Office of the Tenant Advocate: Draft legislation
This draft language of the bill will be revised in collaboration with Senator Joan B. Lovely, Representative Sally Kerans, and other legislators. The latest revision will be posted here.
We welcome comments to Coordinator (at) StopBullyingCoalition.org
The Office of the Tenant Advocate
§ An office of the tenant advocate shall be established within the Office of the Attorney General. The office shall assure that the rights of all tenants living in public or subsidized housing are protected, with the primary focus to hold landlords or housing authorities accountable for situations of hostile environment harassment.
§ Notwithstanding any other law to the contrary, the tenant advocate, or the tenant advocate’s designee, may represent, appear, intervene in or bring an action on behalf of the Commonwealth or of any tenant in any proceeding before any state or federal court, tribunal, agency, board or commission in which matters related to this chapter are in issue.
§ This legislation aims to protect tenants from hostile environment harassment by holding the landlord accountable. Hostile environment harassment is a severe form of aggression short of physical assault whereby tenants can be harmed and prevented from enjoying their tenancy and other secured rights.
§ The landlord and their agents are responsible for preventing and the landlord shall be held accountable for any bullying, group mobbing, or institutional mobbing; including bullying by the landlord and their agents; by individual tenants; and by groups of tenants; and for protecting all targets, both individuals or groups.
“Covered residential developments”— To be defined.
“Hostile environment harassment”—is unwelcome conduct creating a situation that makes it difficult or impossible for victims to have the peaceful enjoyment of their residency. It exists when a person was subjected to unwelcome spoken, written, or physical conduct; and the conduct was sufficiently severe or pervasive as to interfere with or deprive the victim of his or her right to use and enjoy the housing or to exercise other rights. A determination of whether this standard has been met is to be based on the totality of the circumstances. Whether a hostile environment harassment violation has occurred is a fact-specific inquiry.
(A) Factors to be considered to determine whether hostile environment harassment exists include, but are not limited to, the nature of the conduct, the context in which the incident(s) occurred, the severity, scope, frequency, duration, and location of the conduct, and the relationships of the persons involved.
(B) Neither psychological nor physical harm must be demonstrated to prove that a hostile environment exists. Evidence of psychological or physical harm may, however, be relevant in determining whether a hostile environment existed and, if so, the amount of damages to which an aggrieved person may be entitled.
(C) Whether unwelcome conduct is sufficiently severe or pervasive as to create a hostile environment is evaluated from the perspective of a reasonable person in the aggrieved person's position.
(b) Type of conduct. Harassment can be written, verbal, or other conduct, and does not require physical contact.
(c) Number of incidents. A single incident of harassment may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment.
“Peaceful enjoyment” or "Quiet enjoyment" —every tenant has the right to enjoy the use of their home and common spaces without interference. The landlord or the housing authority is legally responsible for assuring the peaceful enjoyment of all tenants.
“Bullying”—Bullying uses any mode of communication to hurt and demean the target or victim. It is aggression and an effort to control that is used to make the target do, or not do, the bidding of the perpetrator. An individual or group can mobilize members of the community to use gossip, social pressures, and isolation as part of a bullying effort. Bullying harms and controls the victim and takes away their rights—dignity—self-respect—health—and well-being. Bullying takes away the right to peaceful enjoyment.
“Mobbing or group bullying”—consists of a group or community harassing and bullying a victim, including to get rid of them.
The concept of "mobbing" developed in the study of birds and other animals, and describes cooperative and aggressive behavior against a real or perceived threat. Thus, a flock of crows will attack and harass a hawk, forcing it away.
"Institutional mobbing"—consists of a group or the community harassing and bullying one or more victims, including in order to get rid of them that is initiated, condoned, or ignored by the landlord or their agents. Institutional mobbing is almost identical to hostile environment harassment.
“Landlord”— the owner of subsidized housing, or the housing authority for public housing; including all their agents.
Janice Harper on Mobbing; https://stopbullyingcoalition.org/harper-mobbing This short analysis by an anthropologist with expertise in the subject of mobbing is essential reading.
Office of the Attorney General Advisory: All Tenants Have a Right to Be Free from Harassment and Intimidation, April 11, 2018.
The Attorney General is empowered to act to protect the rights of a victim of bullying and mobbing, including under the authority of MGL c.12 Section c. 12, §§ 11H-J and M.G.L. c. 151B, § 4(4A).2
Section 11H. (a)(1) Whenever any person or persons, whether or not acting under color of law, interfere by threats, intimidation or coercion, or attempt to interfere by threats, intimidation or coercion, with the exercise or enjoyment by any other person or persons of rights secured by the constitution or laws of the United States, or of rights secured by the constitution or laws of the commonwealth, the attorney general may bring a civil action for injunctive or other appropriate equitable relief in order to protect the peaceable exercise or enjoyment of the right or rights secured. Said civil action shall be brought in the name of the commonwealth and shall be instituted either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the person whose conduct complained of resides or has his principal place of business. MGL c.12 Section c. 12, §§ 11H
FR–5248–F–02 Quid Pro Quo and Hostile Environment Harassment and Liability for Discriminatory Housing Practices Under the Fair Housing Act, Final Rule published in the Federal Register on September 14, 2016, CFR Citation: 24 CFR 100, p. 63075 This document contains responses to many questions and concerns from landlords and others.
Report of the Commission to Study Ways to Prevent Bullying of Tenants in Public and Subsidized Multi-Family Housing; Chapter 2 of the Resolves of 2016. Commonwealth of Massachusetts (2017)
Jerry Halberstadt and Marvin So, Statewide Survey on Bullying of Tenants in Public and Subsidized Multifamily Housing.
Jerry Halberstadt, To Stop Bullying: Legislative Remedies to Protect Elderly and Persons With Disabilities in Subsidized and Public Housing (Based on the Minority Report of the Commission on Bullying). 2018