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CDC Eviction Moratorium Struck Down

An in-depth look at the current state of protections against eviction in MA.

By Molly Keller

Ever since the Massachusetts state eviction moratorium expired last October, renters facing eviction in the state have had to rely on a mishmash of state Eviction Diversion Initiative resources along with the much weaker CDC eviction moratorium to stay in their homes. The CDC allowed their eviction moratorium to expire on July 31 and, after a last-minute round of ‘not it’ from Biden and Congress, ultimately renewed it the following week. The renewed protections only applied in “counties experiencing substantial and high levels of community transmission levels of SARS-CoV-2.” This meant that for roughly the first week that the new moratorium was in effect, Franklin and Hampshire counties were not afforded the same federal renter protections as the rest of the state because they only experienced moderate community transmission of the virus at the time. 

A week later both counties were elevated to “substantial transmission.” This new moratorium was struck down by the Supreme Court on Thursday, August 26th, and any renters previously protected by it are now at higher risk of being ordered by a judge to leave their homes. Indeed, the highest number of executions of evictions for non-payment of rent since Massachusetts lifted their eviction moratorium occurred last week, the first full week since the Supreme Court struck down the CDC Order.

“We are absolutely on the precipice of a huge displacement crisis that could dwarf the 2008 crisis and the great depression,” said Rose Webster-Smith, Program Director Springfield No One Leaves, a member-led grassroots organization that works to keep Western Massachusetts residents from being displaced. “Housing prices are through the roof which indicates another bubble, and bubbles always pop along with people being priced out of their communities by speculators paying cash for homes and then driving up the rental markets with huge rent increases. If our legislators do not act now to protect their constituents, we will see massive displacement like we have not seen before.”

A recent report on housing in the Pioneer Valley conducted by the nonprofit organization Wayfinders and the UMass Donahue Institute found that “More than half of all renters in the Pioneer Valley are housing ‘cost burdened,’ spending 30 percent or more of their income on housing,” and that this burden is disproportionately carried by communities of color in the region; “While less than half of White and Asian Renters spent 30 percent or more of their income on housing, more than half of Black and Hispanic renters did.” 

People of color in the region own their homes at much lower rates than state and national averages, and the report pointed out that “the higher cost burden on people of color who rent reduces their capacity to buy into the housing market and can strand them in the rental market,” and that “people who rent are at particular risk of losing housing to eviction. […] Eviction does not require nearly as much notice [as foreclosures] which can leave renters, particularly people of color, who are in poverty at higher rates, in a perilous position should anything arise that prevents them from making rent such as the ongoing pandemic and recession without the aid of state or federal policy that protects tenants in a time of crisis.”

The CDC Eviction Moratorium Offered Limited Protection When it was in Place

After the Massachusetts state eviction moratorium was allowed to expire, evictions for non-payment of rent ramped back up in the state, though not to anywhere near pre-pandemic levels. Between October 18, 2020, and August 22nd, 2021, new residential eviction filings for non-payment of rent totaled 113 in Franklin County, 162 in Hampshire County, and a whopping 1,728 in Hampden County. These numbers represent the number of times landlords have initiated the eviction process, not necessarily the number of tenants that have been ordered to leave their homes. Massachusetts courts issued “executions”—orders that allow a police officer to physically remove the tenant and their belongings from the property—on evictions for non-payment of rent 5 times in Franklin County, 8 times in Hampshire County, and 112 times in Hampden County during that same time frame. 

Despite what its name might suggest, the CDC moratorium didn’t actually halt eviction processes—it only blocked the “execution” of qualifying evictions. Tenants in Massachusetts protected by the CDC Order still had to go to court, attend mediation, and possibly go to trial, where a judge could rule to evict them. This means that now that the order has been struck down, tenants afforded these protections could be evicted quickly unless they’re covered by the state’s other eviction protections. The exact number of renter households in the Pioneer Valley that have lost protection from the moratorium is unknown; the Western Housing Court Clerk’s office told The Shoestring over the phone that they do not collect that data.

Without the CDC moratorium in effect, more renter households have received executions on their evictions. The week of August 29nd, the first full week since the CDC’s eviction moratorium was struck down, saw 114 executions, the largest number of executions of evictions for non-payment of rent in the state since the statewide eviction moratorium was lifted last fall. Before the Supreme Court struck down the CDC moratorium, the week the CDC’s moratorium briefly expired held the state’s record for executions of nonpayment of rent at 109 executions.  first week in August, when the CDC’s eviction moratorium briefly expired, saw the largest number of executions for non-payment of rent in the state since the statewide eviction moratorium was lifted last fall. 

The limitations of the CDC eviction moratorium were especially concerning to Joel Feldman, an attorney that represents low- and moderate- income clients in the Pioneer Valley in cases involving tenants’ rights. He pointed out that the vast majority of tenants have no legal representation, and courts rule in the landlord’s favor in most cases that go to trial. “We should not go back to business as usual,” he said. “​​If we simplified the court procedures, and you could actually navigate it on your own, I would feel differently, but you can’t. I mean, it’s just really, really hard to win a court eviction.” Indeed, since the Massachusetts eviction moratorium expired, 91.9% of tenants in the state have represented themselves in evictions proceedings, and a 2016 study on evictions by MassLandords found that during the period of time studied in 2014, 99.8% of all cases that went to judgement (weren’t decided through mediation or by default) were decided in favor of the landlord.

Statewide, evictions for non-payment of rent have accounted for only about 70% of court executions since the state moratorium expired, but data on other types of evictions are not available at the county level. The other types of evictions, cause and no-cause, were not protected by either the CDC eviction moratorium or the Eviction Diversion Initiative legislation. There may be many more renters in the region, too, who have vacated their homes after receiving a “notice to quit” (the first step of the eviction process) before being ordered to leave by a judge. This could be for a variety of reasons, including not having the time or energy to go to court or not knowing their rights. Renters do have a variety of resources available to them outside either eviction moratorium to prevent or at least postpone the eviction process, but these resources require applications, and renters still have to go to court to prevent a default judgement in the landlord’s favor.

Feldman spoke to how evictions cause snowballing issues for tenants, pandemic or not. “You can never get another apartment, because there’s this red letter against you in MassCourts, the online court records, and there’s the constant moving with your kids to other places, and it just creates this huge set of problems,” he said. “[Eviction] shouldn’t be a normal process of the housing cycle in the United States,” and, he went on, “Covid shouldn’t be the end, it should be the beginning of looking at this and going, we need a new system. […] And beyond that, obviously, housing should be a right rather than a privilege. But until we get there, at least let’s not throw people out constantly.” 

Feldman explained that during the months of 2020 when the state eviction moratorium was in effect, landlords were not allowed to even initiate the eviction process for no-cause or nonpayment evictions–essentially, unless a tenant was engaging in “criminal behavior,” damaging the property, or something along those lines, they could not be threatened with eviction. Furthermore, any “non-essential” evictions filed prior to the moratorium were not allowed to move forward, and any evictions that had already reached judgement were not allowed to be executed. Regardless of what stage a “non-essential” eviction case was in, it was stopped in its tracks. This meant that between April 20 and October 17, 2020, the weeks the moratorium was in effect, there were no new eviction cases filed for non-payment of rent, and there were only 59 executions of court orders to evict a tenant for any reason in the entire state. 

Other Protections for Renters Available

At present, the state protections and resources available to tenants are abundant, but also narrow and arduous to obtain. Governor Baker chose to invest in “eviction diversion” efforts instead of renewing the moratorium, so renters facing eviction have to apply for various rental assistance programs to postpone or prevent the eviction process, rather than receiving automatic protection. Advocates have criticized this choice, arguing that it returns tenants to the eviction pipeline and that “the [Baker] administration knew full well tens of thousands of Massachusetts residents were at risk of eviction yet moved ahead anyway.” 

The latest CDC eviction moratorium, for its part, was far less comprehensive than the state moratorium that was in place in 2020. It only protected renters who filled out a specific form, and it blocked fewer types of evictions for fewer types of people: it exclusively prevented evictions for non-payment of rent, if the tenant met certain income requirements and lives in a county with substantial or high Covid-19 transmission. Renters who were protected under the previous CDC moratorium were automatically covered under the renewed one without having to file any additional paperwork, provided they lived in a county with sufficient community transmission of the virus. 

“The CDC moratorium had many loopholes for people to fall through the cracks, as the onus was always on the tenant knowing how to access and serve the affidavit to the landlord,” said Webster-Smith of Springfield No One Leaves. “People are scared and more and more tenants are signing agreements to leave, but unfortunately there are very minimal apartments available for them to rent. While the rental assistance can be used to move, you must first have an apartment lined up or you will be denied, which is problematic as most people do not windowshop for an apartment if they do not have 1st last and security.”

In an interview with The Shoestring, State Representative Lindsay Sabadosa explained a few additional protections available to renters thanks to the state’s June Covid-19 bill. Most notably, an eviction for non-payment of rent is paused if the tenant experienced a Covid-19 related hardship and has a pending application for short-term rental assistance like RAFT. This is a slightly stronger protection than the CDC eviction moratorium, since it can halt an eviction at an earlier stage. “If you’ve got the application in,” Sabadosa said, “you get weeks of protection, and hopefully in the end, actually the funds for the back rent to be paid.” Yet recent reporting from the Boston Institute for Nonprofit Journalism revealed that as of May 2021, the vast majority of RAFT and ERMA applications had been denied or timed out of the application period, so these protections may in the end postpone more evictions than it prevents. 

Webster-Smith pointed out that restricting protections to non-payment of rent creates loopholes for landlords to exploit. “Many Landlords are using no fault and cause to skirt around not only the CDC moratorium but also to avoid Chapter 257 protections that give tenants an automatic continuance in their court case until a decision has been made on their application,” she said. Springfield No One Leaves does outreach to all tenants in Western Massachusetts with eviction cases filed against them, and Webster-Smith said that in her experience, “I have seen many no-fault cases filed [that] say they just want possession, yet they are claiming thousands in back rent owed or they say zero owed and then move to amend the complaint to add in the back rent after the case is filed.”

Additionally, Sabadosa pointed out that even “just cause” evictions can occur due to hardships experienced by the tenant, and that these types of evictions have continued to happen throughout the pandemic. “We have seen cases in the last 18 months where people are evicted because they’re not maintaining the property at a habitable level, and a lot of times those cases are really difficult and really, really sad, because there’s mental illness involved or there’s generally extenuating circumstances.”

Springfield No One Leaves also helps tenants with rental assistance applications and organizes tenant unions and training on tenant rights, eviction blockades, and civil disobedience. “Most people in our experience have no idea of RAFT/ERMA and do not find out about it until they are in court or if they receive personal outreach materials which explain how to access the assistance,” Webster-Smith said. “If you are not technology savvy or are not fluent in English, these programs can be very hard to access as many times your phone call to Wayfinders never gets returned and the application is only in English and is 18 pages long. […] Many times people do apply and it takes weeks for anyone to acknowledge that the application was submitted or for a case manager to be assigned to your application. By that time, often it is too late and the tenant has already left or signed an agreement to leave.”

New Legislation

State Representative Sabadosa and attorney Joel Feldman are both proponents of the Covid-19 Housing Equity Bill (H.1434/S.891), which among other things would divert more eviction cases from the courts to try to keep people in their homes. Feldman said that “the [mission of the court] is not to protect tenants; It’s to dispense what they see as neutral justice, which can include, you know, following the law and thereby evicting most of the tenants, which is what happens. So in many advocates’ view, the way to resolve this is to try to keep these cases out of court so that people don’t face eviction, and try to resolve it in other ways.”

The bill states that “no landlord or property owner may commence a COVID-19 eviction unless it establishes that […] the parties have exhausted all available opportunities, and worked in good faith, to obtain short-term emergency rental assistance,” and that “during the state of the Emergency Declaration and for 12 months after the Emergency Declaration is rescinded, no person shall attempt to commence, or commence, an eviction, except for just cause.”

This bill and past legislation pertaining to rental assistance exist in part due to the haphazard rollout of emergency rental assistance money: of the $406,101,079 that the state expects to receive from the Federal Emergency Rental Assistance Program (“ERAP”) legislated in the American Rescue Plan Act (ARPA), the state has only spent $24,333,333—less than 6% of the total funds. Critics have argued that the slow rollout may be due to the decentralization of the rental assistance process; in the state of Massachusetts alone, there are 77 different emergency rental assistance programs, the majority of which operate on a town level.

“[The Covid-19 Housing Equity Bill] tries to make sure that the regional administering authorities get to do their work, which is to distribute the funds,” said Sabadosa. “We have so much money; I think that’s the part that’s really frustrating about this. There’s so much money, just millions and millions of dollars out there that we need to get into the hands of the people,” she continued, “I was talking to a colleague the other day, and we were like, ‘We should just pay people’s rent! We have enough money to just pay people’s rent.’ But you know, the government likes to have processes. It’s great that it’s federal money, but unfortunately, that means that it comes with restrictions, and we do have to follow certain procedures. This bill would allow us to continue to use all of that money, but still set up a process that is just a little bit friendlier.”

Molly Keller is a member writer at The Shoestring. She lives in Amherst. Photo credit: City Life/Vida Urbana

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