COVID-19: Maine Governor Limits Evictions; Urges Banks and Credit Unions to Stop Foreclosures

On April 16, 2020, Maine Governor Janet Mills issued Executive Order 40 FY 19/20, which, together with The Maine Supreme Judicial Court’s Pandemic Management Order issued on March 18, 2020 (the law court order), is intended to keep individuals in their current residences and businesses in their current operating locations during the public health emergency caused by COVID-19. To that end, the governor’s order prohibits unauthorized evictions, suspends the issuance or service of writs of possession, and increases the notice period for termination of tenancy in certain circumstances until 30 days after the termination of the COVID-19 state of emergency. In conjunction with the issuance of the order, in separate letters to the Maine Bankers Association and the Maine Credit Union League, the governor urged lenders to halt all foreclosure actions in Maine.

Unauthorized Evictions

Finding that an increased risk of illegal evictions exists due to court closures under the law court order, the governor’s order provides that no landlord or landlord’s agent may attempt to evict a tenant by means not authorized by law during the state of emergency. While unauthorized evictions are already prohibited under Maine law, the governor’s order clarifies that this limitation is to be enforced by law enforcement. Pursuant to 37-B M.R.S. § 786, failure to comply with a just and reasonable order of a law enforcement officer relative to enforcement is a Class E crime.

Writs of Possession Suspended

The law court order states that the courts will not hear or schedule any forcible entry and detainer actions after March 18, 2020 until at least May 1, 2020. The governor’s order provides additional restrictions by ordering that writs of possession that have already been authorized in a forcible entry and detainer action prior to March 18, 2020, may not be issued or be served on any tenant for writs that were authorized solely by reason of:

• Nonpayment of rent when the delinquency was no greater than two months
• Termination of a tenancy at will upon 30 days’ notice pursuant to 14 M.R.S. § 6002
• Expiration of a lease agreement

The governor’s order expressly states that it has no effect on a tenant’s obligation to pay delinquent rent or rent for the period of the tenant’s continued occupation of the property.

The suspension does not apply to writs that were issued because the tenant:

• Posed an imminent risk of harm by threatening or assaulting behavior toward the landlord, another tenant, neighbor, or other person
• Posed an imminent risk of harm to the property of the landlord, other tenant, neighbor, or other person
• Violated health, sanitation, fire, housing, or safety laws
• Engaged in an illegal or prohibited trade or activity on the property
• Posed a significant nuisance to the landlord, another tenant, or a neighbor
• Caused substantial unrepaired damage to the premises

Before a writ may be issued for one of these six reasons, the governor’s order requires the landlord to first submit evidence in writing to the court, subject to rebuttal by the tenant within 48 hours of receipt. No writ of possession shall be issued except by further order of the court.

Unless the court grants an exception under the process described in its order for “extraordinary and urgent circumstances,” courts will not hear or schedule any forcible entry and detainer actions at least until after May 1, 2020.

The governor’s order would appear to apply only to the issuance or service of Writs of Possession issued pursuant to FED actions, as opposed to writs issues in foreclosure actions. This interpretation is supported by language in the governor’s order that “[t]he suspension provided by this section applies to those tenants whose writs of eviction were authorized solely for reason of nonpayment of rent and whose delinquency was no greater than two months duration; or pursuant to a 30-day without-cause notice under 14 M.R.S. §6002; or for expiration of a lease agreement.

Increased Notice Periods

The order also provides that for a landlord “whose only reason for evicting a tenant is nonpayment of rent and such late payment is due to loss of income caused by COVID-19,” the 30-day notice of termination of a tenancy at will, 14 M.R.S. § 6002, is extended to 60 days and the seven-day notice of termination of tenancy for nonpayment of rent, 14 M.R.S. § 6002(1)(C), is extended to 30 days.

Maine Lenders Urged to Halt Foreclosures

In letters sent to the Maine Bankers Association and the Maine Credit Union League on April 16, 2020, Governor Mills urged lenders to avoid initiating residential and commercial foreclosures and to pause any foreclosures in progress whether or not the mortgages involved are subject to the federal foreclosure moratorium. The letters request that special consideration be made for mortgages secured by residential and commercial rental property, in which tenants are struggling to pay rent.

For questions on these orders, please contact firm attorneys Rebecca Greenfield or Peter Kenlan.

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