Bill S.778

SENATE DOCKET, NO. 1552 FILED ON: 1/20/2017

SENATE . . . . . . . . . . . . . . No. 778

By Mr. Brownsberger (by request), a petition (accompanied by bill, Senate, No. 778) of G. Emil Ward, Esq. for legislation to require mandatory rent escrow. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninetieth General Court
(2017-2018)

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An Act requiring mandatory rent escrow.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

Notwithstanding any law or special law to the contrary, Ch. 239, the

General Laws, Section 8A shall be amended as follows:

At Paragraph 4, the following text shall be deleted in its

entirety:

“The court after hearing the case may require the tenant or occupant claiming under this

section to pay to the clerk of the court the fair value of the use and occupation of the

premises less the amount awarded the tenant or occupant for any claim under this section,

or to make a deposit with the clerk of such amount or such installments thereof from time

to time as the court may direct, for the occupation of the premises. In determining said

fair value, the court shall consider any evidence relative to the effect of any conditions

claimed upon the use and occupation of residential premises. Such funds may be

expended for the repair of the premises by such persons as the court after a hearing may

direct, including if appropriate a receiver appointed as provided in section one hundred

and twenty-seven H of chapter one hundred and eleven. When all of the conditions found

by the court have been corrected, the court shall direct that the balance of funds, if any,

remaining with the clerk be paid to the landlord. Any tenant or occupant intending to

invoke the provisions of this section may, after commencement of an action under this

chapter by the landlord, voluntarily deposit with the clerk any amount for rent or for use

and occupation which may be in dispute, and such payments shall be held by the clerk

subject to the provisions of this paragraph.”

At paragraph 4 the below text shall be inserted where the above text was

deleted:

“The court after hearing on motion of a request for rent escrow shall require the tenant or

occupant claiming under this section to pay to the clerk of the court all rent withheld or

accrued to date and as yet unpaid to the plaintiff on the date of filing any defense or

counterclaim and all rent accruing thereafter until the matter has been settled or judgment

is entered by the court for occupation of the premises. Upon motion of either party or

upon the court’s own motion such escrowed funds shall be expended for the repair of the

premises, if the tenant or occupant claims the premises are in violation of the standard of

fitness for human habitation established under the state sanitary code, the state building

code, or any other ordinance, by-law, rule, or regulation establishing such standards and

that such conditions may endanger or materially impair the health, safety or well-being of

a person occupying the premises, said repairs shall be made by such persons including the

landlord, lessor or plaintiff, as the court after hearing on motion may direct, including if

appropriate a receiver appointed as provided in section one hundred and twenty-seven H

of chapter one hundred and eleven. When all of the conditions found by the court to have

been in violation of the standards of fitness as described above have been corrected, the

court shall direct that the balance of funds in escrow, if any, remaining with the clerk be

paid to the landlord.”

At paragraph 4, the following text shall be deleted:

“Any tenant or occupant intending to invoke the provisions of this section may, after

commencement of an action under this chapter by the landlord, voluntarily deposit with

the clerk any amount for rent or for use and occupancy which may be in dispute, and such

payments shall be held by the clerk subject to the provisions of this paragraph.

At paragraph 4 immediately after the words: “... if any, remaining with the

clerk to be paid to the landlord.”

The following text shall be inserted:

“If the tenant or occupant fails to pay the required escrow amount into court within 7

business days of the court’s order to pay into escrow, the court shall strike any jury claim,

if any, or shall deny any request for continuance by the tenant and shall set the matter

down for a speedy trial with 7 business days’ notice to the parties. Any monies expended

by the tenant or occupant pursuant to the repair and deduct statute, section one hundred

and twenty-seven L of chapter one hundred and eleven shall be deemed a payment under

this section, as will be any payment made into escrow be deemed payment of rent and

may be used in the tenant or occupant’s defense under this section. Any tenant or

occupant who asserts a defense or counterclaims under paragraph 2 of this section shall

give notice to the owner, his agents, servants, or employees, or the person to whom the

tenant or occupant ordinarily pays rent of said conditions. In opposition to the tenant or

occupant raising a counterclaim or defense, plaintiff may raise the defendant’s failure to

provide reasonable access in mitigation of damages claimed against said plaintiff and in

support of plaintiff’s action for possession. If the court finds that the tenant’s or

occupant’s claims or defenses asserted under this section are without merit and not raised

in good faith, the court shall award reasonable attorney’s fees to the landlord or lessor

seeking possession hereunder.”

Name:	District/Address:
G. Emil Ward, Esq.	21 Oak Square Avenue Brighton, MA 02135