or occupant’s rent is subsidized by any
governmental agency or governmentally subsidized agency, the amount to be paid
shall be limited to only that portion of the rent paid by the tenant or
occupant. Any notice to quit or later demand submitted in accordance with this
paragraph shall include a statement indicating into which court the deposit
shall be made. Such court may be any court which would have jurisdiction over a
summary process action against the tenant or occupant. The person making such
demand shall file with such court a copy of the notice to quit or later demand,
together with a statement under oath by the person who served such notice to
quit or later demand indicating how such service was made. Service of such
notice to quit or later demand shall be by any means permitted for service of a
summary process complaint. Such court shall have jurisdiction over all issues
arising out of the demand for such deposit, which shall be considered a
separate action from any summary process action against such tenant or occupant
and shall be commenced by the filing of the copy of the notice to quit. The
person making such demand shall be the plaintiff. The tenant or occupant
receiving such demand shall be the defendant. Any notice to quit or later
demand submitted in accordance with this paragraph shall contain a statement of
the agreed-upon rent rate heretofore payable, the subsidized tenant’s or
occupant’s portion of the agreed-upon rent rate, if applicable, and the amount
of any and all unpaid rent as defined and limited by this paragraph.
The defendant shall pay into court within 5 business days of service of the
notice or later demand the amounts so demanded under the previous paragraph and
shall continue to pay into court within 3 business days after its due date the
agreed-upon rent rate or the unsubsidized portion thereof that accrues during
the pendency of the action demanding deposit in accordance with the preceding
paragraph or during the pendency of a companion summary process action;
provided, however, that the tenant or occupant may deduct any amounts,
documented with copies of receipts, that were reasonably spent by the tenant or
occupant pursuant to section 127L of chapter 111. Such copies of receipts shall
be deposited in the same manner with the court in lieu of payment. The
defendant shall provide the court with the name of the plaintiff in the action
demanding deposit or in the companion summary process action. The defendant
shall notify the plaintiff in writing of the amounts so deposited and shall
provide therewith copies, if any, of all receipts deposited with the court
according to this section.
If the plaintiff or the defendant believes the amounts demanded or deposited
are in error and not according to the requirements of the previous 2
paragraphs, either the plaintiff or the defendant may request a hearing. The
defendant shall request such hearing not later than the date on which the
demanded deposit is due in court. The plaintiff shall request such hearing
within 3 business days after receipt of the notice from the defendant of the
amount deposited. The hearing shall be requested in writing to the clerk of the
court and may be mailed. The hearing shall be scheduled by the court for a date
not later than 10 calendar days after the court’s receipt of the hearing
request. At the hearing, the court shall consider only arguments pertaining to
the agreed-upon rent rate, a subsidized tenant’s or occupant’s portion of the
agreed-upon rent rate, the amounts not paid since the first day of the sixth
full calendar month prior to the date of service of the notice or later demand
and any documented deductions pursuant to said section 127L of said chapter
111, as required by the previous 2 paragraphs. After hearing arguments only
relative to the amounts required by the previous 2 paragraphs, the court shall
determine the escrow amount and order its payment or refund by the close of the
next business day after the hearing. The court shall order the determined
amount to be paid into court or any excess previously deposited to be refunded
by the court not later than the close of 5 business days after the hearing. In
the event that a hearing on the amount demanded or deposited has been
requested, the eviction trial date and any companion summary process action
shall be scheduled not later than the next regular trial date that occurs after
5 business days following the hearing.
If the defendant fails to comply with any portion of this section, any claims,
counterclaims or defenses asserted under this section shall be dismissed and
shall not be considered in the hearing on the plaintiffs companion summary
process action, which shall commence on the original trial date or as provided
in the previous paragraph. Nothing in this section shall prevent the tenant or
occupant from maintaining a separate action for damages regarding the
habitability or condition of the premises.
Amounts deposited with the court under this section shall be paid over by the
clerk of the court in accordance with a written out-of-court agreement between
the plaintiff and the defendant provided that their signatures are duly
notarized, or if the parties cannot agree, then the amounts deposited shall be
paid to the plaintiff or the defendant as the court directs upon final
disposition of the action. Before final disposition of the action, if the court
so orders, any amounts so deposited shall be paid to the plaintiff to make
repairs to the premises that are required by law or to mitigate financial
hardship to the plaintiff. If, within 1 year of the commencement of an action
demanding deposit in accordance with this section, no summary process action is
initiated against the tenant or occupant arising out of the notice to quit, or
at any time when the tenant fails to make ongoing monthly deposits in
accordance with this section, the court may, upon motion of either party, order
any such deposit to be distributed in such manner as it would have been
distributed in a summary process action concerning rent due for such land or
tenements.
Whenever any counterclaim or claim of defense under this section is based on
any allegation concerning conditions affecting the premises or services or
equipment provided therein, the tenant or occupant shall not be entitled to
assert such counterclaim or claim of defense unless:
(1) (a) the board of health or other local enforcement agency has certified
that such conditions constitute a serious violation of the standards of fitness
for human habitation as established in the state sanitary code, the state
building code or any other law, ordinance, by-law, rule or regulation
establishing such conditions; (b) the plaintiff received such certification
prior to the date that the tenant or occupant received the notice to quit or
the notice terminating the tenancy;
(2) the plaintiff does not show that such conditions were caused by the tenant
or occupant or any other person acting under the tenant’s or occupant’s
control, except that the defendant shall have the burden of proving that any
violation appearing solely within that portion of the premises under his
control and not by its nature reasonably attributable to any action or failure
to act of the plaintiff was not so caused;
(3) the premises are not situated in a hotel or motel, or in a lodging house or
rooming house wherein the occupant has maintained such occupancy for less than
3 consecutive months;
(4) the plaintiff does not show that the conditions complained of cannot be
remedied without the premises being vacated; provided, however, that nothing in
this clause shall be construed to deprive the tenant or occupant of relief
under this section when the premises are temporarily vacated for purposes of
removing or covering paint, plaster, soil or other accessible materials
containing dangerous levels of lead pursuant to said chapter 111; and
(5) the tenant or occupant has complied with all provisions of this section
regarding deposit of past and accruing rent as defined herein.
