EVICTION MORATORIUM EXTENDED THROUGH JULY 2021

June 24, 2021:- President Biden has extended President Trump’s eviction moratorium again. The Centers for Disease Control (CDC) announced that the moratorium will remain in effect until the end of July 2021.

For the order itself click here.

For an opinion piece from the Cato Institute regarding the unconstitutionality of the CDC order, click here.

https://www.whitehouse.gov/

Asking the Legislature to follow the money (i.e. our money)

June 2,2021:- Where is the $12 million of public money earmarked for the Eviction Diversion Initiative actually going?

Finding out is harder than you might think because the body in charge of distributing the money (the Massachusetts Legal Assistance Corporation) says that it is not subject to the Public Records Law. So on behalf of MassLandlords, I asked the Legislature to investigate.

To learn more, you can read my article in the MassLandlords newsletter by clicking here.

Photo by Pepi Stojanovski on Unsplash

How will Beacon Hill respond to rising rents?

May 28, 2021:- Rents are rising again in the United States, according to Fannie Mae as reported by Bloomberg.

This affects everyone, not just renters. Why? Because, as this article in the Wall Street Journal points out, it contributes to inflation:

“Higher rents could play a role in an anticipated rise in inflation, unleashed by waves of stimulus checks, low borrowing rates and pent-up demand after months when the pandemic damped consumer spending. Rent accounts for about one-third of the consumer-price index, which economists expect to tick higher in the months ahead.”

Will Paker, “Apartment Rents Rise; Perks, Discounts Fade: Covid-19 vaccine rollout, higher employment bring more people back into cities looking to rent,” Wall Street Journal (April 24, 2021). Paywall.

Talk of inflation always makes me think of Berlin, of which more below.

Why are rents rising? I do not pretend to be an economist but I suspect that the governmental response to COVID-19, e.g. eviction moratoria, might have something to do with it. After all, if you want to make something more expensive, you make it scarce.

The effects of rising rents on renters – known to politicians as “voters” – are obvious and unwelcome. How the politicians will respond to the predicament of these voters is less obvious. But were I a betting man, I would remember that the number of voters who are renters is vastly greater than the number of voters who are landlords, and put money on the politicians doing something that panders to renters. Sadly, as the Duke of Wellington once pointed out, something is usually the wrong thing to do.

Here in Massachusetts, I expect that lawmakers will enact new measures to supplement the laws that they enacted during the State of Emergency, measures that on the face of it look friendly to renters and not so friendly to landlords. Even if those laws helped cause rents to rise (the phenomenon that actually hurt renters) they will opt for more of the same.

I now refer to this approach to policymaking as the Father Ted Fine-Tuning Approach. Click here to see what I mean.

If they were trying to drive you out of business, what would they do differently?

What proposals have lawmakers tossed into the legislative hopper so far? At the start of the session State Representative Mike Connolly, a Democrat and member of Democratic Socialists of America, sponsored a bill to cancel rent, HD.4072.

That particular bill seems to be in limbo, but another of Representative Connolly’s bills, H.1378, is moving along. It would enable towns and cities to impose rent control. Lest owners try to avoid rent control by taking their units off the market, Representative Connolly has another bill that would allow municipalities to impose excise tax on units that are vacant for more than 90 days (H.2852).

Representative Connolly’s bills reflect the mood of the Boston chapter of Democratic Socialists of America, which considers rising rents, along with evictions, something to “fight.” The Boston DSA site states that its Housing Working Group is

“concerned with organizing around one of our most fundamental rights — the right to a stable and affordable home. In Boston this right has come increasingly under attack as rent prices skyrocket, rising by 25% in the last five years. The Housing Group works closely with City Life Vida Urbana, a local tenants rights organization, as well as other community groups, to fight rent increases and evictions in the neighborhoods where these trends are most acutely felt.”

So in answer to the question I get asked from time to time by landlords in Massachusetts, “Are they trying to drive us out of business?” the answer is a qualified yes. If by “they” you mean state legislators, I do think some of them are trying to drive landlords out of business. Those who are committed socialists wish to bring real estate, including rental properties, under government control.

The first draft of the Democratic Socialists of America 2021 platform states that:

“As socialists we ultimately believe in the abolition of capitalism and the creation of a democratically run economy that would provide for people’s needs without the distortion of the profit motive, and we support economic regulation that moves us closer to that vision.”

Not surprisingly then, one of the party’s medium-term goals is to:

“Nationalize and socialize (through worker and community ownership and control) institutions of monetary policy, insurance, real estate, and finance.”

That is on page 4, under the title Economic Regulation.  On pages 9-10, under the title Housing, the Democratic Socialists of America announce that:

“We seek to use this [COVID-19] crisis to build on the insurgent tenant movement and further decommodify housing and land. This can be done through canceling rent, closing eviction courts, and, as landlords exit the market, using State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.”

In this way the first draft of 2021 platform of Democratic Socialists of America offers a clear answer the question “Are they trying to drive us out of business?” Yes, they wish to use the COVID-19 crisis to cancel rent, close eviction courts, “and, as landlords exit the market, use State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.” Their words, not mine.

As the long-term demand, they want “democratically controlled, publicly run housing everywhere.” The medium-term demand?

Pass a universal tenants bill of rights that includes:

  • Right to renew your lease
  • Universal rent control
  • Right to organize a tenants’ union in your home
  • Universal right to counsel in housing court

Organizing a tenants union, or anything else, will pose a challenge if the Democratic Socialists achieve one of their medium-term Economic Regulation demands namely the “public ownership and control of social media platforms.” With the government controlling social media, good luck organizing anything more than the occasional day-trip to the tractor factory for the Young Pioneers.

But kudos to Democratic Socialists of America for their candor about wanting to use the COVID-19 crisis to drive landlords out of business and, more generally, “economic regulation that moves us closer to that vision.” What vision? The abolition of capitalism.

Onward to Berlin

When DSA legislators promote measures that a reasonable objective observer with some experience of rental housing, markets, and human nature would consider antithetical to the continued private ownership of rental properties, those legislators are not being naïve. They are being dedicated. In contrast, when non-DSA legislators – rank and file Democrats of the go-along-to-get-along variety – endorse these measures, naivete is the most generous word to describe them with.

Bills that are already popular among non-DSA Democrats in the State House are H.1434, which would effectively prohibit evictions for non-payment of rent, and H.1426, which would give tenants the right of first refusal if the owner tries to sell (thereby automatically delaying by months any sale to someone other than the tenants or the organization of their choice). This will make the business of being a landlord more difficult, and it is important to remember that this not a bug but a feature.

What’s next? How will they get from rendering the business of being a landlord increasingly difficult to making it completely non-viable? That is, after all, the avowed goal of Democratic Socialists of America. Perhaps they will look to Berlin.

As I mentioned, at the mention of inflation my mind turns to Berlin (here’s why) so I looked into what left-leaning Berliners are up to nowadays. As luck would have it, some of them are promoting a measure that I am sure the Democratic Socialists of America would approve of, namely the expropriation of rental properties. Expropriation is where the government takes private property (in the US we refer to it as eminent domain).

Slate covered this campaign recently, putting in the context of rising rents:

“Data from Guthmann Estate, a real estate company in Berlin, shows that the median rent in the city rose by more than 70 percent between 2012 and 2021.”

Here’s a link to an article on the same subject titled “We Want a Society Without Landlords” in Jacobin magazine, a publication that describes itself as “a leading voice of the American left, offering socialist perspectives on politics, economics, and culture.” The authors explain that seizing 240,000 units of private housing is not really all that radical, which alone makes it is well worth a read.

Socialists in Berlin want to stop landlords from raising the rent by stopping them from being landlords. Like many ideas that people tried in the 20th century, it has the allure of simplicity.

To solve the rising-rent problem in Massachusetts, perhaps DSA will try to put a question on the ballot to take by eminent domain rental units that have remained vacant for 90 days or more (or just take all rental units, which would be more efficient).

I think not, but not because I doubt their candor. Democratic Socialists of America are admirably up-front about their wish to use the COVID-19 crisis to cancel rent, close eviction courts, “and, as landlords exit the market, use State action to acquire properties and leveraging disinvestment to convert thousands of homes into publicly and democratically controlled land/housing.”

Why would they not put expropriation on the ballot?

Because it is not necessary. All they have to do carry on making it harder and harder for private property owners to provide rental housing and before long those owners will, as the Democratic Socialists of America predict, exit the market. Onward to Berlin. East Berlin, that is.

Photo by Aneta Pawlik on Unsplash

New lawsuit against CDC

May 19, 2021:- The Florida Association of Realtors® and R.W. Caldwell, Inc., have filed a complaint in the United States District Court in the Middle District of Florida, Tampa Division, asking the court to set aside the partial eviction moratorium that the Centers for Disease Control and Prevention (CDC) imposed, first at the direction of President Trump and then at the direction of President Biden.

One judge did just that quite recently. In early May Judge Dabney Friedrich set aside the partial eviction moratorium but stayed the order, i.e. put it on hold, while the Biden administration appeals the case. This means that the CDC partial eviction moratorium remains in effect for the time being.

This new complaint asks for the same kind of relief that Judge Dabney ordered earlier in the month.  I quote two paragraphs of the complaint that get to the heart of the matter.

Paragraph 40 of the complaint states:

“The Eviction Moratorium contains no findings and relies on no evidence to support its stated assertion that Covid-19 will spread between states or United States territories if landlords are permitted to exercise their contractual rights to evict tenants who fail to make rent payments as required by their leases.”

That is why I call it a partial eviction moratorium, by the way. It only covers some evictions, i.e. nonpayment cases. Why the tenants in that kind of case are more likely than tenants in other sorts of cases (e.g. those being evicted for, say, criminal activity) to contract and transmit COVID-19 is not clear, at least not to me.

And the CDC certainly did not issue a moratorium on moving house. House sales have done very well during the emergency, I believe. Lots of people are buying and selling, moving from place to place. The CDC did not try to ban residential real estate transactions.

Getting to the constitutional argument, paragraph 5 of the complaint states:

“The CDC predicates this unprecedented action on its statutory authority to prevent the interstate spread of disease, but that authority does not make the CDC the nation’s landlord-in-chief any more than it places the CDC in charge of citizens’ social media or the national minimum wage. Were it otherwise, then Congress would have impermissibly turned over its lawmaking authority to an unelected administrative agency. The United States Constitution and its nondelegation doctrine prevent Congress from doing so. Indeed, the Constitution does not authorize Congress or the CDC to interfere with the purely local matter of tenants’ occupancy of individual rental properties.”

What’s the problem with an unelected administrative agency exercising the lawmaking authority that the Constitution grants exclusively to the Congress? Why is it unconstitutional for unelected government employees to legislate?

The reason has to do with democratic accountability, an essential requirement for a self-governing republic of free people, and stripped of legal jargon it is this: We can’t throw out those rascals. The only rascals We the People can throw out are the rascals we elected in the first place. Unelected rascals are beyond our reach.

What will happen to the CDC’s partial eviction moratorium? Stay tuned.

Federal eviction moratorium extended

December 28,2020, Washington, DC:- Yesterday President Trump signed the Consolidated Appropriations Act for 2021 (H.R. 133) which, among many other things, extends the federal Centers for Disease Control (CDC) moratorium on some evictions. The CDC eviction moratorium is now set to expire January 31, 2021.

For the House summary, click here and scroll down to page 22.

Do we still need an eviction moratorium? Define “eviction.”

July 30, 2020:- Perhaps I am a slow learner. But I think I just realized something important about the eviction moratorium.

Those following the Matorin v. EOHED case challenging Chapter 65 (the eviction moratorium) will know that earlier today the Superior Court held a hearing on the plaintiffs’ motion for a preliminary injunction.

What struck me while I was watching the oral argument was the size of the gap between the law’s supposed purpose and its actual effect. Then I realized that there is a gap between the two sides over the nature of the very thing they are arguing about, i.e. evictions. I will explain what I mean in a moment, but first a very brief explanation of a key term, namely “execution.”

Execution

In Massachusetts, only a judge can evict a tenant and award the housing provider possession of the rented premises.  If, after trial, the judge decides to award the housing provider possession, the housing provider has to wait 10 days and then ask for a document called the writ of execution.   This is the document that authorizes the sheriff or constable to physically remove the renters and their belongings. When the sheriff does so, it is called levying.

When non-lawyers think about evictions, what they have in mind is the event called levying the execution. It is quite rare, fortunately.

Before the constables or sheriffs can even get their hands on an execution to levy, the renters can ask the judge for a stay, i.e. a pause or delay. The law allows judges to stay execution for up to six months (12 months, if the renters have disabilities or are age 60+).

Rule 13  of the Uniform Rules of Summary Process lays out the steps.

Now back to the argument over Chapter 65.

How to stop executions

The proponents of Chapter 65 argue that the Legislature enacted the eviction moratorium in order to stop people being made homeless during the COVID 19 pandemic. If that had indeed been the real purpose, the Legislature could have achieved it by banning the courts from issuing executions and prohibiting the sheriffs from levying on any executions already issued. Here is the bill the Legislature could have enacted:

In any summary process case, the court shall not issue execution, and no person shall levy execution, until 45 days after the end of the state of emergency.

But the Legislature chose not to do that. Instead of banning the thing that non-lawyers think of as evictions (levied executions), it banned housing providers from even getting into court. And that, in turn, bars access to the trained Housing Court mediators who resolve disputes and help the parties work out payment plans.

If the Legislature and Governor had defined the problem they were trying to solve, they would not have created the unholy mess that will confront so many housing providers and renters when the moratorium finally ends. Defining problems before attempting to solve them is a big part of the job. And, unlike some of the housing providers I represent, the legislators are actually getting paid. Legislative salary moratorium, anyone?

Decision?

As for the hearing in the Matorin case, the judge took the matter under advisement, which means that he will issue his decision at a later date. To stay up to date, and to read more about the case from Attorney Richard Vetstein, who is one of the two lawyers representing the Matorin plaintiffs,  click here.

 

All work and no pay: Cancel the rent cancellation bill

July 27, 2020:- What if the law forced you to go to work every day and then, if the boss refused to pay your wages, prohibited you from suing? Imagine having to provide the service, and not being able to make the other side stick to their end of the deal.

delivery man wearing a face mask carrying boxes
Photo by Norma Mortenson on Pexels.com

All work and no pay isn’t fair. But that’s the situation confronting many housing providers in Massachusetts right now. The law requires them to house their tenants even if the tenants can’t — or won’t — pay rent.

As if that weren’t bad enough, a bill that would flat out cancel the rent had garnered much support in the Massachusetts State House. Even as I write, an effort is underway to tack the proposal (together with the tried-and-failed policy of rent-control) onto another bill by way of amendments.

But it has not become law yet.

There is still time to tell your state representatives and senators what you think. The deadline is 12 noon tomorrow, Tuesday, July 28, 2020.

To submit your testimony on H4878/S2831 click here.

Governor extends eviction moratorium, and “strongly encourages” tenants to pay rent

July 21, 2020:- Today Massachusetts Governor Charlie Baker informed the Legislature of his decision to extend the eviction moratorium to October 17, 2020. His letter includes the folowing:

I am aware that the extension I am declaring today will impact many small landlords who rely on rental income to pay their own expenses.  I strongly encourage tenants to continue to pay rent, and homeowners to make their mortgage payments, to the extent they are able while the moratoria remain in place.  The Baker-Polito Administration already has made available $20 million in emergency rental and mortgage assistance to help lower-income tenants and homeowners make their housing payments.  Between now and October 17, my administration will assess whether additional federal and state resources should be made available for this purpose.  We also will be working closely with our colleagues in the judicial branch to ensure that when evictions proceedings resume there are programs in place to help tenants pay their rent and avoid eviction.

Photo by Pixabay on Pexels.com

What began as an emergency stop-gap in the Spring will continue at least until the Fall.

Senate to consider extending and expanding eviction moratorium

June 15, 2020:-  Before the Massachusetts Legislature imposed an eviction moratorium, Congress enacted a limited moratorium of its own. It lasts 120 days and is confined to properties participating in federal programs including, at the very outer edge, properties with federally-backed mortgage loans. CARES Act, section 4024 (page 574 of the PDF). The 120-day period started running on March 27 so expires on July 25. Democrats in Congress want to not only extend the duration of the moratorium but also expand it to cover all rental properties.

Legislative largesse

The bill that passed the House (where the Democrats have a majority) and is currently before the Senate (where the Republicans have a majority) is titled the HEROES Act.

The name is apt. Just reading the bill requires a degree of fortitude bordering on heroism. It consists of 1,815 pages that explain how the federal government should go about spending $3 trillion (trillion with a T), a sum that even nowadays seems quite a large amount of money. According to the Endowment for Human Development, a stack of one trillion dollar bills would reach almost 68,000 miles. So a stack of three trillion dollar bills would reach 204,000 miles. Driving that distance at 60 mph would take 3,400 hours, i.e. 142 days, and that’s with no rest stops (bad idea). No wonder it took Congress 1,815 pages.

Where would the proposed $3 trillion go? The potential recipients are legion, so I will name but a few that may prove of particular interest to Bay Staters.

For example, $50 million would go to the Legal Services Corporation (LSC) which every year helps fund entities in Massachusetts such as Community Legal Aid (CLA) and Northeast Legal Aid (NLA) to the tune of about $1.5 million and $1 million respectively. If you are a housing provider who has ever had to take tenants to Housing Court for, say, nonpayment of rent (back when housing providers were allowed to do that sort of thing), you may be familiar with CLA and NLA. They are the attorneys who represent the tenants. Similarly, the Volunteer Lawyers Project of the Boston Bar Association also receives LSC funding of approximately $2 million per year, which is exactly the kind of voluntarism I could volunteer for.

Under the HEROES Act another $4 million would go to the Fair Housing Organization Initiative. Earlier this year, HUD (which administers the program) awarded $300,000 to Community Legal Aid (yes, the same Community Legal Aid that got $1.5 million from the federal Legal Services Corporation). HUD also doled out $300,000 to Massachusetts Fair Housing Center, Inc. That’s the corporation that is suing Massachusetts in federal court over the Lead Paint Law, which it alleges discriminates against families with children. For a list of reasons why that lawsuit represents a less-than-judicious use of taxpayers’ money and everyone’s time, click here.

In addition to spreading the wealth around, the HEROES Act would prohibit evictions.

A year-long, nationwide eviction moratorium

In the PDF version of the HEROES Act, the provisions about the eviction moratorium start at page 961 in section 110203 of Division K, Title II (titled “Protecting Renters and Homeowners from Evictions and Foreclosures).

What would this part of the bill do if the Senate approves? For a period of 12 months after enactment, it would prohibit “legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges.”  The term “covered dwelling” means dwellings covered by section 802 of the federal Fair Housing Act, i.e. all rental units.  Yes, all rental units in the country, even in those States that have addressed the issue — and continue to do so — in their own way.

Federalism 101

Whether judicially, legislatively, or by executive order, many of the States have enacted eviction moratoria of some kind and duration. In a country of approximately 330-million people across 50 States, there has been some variety.  Utah imposed a ban whereas Oklahoma did not. New York extended its ban whereas Colorado did not. California? We’ll see. May Congress supplant these various State-level approaches, replacing them with a one-size-fits-all rule?

Congress does not have the authority to make laws governing absolutely each and every form of human activity that may occur in the United States. Its powers are limited, believe it or not (and for many in Congress it seems to be “not”).

As James Madison explained: “[T]he proposed government cannot be deemed a national one since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residual and inviolable sovereignty over all other objects.” Federalist No. 39. Sovereignty is shared, the Constitution circumscribes the powers of Congress, and the Constitution does not give a articular power to Congress it remains with the States. The lines of demarcation may be blurry but they are not invisible.

Among the enumerated powers of Congress is the power to regulate interstate commerce. This is what allows Congress to legislate in the area of housing so as to reduce invidious discrimination. Activities within a singe State that may have a a substantial and harmful effect on interstate commerce can come within the clause’s scope, e.g. racial discrimination in housing.

james madison 1
James Madison

Flexible it may be, but the Commerce Clause has its bounds. For example, it does not extend beyond economic activity to economic inactivity, as the Supreme Court held in NFIB v. Sebelius. In an area where the States are already acting separately, and where there is no invidious racial discrimination or other activity that has a substantial and harmful effect on interstate commerce, the answer should be no.

That seems to be the opinion of Senate Republicans at this point, who consider the bill a liberal wish list. When the GOP-majority Senate takes up the HEROES Act in July (or perhaps August according to this article) it seems unlikely to vote to extend and expand the eviction moratorium. But, as we have all learned in the past few months if we didn’t know it already, sometimes changes come thick and fast.

Conclusion

The CARES Act’s eviction moratorium applies to housing with some kind of federal connection, albeit tenuous in some cases. Each State has supplemented that federal law with a response of its own, tailored to local needs. Those State-level laws may be unpalatable and arguably unconstitutional, e.g. Chapter 65 in Massachusetts. But they are examples of federalism in action, and typify the way our system is supposed to work. Expanding the federal moratorium is both unnecessary and unconstitutional.

If you believe that the Senate should reject the effort to impose a nationwide, year-long moratorium on evictions, please call your U.S. Senators and let them know.

 

Governor Baker, let the eviction moratorium expire

June 11, 2020:-  Here’s a grip-and-grin photo of Governor Charlie Baker and yours truly back in 2018 (I’m the one with the beard). If I met the Governor again today and could ask him one thing, it would be to let the eviction moratorium expire.

Why? Because, as I point out in my latest article for MassLandlords, the eviction moratorium is making affordable housing even scarcer. It encourages housing providers to keep vacant units off the market. For the full text of the article, click here.

PV with Governor Baker_August 11 2018 (2)
Peter Vickery, Esq. and Gov. Charlie Baker