Advocates rally on the State House steps on October 31, 2023, calling for the state to abide by its right to shelter law for migrant families and for lawmakers to approve additional money for the emergency shelter system. (Photo by Sam Doran/State House News Service)

IN FRANCE, evictions are banned from November 1 to March 31 each year so that families are not put out when the weather is too cold for survival on the streets. Here in the United States, cities like Chicago and Washington, DC ban evictions during cold weather. And both New York and Connecticut have bills pending in their legislatures that would permanently ban most evictions during the winter months. 

Despite its frigid weather, Massachusetts has no such protections. Families can be, and often are, evicted here in the dead of winter, including during the holidays, with no consideration of whether they have someplace to go. 

The current absence of affordable housing alternatives in Massachusetts has been well–documented. That problem is, of course, exacerbated by a family shelter system that is at capacity and turning people away. Despite the promise in Massachusetts of a “right to shelter,” many hundreds of families remain “unhoused” or “unsheltered,” including during the harshest winter months. 

No matter what time of year, an eviction is cruel and traumatizing for those involved. A constable knocks on the door with minimal notice, moves a family’s belongings to storage, padlocks their apartment, and puts them on the street.  It doesn’t matter if there are children or infants present in the home. Nor is it relevant if the tenants are elderly, disabled, in wheelchairs, or mentally ill.

Last winter, Massachusetts courts authorized more than 1,200 evictions to go forward between November 1 and April 1. These included at least 100 evictions that were permitted between Christmas day and the first week of the New Year.

Landlords argue that it is already too hard to evict tenants in Massachusetts.  But that is not the case. If there is no lease in place, tenants can be evicted for “no cause” under Massachusetts law, meaning for no reason whatsoever, including if the landlord simply wishes to raise the rent. Certainly, there is no excuse for “no cause” evictions to take place during the harsh winter months.

“Non-payment evictions” can occur even for small amounts of unpaid rent, sometimes for as little as several hundred dollars. Evictions for balances less than available state rental assistance funding (currently $7,000 per household per year) should also be barred for the winter. If nothing else, this would encourage landlords to cooperate with rental assistance authorities to clear these balances rather than to thwart their tenants’ access to needed assistance in order to evict.

Finally, under current law, evictions can take place for even trivial lease violations, which can be treated as “cause” to evict. At Greater Boston Legal Services, where we work, we regularly see eviction cases for minor issues such as leaving a tap to drip so that a pet can get fresh water, or for using a portable washing machine when the nearest laundromat is inaccessible due to handicap or travel distance.  During winter, there should be a moratorium on “cause” cases where the tenants’ alleged “lease violation” does not present a serious risk of harm to the landlord, their property, or other residents.

Obviously, the best approach to a winter moratorium would be statewide legislation such as that proposed in New York or Connecticut. There is nowhere in the Commonwealth where the winter is not harsh. But, if legislation cannot take place quickly, local Boards of Health can act.

Life on the street, particularly for families with no access to the shelter system, is unforgiving and can be deadly.  Unhoused Bostonians who sleep in the street are ten times more likely to die than those with shelter.  Given potentially fatal diseases and the risk of hypothermia, local boards of health can and should consider declaring states of emergency that would prevent evictions over the winter.

During COVID, many courts concluded that such emergency regulations and the resulting moratoria were valid, particularly if they were time-limited and tied to findings associated with meaningful health risks.

The Massachusetts shelter system is overwhelmed and in disarray. Available affordable housing is close to nonexistent.  The least we can do is to slow the stream of winter evictions to a trickle so that families aren’t on the streets during the harshest time of year.

Gary Klein is interim litigation director and Sarah Rosenkrantz is the Skadden fellow at Greater Boston Legal Services.