By Alexandra Trobe
How We Gonna Pay Last Year’s Rent?* Advocating Rental Housing Reform in Boston
*Adam Pascal et al., Rent, on, Rent Original Major Picture Soundtrack (Warner Records 2005).
Unprecedented Rental Relief in Unprecedented Times
The novel coronavirus is disrupting so much of life in Boston, MA. From school and business closings to rising unemployment rates, more residents than ever are concerned than ever with affording basic essentials—including the rent due on the first of each month. The reality of how to pay for rent is substantial in Boston, where an estimated sixty percent of over seven-hundred thousand residents rent, making it the fourth most densely populated region in the United States after the New York Metro Area, Greater Los Angeles, and South Florida Metro Area.
As of April 20, Gov. Charlie Baker signed legislation placing a moratorium on non-emergency residential evictions and foreclosures during the novel coronavirus pandemic. Under this moratorium, landlords are not able to file eviction notices for the next 120 days, or for 45 days from the lifting of Gov. Baker’s emergency declaration, whichever comes first. Additionally, the moratorium bans late fees and negative reporting to credit-rating agencies for unpaid rents if tenants can prove pandemic-related issues with late payments.
Sam Dornan / Boston Globe
Figure 1: Baker signs bill blocking evictions during coronavirus crisis (Tim Logan, Baker signs bill blocking evictions during coronavirus crisis, Boston Globe (Apr. 20, 2020))
Additionally, the federal government has passed a $2 trillion coronavirus rescue package—the CARES Act—including a 120-day moratorium on most evictions at properties that receive federal subsidies or that federal entities insure. Notably, the CARES Act does not apply to eviction proceedings in progress before President signed the legislation on March 27th, or to eviction cases meeting a number of exceptions discussed in the Act.
On April 4, Mayor Martin Walsh announced $3 million in city funds to help Boston residents at risk of losing their rental housing due to the novel coronavirus pandemic. The Rental Relief Fund is managed by the Office of Housing Stability, in partnership with non-profit partners Metro Housing Boston and Neighborhood of Affordable Housing. This program will provide eligible applicants with up to $4,000 in financial assistance to be used for rent. Additionally, the funding will only be available to households earning less than 80 percent of Area Median Income (AMI), which is $72,000 for a two-person household. A significant portion of these funds are reserved for households with extremely low incomes (under $25,000 for a single-person household), and very low-incomes or less than $42,000 for a single person (50 percent AMI). “In the midst of the COVID-19 pandemic, a national crisis at a scale not seen in our lifetime, it is imperative that all levels of government exercise all possible tools to ensure the health and safety of our residents, and to keep them stably housed,” said Mayor Walsh. (Thomas Stackpole, How Did Renting in Boston Become Such a Nightmare?, Boston Magazine (May 30, 2020))
Lane Turner/ Boston Globe
The Rent is Due Every Day: Framework Changes to the Rental Housing Market
The efforts of the federal and MA government to address the needs of renters in Boston are necessary measures to help residents maintain stable housing in these unprecedented times. Nevertheless, it is merely band-aid for the greater problem of the daily struggle for low-income Boston residents to make rent, or even establish tenancies.
The Commonwealth provides financial assistance through the Residential Assistance for Families in Transition (“RAFT”) program in which up to $4,000 may be awarded to applicants to establish tenancies. However, with Fair Market Rent (“FMR”) rising in Massachusetts to $1,425 for a one-bedroom and $1,758 for a two-bedroom apartment, the $4,000 allocation from the RAFT program may not be enough to overcome the high bar to starting tenancies in Massachusetts for low-income families who are homeless or at risk of becoming homeless. The barriers to entry establishing a tenancy in MA include: the first full month of rent, last full month of rent, security deposit equal to the first month’s rent, broker fee equal to first month rent, and one-time fee covering installation of a new key and lock. The cumulative effect of these fees requires upwards of four months of rent to gain tenancy in Massachusetts. The impact of this legislation disproportionately bar low-income residents from securing and maintaining affordable housing.
When federal and state aid to low-income residents is not sufficient to help families begin tenancies, it is imperative to look to alleviating some of these barriers to entry to affordable housing. In addition to being the fourth most densely populated region in the United States, Boston also is also boasts the fourth-highest average rental market. Compared to the rental markets of New York City and Los Angeles, the Boston market imposes the broker fee, equal to one full month’s rent, which may be borne by the tenant. This differs to New York’s recent ban on broker fees, and Los Angeles’ burden shifting of broker fees to the landlord.
Massachusetts should consider following in the footsteps of their metropolitan neighbors and propose legislative action banning broker fees in order to decrease the burden to tenants establishing tenancy. In the alternative, the legislature should support the proposed bill H.4452: An Act Relative to Consumer Rights of Renters which shifts the burden of paying broker fees to the landlord with the following language: “[t]his fee shall only be paid by the lessor of the residential dwelling and shall not be transferred to or paid by an other party.”
Conclusion
The novel coronavirus is truly a pandemic affecting every area of daily life, but it’s disparate impact to low-income families towards their struggle to afford housing illuminates a deeper issue that needs to be addressed with expediency. The cost of securing and maintaining a tenancy in Boston is simply too high and not sustainable. As a result, the legislature should tackle broker fees directly to allow more residents the opportunity to initiate affordable tenancies in Boston. This may take the form of eliminating broker fees in their entirety, or shifting the burden to landlords to pay the fee, but ultimately the legislature should take action to protect the most vulnerable member in this time—low-income residents trying to establish and maintain affordable housing for themselves and their families.
Alexandra Trobe anticipates graduating from Boston University School of Law in May 2021.
Protecting Vulnerable Road Users: A Vicious Cycle
Ten-year-old, Julian Moore was riding his bicycle in a suburb in Rochester, NY on Sept. 7, 2018, when 66-year-old Doug Lamb hit him with his Range Rover.
Figure 1: Julian Moore and his mother, Jenny Moore, walk near the spot where Julian was hit while bicycling. (Photo: Max Schulte/Rochester Democrat and Chronicle).
Lamb stopped the car after his collision with Moore, but did not give his information to Julian, the paramedics, or Julian’s mother. By the time the police arrived, Lamb had departed the scene. It took two weeks for the police to track Lamb down and charge him with the misdemeanor crime of leaving the scene of an accident causing personal injury. Pittsford Town Judge John Bernacki had decided to adjourn the case in contemplation of dismissal, meaning Lamb’s record would be wiped clean, on the condition that Lamb write an apology to the boy.
His apology letter read:
This act of “contrition” drew sweeping public scorn in January after the boy’s mother, Jenny Moore, posted a copy of the letter on her Facebook Page and the backstory subsequently made headlines around the country. In response, prosecutors moved to re-open the case and proceed to trial for failing to meet the apology requirement of his plea deal.
Prosecutor Daniel Strollo said his office pursued the case to the extent that it did because Lamb neglected to meet the condition to which he agreed to resolve the matter. “Mr. Lamb was given one simple instruction: to send a letter of apology,” Strollo said. “He didn’t do that. When you don’t follow through on the terms of a commitment for a plea or a disposition of a case, our office is not going to just ignore it.”
Lamb plead guilty on Dec. 6 in Pittsford Town Court to leaving the scene of an accident causing property damage—a mere traffic infraction. In exchange, Lamb was ordered to pay a $200 fine, perform eight hours of community service.
Julian’s story garnered national attention for his crash. Lamb was protected by a 5,000-pound vehicle of steel. Julian was protected by a plastic helmet. If it seems ludicrous the legal system could enable Lamb to walk away with a small fine and apology, it may be time to even the playing field and shift legislative protections toward vulnerable road users such as Julian.
Vulnerable Road Users
All over the country, thousands of similar crashes are occurring in the shadows, without the benefit of a national audience holding drivers accountable. The National Highway Traffic Safety Administration data shows 857 cyclists were killed in crashes with vehicles the U.S. in 2018. The same study found Florida leading the country with 161 of those fatalities, finding bicycle deaths for those 20 and older have tripled since 1975.
However, Florida legislators are prepared to step up and do something about the mounting problem, formally adopting “Vision Zero Florida” with a strategic goal of zero traffic fatalities and severe injuries for all users. Part of this vision includes advocacy for a proposed bill, H.B. 455 – Traffic Offenses, in the Florida Legislature which provides criminal penalties for persons committing moving violations causing serious bodily injury or death to a vulnerable road user including: a fine, period of house arrest, mandatory driver education, revocation of driver license. One of the largest shifts however, is the establishment and definition of “vulnerable road user.”
The League of American Bicyclists, a national bicycle advocacy organization, defines a Vulnerable Road User (“VRU”) as “anyone who is on or alongside a roadway without the protective hard covering of a metal automobile. The term includes bicycle riders, pedestrians, motorcyclists, people in wheelchairs, police, first responders, roadway workers and other users like a person on a skateboard or scooter. It is meant to include people who are especially at risk of serious bodily harm if hit by a car, or truck.”
VRU laws operate on the principal of general deterrence - by providing an increased penalty for certain road behaviors that lead to the serious injury or death of certain road users people will be deterred from doing those behaviors around those users.
Oregon State Capitol
Salem, 1938
In 2007, Oregon became the first Legislature to pass, HB 3314, creating an enhanced penalty for careless driving if it contributes to serious physical injury or death to a “vulnerable user of a public way.” Currently, only nine 9 states have laws that define a vulnerable user or VRU and provide particular penalties for actions towards those vulnerable road users or when violations of traffic law lead to the serious injury or death of a VRU – Connecticut, Delaware, Florida, Hawaii, Maine, Oregon, Utah, Vermont, and Washington. In Texas, approximately 28 cities have passed their own VRU laws in the absence of a statewide version.
To advance this legislative effort, the League of American Bicyclists, proposes a model VRU statute for state legislatures. The model language: Section 1) defines VRU protected persons; Section 2) defines when the law is applicable and who can be charged with a violation of the law; Section 3) requires a person charged according to this law to attend a hearing; and Section 4) provides the punishments that are to be given to a person convicted of a violation of this law.
Road Ahead
Without enhanced protection for VRUs through increased penalties, it is common for a driver who kills or seriously injures a VRU to just be given a ticket for careless driving, as illustrated in a 2013 report by the Center for Investigative Reporting finding that in 238 pedestrian fatalities 60% of motorists found to be at fault or suspected of a crime faced no criminal charges.
As the closing lines of Prosecutor Strollo’s motion on behalf of Julian Moore states, “[t]he people are ready for trial.” Echoing a crystalizing national awareness that calls for increased protections to vulnerable road users, the people are ready for legislative change—and states legislatures should consider adopting a version of the VRU model law to meet this demand.
Alexandra Trobe anticipates graduating from Boston University School of Law in May 2021.
