The 2010 Post-Foreclosure
“Just Cause” Eviction Law
Massachusetts Law Reform Institute
99 Chauncy Street, Suite 500, Boston, MA 02111-1703
PHONE 617-357-0700 ▪ FAX 617-357-0777 ▪ www.mlri.org
Revised December, 2010
1
Background
On August 7, 2010, Governor Deval Patrick
signed into law “An Act Relative to
Mortgage Foreclosures”, Chapter 258 of
the Acts of 2010.
2
Background (cont.)

Section 6 of Chapter 258, “Tenant Protections in
Foreclosed Properties,” adds a new Chapter
186A to the General Laws.1

The new Chapter 186A is often referred to as
the “Post-Foreclosure Just Cause Eviction Law”
or simply the “Just Cause Eviction Law.”

The Just Cause Eviction Law went into effect
immediately on August 7, 2010.
3
Why do we need a just cause eviction law?

The Just Cause Eviction Law recognizes that
foreclosing banks have evicted thousands of
renters in Massachusetts.

The law also recognizes that foreclosure itself is
not solely responsible for the displacement of
families and the devastation of neighborhoods.

Instead, the law concentrates on what happens
after foreclosure and targets the banks’ choice
to evict tenants.
4
Preamble to the new law
Whereas, The deferred operation of this
act would tend to defeat its purpose, which
is to protect forthwith the citizens and
neighborhoods of the commonwealth,
therefore it is hereby declared to be an
emergency law, necessary for the
immediate preservation of the public
convenience.
5
Overview
The new law (M.G.L. c. 186A1):

Prohibits foreclosing banks and similar entities in the
mortgage business (“foreclosing owners”) from evicting
“bona fide” tenants unless there is “just cause” or a
binding purchase and sale agreement.

Requires foreclosing owners to give tenants written
notice with contact information for the foreclosing owner
and the person responsible for management and
maintenance.

Requires other notices before a foreclosing owner can
evict.
6
Who is a “bona fide” tenant?

Can’t be the parent, child, or spouse of former
owner/landlord.

Must have entered into lease/tenancy through
an “arms length” transaction with former
owner/landlord.

Moved in before the foreclosure.2
Note:

Persons with rental subsidies such as Section 8 will
generally qualify as bona fide tenants.

A lease is not required – tenants at will of former
owner can be bona fide tenants.
7
What is a “foreclosing owner”?
A “foreclosing owner” is an entity (not an
individual) that holds title as a result of
foreclosure and

held the mortgage before foreclosure or is
related to the entity that held the mortgage
before foreclosure, or

is in the mortgage business and holds title to
the property within 3 years of the foreclosure
deed.3
Note: In these slides, the “foreclosing owner” may be
referred to as the “bank” and the foreclosed property as
“bank-owned.”
Which tenants in foreclosed properties
are protected by the new law?

All tenants in bank-owned properties are
entitled to contact information notices from the
foreclosing owner.

A foreclosing owner can’t evict bona fide tenants
unless there is “just cause” or a binding
purchase and sale agreement on the property.

Tenants in properties purchased at foreclosure
sale by private investors or individuals (not
foreclosing owners) are not protected by this
law.
9
What notices must a foreclosing owner
provide to tenants after foreclosure?
A foreclosing owner must provide written contact
information notices to all tenants in foreclosed
properties with:

Name, address, and telephone number
of the foreclosing owner;

Name, address, telephone number of the
person responsible for repairs/management;

Address where rent should be sent.4
10
When must the contact information
notice be provided?
Contact information notice must be provided
within 30 days of the foreclosure.
11
How must the contact information notice
be delivered to tenants?
Foreclosing owner must:

Post notice in prominent location in the
building;

Mail to each unit (by first class mail);

Slide under the door to each unit.
(must do all three)
12
When can a “bona fide” tenant be
evicted by a foreclosing owner?
A foreclosing owner can evict a bona fide tenant
under only two circumstances:

If there is “just cause” (nonpayment or
various tenancy violations);

If there is a binding purchase and sale
agreement with a third party.5
13
What is an “eviction” for which a
foreclosing owner needs just cause?
“Eviction” is defined VERY broadly as :
An action without limitation . . . which is
intended to actually or constructively evict
a tenant or otherwise compel a tenant to
vacate. . . .6
14
Examples of “eviction” under
Chapter 186A

Telling or leading tenants to believe that they
must move out because of the foreclosure.

Serving notice to quit or court complaint.

Refusing to repair.

Offering “cash for keys” without informing
tenants of their rights under this law.
15
What constitutes “just cause” to evict?
There are six “just cause” reasons for eviction:

Non-payment of rent (or use and occupancy);

Material violation of an obligation of the tenancy;

Refusal of written request to renew/extend lease with
the foreclosing owner;

Creating or allowing a nuisance in the unit, damaging
the unit, or disturbing other occupants;

Illegal activity in the unit;

Refusal to allow the foreclosing owner reasonable
access to inspect, repair or show unit to prospective
purchaser.7
16
Non-payment as “just cause” to evict
A foreclosing owner can evict for non-payment only if:

30 days have passed since the contact information
notice was posted and delivered;

It delivered to the tenant, at the same time as the
contact information notice, a written notice of
tenant’s right to a court hearing before eviction;

It notified tenant in writing of the amount of rent
(should generally be same as before foreclosure).8
17
Material violation of tenancy as
“just cause” to evict
A foreclosing owner can evict for a material
violation of an obligation of the tenancy only if:

30 days have passed since the contact information notice
was posted and delivered;

It delivered to the tenant, at the same time as the contact
information notice, a notice of tenant’s right to a court
hearing before eviction;

It delivered written notice of the alleged material
violation;

30 days passed since the notice of the violation was
received and tenant has not cured the violation
(30 day right to cure).
18
Refusing to extend or renew lease or
tenancy agreement as “just cause”
A foreclosing owner can evict for tenant’s refusal
to extend/renew lease or tenancy agreement
only if:

30 days have passed since the contact information
notice was posted and delivered;

Foreclosing owner delivered to the tenant, at the same
time as the contact information notice, a written notice
of tenant’s right to a court hearing before eviction;

Tenant had lease or tenancy agreement with former
owner that expired after August 9th, 2010;

Foreclosing owner requested in writing that tenant
extend/renew lease or tenancy agreement.
19
Other “just cause” reasons to evict
Foreclosing owner can evict for the following
reasons only if it delivered the contact
information notice and, at the same time, a
written notice of tenant’s right to a court
hearing before eviction:

Creating nuisance in unit, causing
substantial damage, or disturbing other
occupants;

Illegal activity in the unit;

Refusing reasonable access for repairs or
to show unit.
20
What if the foreclosing owner does
not provide the required notices?

Foreclosing owner cannot evict for “just
cause” unless contact information and other
required notices have been delivered.

Foreclosing owner may be fined $5,000 per
“eviction” that violates the new law, or be held
liable for damages under other laws.9

May be liable for damages for unfair and
deceptive acts under the Mass. Consumer
Protection Law and other laws.
21
What if an investor or individual,
not a bank, buys at foreclosure?

Tenants in properties purchased by an individual
or investor (not a “foreclosing owner”) are not
protected by the new just cause eviction law.

But most of these tenants are still protected by
the federal “Protecting Tenants at Foreclosure
Act of 2009.” This means that in most cases
they can finish their leases or get at least 90
days’ notice before the new owner can start a
summary process case.10
22
Does the new law apply if foreclosure
was before August 7, 2010?

On October 21, 2010, Judge Dina Fein, First
Justice of the Western Division of the Housing
Court Department, decided the summary
process (eviction) case of Deutsche Bank (as
Trustee) v. Mildred Matos.11

Deutsche Bank had foreclosed on the former
owner/ landlord before August 7, 2010, had
served the tenant with a notice to quit before
August 7, and had filed the summary process
court case before August 7.
23
Does the new law apply if foreclosure
was before August 7, 2010? (cont.)
Judge Fein dismissed the bank’s summary
process case, holding:

Chapter 186A applies to “evictions” after August
7, 2010. There is no indication that the
Legislature intended to exempt cases that were
pending, or foreclosure was before August 7.

Since Deutsche Bank had no just cause to
“evict” (here, continue with the summary
process case), the case must be dismissed.
24
Does the new law apply if foreclosure
was before August 7, 2010? (cont.)
Judge Fein wrote:
. . . dismissal flows necessarily from the plain
language of the Act's emergency preamble, which
states an intention to protect ‘forthwith’ the
citizens and neighborhoods of the Commonwealth,
and from the plain language of Chapter 186A,
which prohibits a foreclosing owner from taking
‘an action, without limitation,’ intended ‘actually
or constructively’ to evict a bona fide tenant,
except for ‘just cause.' This language could not be
clearer; ‘an action, without limitation’ can only
mean "any and all actions."
25
What are the rights of Section 8
or MRVP tenants?

Other state and federal laws require that
subsidized leases and agreements be assumed
by whoever takes title after foreclosure (not
just “banks”).12

The rules of the subsidy program continue to
apply after foreclosure.

Almost all subsidized tenants are “bona fide”
under the new law and therefore can only be
evicted for just cause.
26
What other protections do tenants
in foreclosed properties have?

All post-foreclosure owners must maintain the
property up to standards of the State Sanitary
Code.13

No matter what their status, tenants have the
right to a court hearing prior to eviction. Under
no circumstances can a post-foreclosure owner
force a tenant to leave without a court order.14
27
Where can I find more information on
the new law and other laws protecting
tenants after foreclosure?
The full text of the new “just cause” eviction law can be found at:
http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter186A
/Section1
A more detailed summary of this law, as well as other laws that affect the
rights of tenants in foreclosed properties, can be found at:
www.masslegalservices.org/Tenant-Rights-After-Foreclosure
and
http://www.lawlib.state.ma.us/subject/about/tenantsinforeclosure.html
For additional information contact:
Judith Liben
Senior Housing Attorney
Mass. Law Reform Institute
99 Chauncy St., Boston, MA 02111
617-357-0700 x327
jliben@mlri.org
28
Endnotes
1
The Just Cause Eviction Law, G.L. c. 186A, is found at
http://www.malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter186A/Section
1.
2
“Tenant” and “Bona fide tenancy” are defined in c. 186A, § 1.
3
“Foreclosing owner” is defined in c. 186A, § 1.
4
The provisions dealing with the contact information notice are in § 3.
5
See c. 186A, § 2.
6
This language comes from the statutory definition in § 1. It is not clear at this time
how broadly courts will interpret this language but it would appear to cover many
actions by foreclosing owners other than service of legal documents.
7
“Just cause” is defined in § 1.
8
§§ 3 & 4 address the notices required for a foreclosing to evict for just cause.
9
§ 6 addresses the penalties for unlawful evictions.
29
Endnotes
10
See §§ 702 & 703 of the federal Protecting Tenants at Foreclosure Act of 2009,
12 U.S.C. § 5220 note; Pub. L. No. 111-22, tit. VII, 123 Stat. 1632, 1660-62
(2009) (as amended by Pub. L. No. 111-203, tit. XIV, § 1484 (2010)).
11
See Deutsche Bank v. Matos, No. 10-SP-2731 (Hampden County Housing Ct.,
Oct. 21, 2010). Deutsche Bank has filed a notice of appeal.
12
See M.G.L. c. 186, § 13A (as amended by Section 5 of St. 2010, c. 258, An Act
Relative to Mortgage Foreclosures (August 7, 2010)) and the federal Protecting
Tenants at Foreclosure Act of 2009. Full texts of these laws found at
http://www.lawlib.state.ma.us/subject/about/tenantsinforeclosure.html.
13
For more about the basic rights of tenants in foreclosed properties see:
http://www.masslegalservices.org/node/23601 and
http://www.lawlib.state.ma.us/subject/about/tenantsinforeclosure.html.
14
See endnote #13 above.
30