For nearly a century, through economic boom and bust, social progress and upheaval, and across many administrations, the Boston Housing Authority (“BHA”) has steadfastly provided “deeply affordable housing” for the City’s low-income residents. Established in 1935, the BHA currently ensures housing affordability for 58,000 residents in and around Boston. As the country continues to reckon with the COVID-19 emergency, the BHA’s mission to connect vulnerable residents to opportunities through housing has never been more urgent. This article highlights some of BHA’s efforts to support our public housing communities through the pandemic and beyond.
The challenges faced by low-income households cannot be overstated. Even before COVID-19, BHA residents—many of whom are elderly, disabled, people of color, and children—faced disproportionate levels of unemployment, food insecurity, and health risks, all of which have been amplified during the pandemic by a digital divide that threatens to isolate them from essential services, critical resources, and necessary systems of support. While local, state, and national governments grapple with the racial and economic disparities laid bare by COVID-19, BHA and other affordable housing providers have been tasked to expand their role through more front-line advocacy and direct assistance to better shelter our vulnerable residents from the impact of the global pandemic.
COVID-19 EMERGENCY RESPONSE
In March 2020, BHA responded swiftly to the public health crisis to safeguard our residents, employees, and the general public from the twin public health and economic crises:
- Because housing authorities lack the authority to cancel rent payments even during a national pandemic causing crisis rates of unemployment, to ensure that tenants can remain safely in place without fear of becoming homeless, on March12, 2020, the BHA announced its immediate suspension of all “non-essential” (i.e., not critical to public health and safety) evictions for the duration of the Massachusetts state of emergency, and later extended the agency’s moratorium to at least through the end of 2020. The BHA, in concert with Mayor Walsh and other city partners, also urged the Housing Court’s cooperation in suspending all pending and new non-essential eviction cases in light of the significant health and safety risks exposed to all during court proceedings.
- Consistent with evolving guidance, BHA implemented preventative measures to encourage social distancing and frequent cleaning and decontamination, including temporary closure of certain indoor common spaces, limitations on visitors in elderly housing, and postponement of inspections to reduce exposure and transmission risks in our vulnerable housing communities.
- Working with the U.S. Housing and Urban Development and the state Department of Housing and Community Development, BHA shifted mission-critical operations to remote and electronic platforms with streamlined and flexible documentation requirements and extended deadlines, including the processing of applications, admissions, issuance of vouchers, transfer requests, annual and interim examinations, and even housing quality inspections.
- BHA adapted interactions with residents, encouraging open lines of communication via telephone, fax, and e-mail; establishing an on-line rent payment option; providing secure drop-boxes for submission of rent and documents for households without internet access; limiting in-person transactions to locations with appropriate ventilation and space for social distancing; and ensuring important notices and information are disseminated in a manner accessible to persons with communication-related barriers including disabilities, language needs, and technology challenges.
CARES ACT SUPPORTIVE INITIATIVES
In April 2020, BHA modified many of its policies and procedures under the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act to better address the escalating loss of income due to COVID-19. For example, the BHA encouraged prompt reports of job loss and requests for minimum rent hardship exemptions, allowed unlimited, retroactive interim rent reductions for loss of income, and continued to limit out-of-court rent repayment agreements to 40% of the household’s adjusted monthly income, inclusive of the tenant’s regular rent share.
In May 2020, with COVID-19 exacerbating health issues, driving up household expenses, and worsening transportation-related barriers to accessing food and other necessities, our residents clearly needed more help. Consequently, BHA prioritized the use of its CARES Act funds not only to maintain existing operations but also to implement new initiatives to support the health, safety, and quality of life of our residents, including:
- a multi-million dollar food contract with local minority- and women- owned businesses to ensure the reliable and safe delivery of sufficient fresh foods to BHA families and seniors facing food insecurity and barriers to safe access to grocery stores.
- economic incentives to encourage landlord participation in a new homeless voucher program for families with children in Boston Public Schools.
- distribution of free laptops and tablets for residents and technology upgrades to improve connectivity to improve remote access to education, jobs, and other opportunities and resources, and to reduce social isolation.
- reconfiguring community rooms and other common spaces for the continued safe use by residents and to facilitate safe interaction within the housing community.
- direct efforts to reach and support residents, from staff distribution of food, masks, and cleaning supplies to safe and socially-distanced support of youth engagement programs, such as a multi-media project where young BHA residents filmed their experiences of the pandemic within their family and community.
- support of resident empowerment, leadership and participation in BHA policy development and planning activities through regular, facilitated virtual meetings with tenant organizations, including providing technical training, free tablets, and interpretation services.
PRESERVING AND CREATING AFFORDABLE HOUSING
Pandemic notwithstanding, the BHA has forged ahead with its plans for the renovation of all of its affordable housing facilities and pursuit of opportunities to create additional affordable housing units in the City. For example:
- Through the summer and fall of 2020, BHA has used virtual platforms to advance the permitting process for the redevelopment of its 1,100-unit Bunker Hill federal public housing site into a mixed-income community through a public-private partnership, leveraging rents from additional, new market-rent units to support the 1-for-1 replacement and conversion of the existing deteriorated public housing units. Similar initiatives are underway throughout Boston to rehabilitate and preserve the affordability of BHA’s aging public housing stock, including at Mildred Hailey in Jamaica Plain, and Mary Ellen McCormack in South Boston.
- BHA also launched “Generations BHA,” a plan to renovate and modernize BHA’s entire 3,600-unit federal elderly/disabled portfolio, including accessibility improvements, energy efficiency measures, plumbing, electrical, and fire protection. All Generations BHA units will remain under sole public ownership but convert from a public housing to a Section 8 Project-Based Voucher (“PBV”) subsidy platform.
- BHA and City of Boston recently announced the preservation of 48 “expiring-use” units at the Mercantile Wharf in the North End using Section 8 PBVs.
- A new Boston-funded municipal voucher program is anticipated to stabilize the housing of additional low-income Bostonians through a mix of project- and tenant-based rental assistance.
Even before the pandemic, the BHA provided the City’s low-income residents with much more than shelter. Today, when COVID-19 exposed a dangerous widening of historic disparities in income and access to safe and stable housing, and unprecedented levels of social isolation among low-income and elderly residents, BHA is redoubling its efforts to provide our residents with vital connections to achieve economic self-sufficiency and housing mobility, and to build a more just and equitable 21st-century society in which all families are able to meet their basic needs.
Kate Bennett is the Administrator and CEO of the Boston Housing Authority. She oversees public housing and housing choice voucher programs that provide affordable housing for more than 50,000 people in and around the City of Boston.
Joel Wool is Special Advisor for Policy and Planning for the Boston Housing Authority. Joel has supported BHA in directing state and federal COVID relief funds to critical initiatives and social equity measures. He is project lead on the new municipally- funded voucher program.
by Rebecca Tunney, Kerry E. Spindler, and Sara Goldman Curley
On April 27, 2020, Massachusetts became the latest state to enact remote notarization and witnessing through “an Act providing for virtual notarization to address the circumstances related to COVID-19” (the “Act”). The Act temporarily authorizes the affirmation, acknowledgment or other notarial acts of documents utilizing electronic video conferencing in real time. The Act will be in effect until 3 business days after the termination of Governor Baker’s declared state of emergency. See Executive Order 591.
Under M.G.L. c 222 §16, “a notary public shall not perform a notarial act if… the principal is not in the notary public’s presence at the time of notarization.” The outbreak of the novel coronavirus (also known as COVID-19), and Governor Baker’s resulting declaration of a state of emergency in Massachusetts on March 10, 2020, have made it difficult to execute documents “in the presence of” a notary public (“notary”). This has caused problems for those who need to sign documents that require notarization, either by statute or pursuant to best practice, including many estate planning and real estate documents.
Requirements for Remote Notarizations
The Act provides a critical alternative to in-person notarizations during this period of required physical distancing. The Act also permits remote witnessing if the witness’s signature is notarized, noting that the signature of any witness who participates in the remote notarization will be valid as if the witness had been present to sign in person (i.e., witnesses under a will must still qualify under M.G.L. c 190B § 2-505). The Act still requires “wet” signatures and does not authorize electronic signatures.
Under Section 3(a) of the Act, any notarial act performed by a notary appointed pursuant to M.G.L. c 222 § 1A utilizing electronic video conferencing (“remote notarization”) will be valid and effective if:
(i) The notary and each principal are physically located within Massachusetts. “Principal” is defined as any person whose signature is being notarized, including witnesses;
(ii) The notary creates an audio and video recording of the notarial act and obtains the verbal assent of each principal to do so;
(iii) The notary observes each principal’s execution of a document;
(iv) Each principal who is not personally known to the notary visually displays federal or state issued identification bearing a photograph and signature of the principal (or a passport or other government-issued identification that evidences the principal’s nationality or residence if the principal is not a US citizen) during the electronic videoconference, and transmits a copy of the identification to the notary. With respect to any document requiring notarization and executed in the course of closing a transaction involving a mortgage or other conveyance of title to real estate (hereinafter, “Closing Documents”), Section 6(b) provides that any principal who is not personally known to the notary must also display a second form of identification containing the principal’s name (specific examples of forms of identification are set forth in Section 6(b));
(v) Each principal makes the necessary acknowledgment, affirmation or other act to the notary. In addition, each principal (a) swears or affirms under the penalties of perjury that the principal is physically located in Massachusetts, (b) discloses any other person present in the room, and (c) makes such person viewable to the notary; and
(vi) Each principal causes the original executed document to be physically delivered to the notary in accordance with the notary’s instructions.
Except for Closing Documents, the notary may sign and stamp the document upon satisfaction of the preceding (i) through (vi), at which point Section 3(b) of the Act provides that the notarial act shall be complete. Since one of the requirements for completion is the delivery of the executed document to the notary, some practitioners recommend that the notary sign the document twice: first during the videoconference after the principal signs, and again when the notary receives and collates the original documents. The notary should affix his or her seal only once, on receipt of the original documents.
Upon receipt of executed Closing Documents, the notary and each principal must engage in a second recorded video conference during which each principal verifies that the document received by the notary is the same document executed during the first video conference. See Section 3(a)(vi). The principal must again affirm to being physically located in Massachusetts, disclose any person also present in the room, and make such persons viewable to the notary. Id. Having all the originals in hand, the notary signs and stamps the Closing Document during this second video conference. Id.
In each case, the notary block must recite (i) that the document was notarized remotely pursuant to the Act, (ii) the county in which the notary was located when the notarial act was completed, and (iii) the date the notarial act was completed. See Section 3(c). To avoid confusion, the notary block may include both the date and county in which the notary was located when the principal was remotely before the notary, and the date and county in which the notary was located when the notary signed and stamped the executed originals. Id.
The notary must also execute an affidavit confirming that the notary (i) visually inspected each principal’s identification during the video conference and received a copy thereof (if a principal is not personally known to the notary), (ii) obtained consent from each principal to record the proceeding, (iii) received affirmation that each principal is physically in Massachusetts; and (iv) was informed of any person present in the room, and such person’s relationship to each principal is listed on the affidavit. See Section 3(d). With respect to Closing Documents, the affidavit must address both video conferences.
Any will, nomination of guardian or conservator, caregiver authorization affidavit, trust, durable power of attorney, health care proxy or other authorization under the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) (hereinafter, collectively “Estate Planning Documents”) is considered complete when all original counterparts and the notary’s affidavit are compiled. See Section 3(e).
The notary must retain for 10 years a copy of (i) each principal’s evidence of identity (although there is no requirement to retain a copy of a second form of identification with respect to Closing Documents), (ii) the affidavit executed by the notary, and (iii) the audio and video recording of the remote notarization. See Sections 3(a)(iii), 3(d), 3(f).
Restrictions on Who Can Notarize
Only notaries who are licensed to practice law in Massachusetts or a paralegal under the direct supervision of such an attorney may use remote notarization for Estate Planning Documents and Closing Documents. If the notary is a paralegal (which is not a defined term in the Act), the supervising attorney must retain the required documents and recordings for 10 years. Other documents may be notarized by any Massachusetts notary. See Section 6(a).
The Act is the product of several weeks of analysis and negotiation, beginning almost immediately after the state of emergency was declared, among representatives from a number of bar organizations, attorneys from multiple practice areas, private industry, government agencies and Massachusetts legislators. While there was ultimately broad support for the Act in the face of the current public health crisis, many practitioners remain wary of making such a procedure permanent given the potential for abuse.
Rebecca Tunney is an associate at Goulston & Storrs, P.C. She assists individuals and families with complex estate plans involving estate, gift and generation-skipping transfer tax planning, estate and trust administration, international tax planning, charitable giving and business succession planning.
Kerry L. Spindler is a Director in the Private Client & Trust practice group at Goulston & Storrs PC, where she focuses on estate, tax, wealth transfer and charitable planning, as well as estate and trust administration. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.
Sara Goldman Curley is a partner and deputy chair of the Private Client Department at Nutter McClennen & Fish, LLP, where she assists clients on a broad range of estate planning, estate administration and trust administration matters. She currently serves as co-chair of the Trusts & Estates Section of the Boston Bar Association.