A security deposit slip up can spoil a seemingly straightforward summary process case. So MassLandlords is holding a virtual lunch-and-learn session for housing providers (12 noon on Tuesday, July 20, 2021) where I will provide an overview of this slippery subject and answer questions.
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.
June 7, 2021:- The owner of a short-term rental property was not liable for the shooting death of a man who attended a party at the property, the Supreme Judicial Court (SJC) announced today in the case of Heath-Latson v. Styller.
The shooting occurred in May 2016 at the Lynnfield home of Alexander Styller, who let the house to a group of people as a short-term rental. Here is a link to the NECN coverage.
Ostensibly the booking was for a college reunion but via social media one of the group advertised the gathering as a “Splash Mansion Pool Party.” Approximately 100 people attended and in the early hours of the morning the local police received a call that somebody had been shot.
The estate of the decedent, Keivan Heath, sued the organizers and Mr. Styller (the homeowner) in Superior Court. The judge allowed Mr. Styller’s motion to dismiss, and the case went to the SJC. In upholding the dismissal, the SJC stated:
“A duty to protect against harm caused by the conduct of a third person arises where there is a special relationship between a defendant and a plaintiff such that the defendant reasonably could foresee that he would be expected to take affirmative action to protect the plaintiff and could anticipate harm to the plaintiff from the failure to do so…
Here, the complaint alleges no facts suggesting that the defendant had a duty to protect the decedent from wrongdoing of a third party. Although the complaint cites a finding made by a Land Court judge in a related case that that short-term rentals have significant external effects on the neighboring community and community at large, it does not allege that short-term rentals are correlated with an increase in violent crime.”
Heath-Latson v. Styller (internal citations and quotation marks omitted)
The decision reiterates the duties of a landlord and the limits on those duties.
The SJC issued another decision involving Mr. Styller today, namely Styller v Zoning Board of Appeals of Lynnfield, in which the court upheld the ZBA’s determination that the zoning bylaw prohibited short-terms rentals even before it did so expressly in 2016.
June 3, 2021:- Today the Asset Forfeiture Commission held its sixth meeting, which consisted of a presentation by Attorney Dan Alban, co-director of the National Initiative to End Civil Forfeiture at the Institute for Justice (IJ). You can watch the hearing by clicking here.
Among Attorney Alban’s recommendations:
Not simply increasing the evidentiary standard from probable cause to preponderance of the evidence/beyond reasonable doubt. Instead, remove the financial incentive for the practice.
Using criminal asset forfeiture only and abolishing civil asset forfeiture, as New Mexico has done. IJ’s goal is not to defund the police but to restore due process. “Crime should not pay,” he said, “and it is legitimate for the State to confiscate the proceeds of crime.”
Enacting anti-circumvention laws to prevent State law enforcement simply outsourcing forfeiture to their federal counterparts. Massachusetts engages in “equitable sharing” with the federal government far more than most other States (the Commonwealth is 48th in IJ’s ranking)
Requiring greater detail in law enforcement’s reporting requirements in Massachusetts in connection with proceeds of civil asset forfeiture. Attorney Alban pointing to the 2018 report which states that 6% of the proceeds went to travel and training, 7% to equipment, with 53% listed as “other.”
After the presentation, Norfolk District Attorney Michael W. Morrissey said that he agreed with the need for more information, which should be a prerequisite to any overhaul of the system in his opinion. He stated that forfeiture is necessary to deal with those who are “undercutting” the “pretty successful consumer oriented sale of drugs,” i.e. marijuana, in Massachusetts. He held up a photograph of one of the houses he had seized, stating that it had been used as a “grow house.”
DA Morrissey also stated that prosecutors stay (i.e. pause) civil forfeiture cases until the criminal case is resolved. My review of some of the 70 or so civil forfeiture cases filed under MGL c 94C, section 47, in Hampden County Superior Court over the last year did not support that assertion but that may be a result of my sample size or of my misreading the docket. I used masscourts.org and searched under Administrative Civil Actions. Readers with the time and inclination can double-check my search in Hampden Superior Court and look for cases in the Superior Court in other counties.
In response to DA Morrissey’s request for one example of an innocent owner whose property had been forfeited in Massachusetts, Attorney Alban cited the Motel Caswell case in Tewksbury, in which the owner had not only reported criminal activity but had cooperated in a sting operation. Law enforcement seized his motel anyway.
DA Morrissey pointed out that the Motel Caswell case was an instance of “equitable sharing,” i.e. local police working with the federal law enforcement and using federal law. The Malinda Harris case did not come up during the discussion.
Co-chair Senator Jamie Eldridge announced that the commission will issue its report, with recommendations, by July 31, 2021. Between now and then the commission will have one more meeting (date to be announced).
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.
June 1,2021:- On Thursday, June 3, starting at 10:00 a.m., the Massachusetts commission on civil asset forfeiture will hold a meeting that you can watch live via malegislature.gov.
Readers will recall that civil asset forfeiture is where law enforcement seizes property that they have mere probable cause to believe may have been used in connection with a crime and then the owner has to go to court to prove innocence in order to get their property back. The system lets police and prosecutors treat ordinary people like an ATM.
Does this really happen in Massachusetts? Yes, as the experience of Malinda Harris, covered in Reason magazine, illustrates:
“On March 4, 2015, police in Berkshire County, Massachusetts, seized Malinda Harris’ 2011 Infiniti G37 because her son, Trevice, was suspected of selling drugs. Although Harris had let Trevice borrow her car, the cops never alleged that he used it for drug dealing or that she knew about her son’s illegal activity. Harris heard nothing more about her purloined property until October 2020, more than five years after the seizure, when she was served with a civil forfeiture complaint that had been prepared the previous January.”
Jacob Sullum, Reason, 3.2.2021
Law enforcement seized and held Malinda Harris’s car for five years before even allowing her an opportunity to try to get it back. There is nothing extraordinary about the experience of Ms. Harris, other than the fact that she came to the attention of a nonprofit organization that was able to represent her for free. That is what makes her case exceptional.
If you think that Ms. Harris’s case is an outlier, here are some facts and figures from the Massachusetts Trial Court that speak for themselves:
In the period 2017-19 the Massachusetts attorney general and district attorneys seized more than $20 million from people who had not been accused of, let alone convicted of, any crime
In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20
Section 47(d) of chapter 94C of the Massachusetts General Laws puts the burden on a claimant to prove that the property is not forfeitable
In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property
In approximately 80 per cent of civil asset forfeiture cases in the period 2017-19 the owner made no claim
I intend to watch the commission’s hearing and to post an update soon afterwards. And I will be right on the keyboard as soon as the Judiciary Committee schedules a hearing for the bill that I wrote (H.1724) to provide free counsel in civil asset forfeiture cases.
In the meantime, for the op-ed Malinda Harris co-authored in USA Today click here. For the latest report from the Institute for Justice, titled Policing for Profit, click here.
For a Cato Institute interview with Attorney Tom Sandefur on the subject of civil asset forfeiture (with a mention of the Malinda Harris case) click here.
And lest you think that this is a libertarians-only hobbyhorse, click here to read about the ACLU’s position.
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).
Slatecovered 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.
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.
May 18, 2021:- If you like to read judges’ decisions about landlord-tenant disputes, you will be glad to learn that Volume 9 of the Western Division Housing Court Reporter (an unofficial compilation of decisions and orders issued by the Western Division Housing Court) is available online. To see it, just click here.
May 12, 2021:- A few years ago, by way of an outside section to the budget, the Massachusetts Legislature established a Civil Forfeiture Commission to “study civil asset forfeiture policies and practices in the commonwealth… [and] submit a report of its study and any recommendations, together with any draft legislation necessary to carry those recommendations into effect.”
Before reading any further, it may be helpful to know these key facts about civil asset forfeiture in Massachusetts:
In the period 2017-19 the Commonwealth, through civil asset forfeiture actions under section 47(d) of chapter 94C of the General Laws by the attorney general and district attorneys, seized assets from people who had not been accused of, let alone convicted of, any crime, including more than $20 million in money;
In 24% of cases the amount of money seized was between $2,000 and $4,999, in 25% the amount was less than $2,000, and in one case was $6.20;
The statute puts the burden on a claimant to prove that the property is not forfeitable; and
In most cases the legal fees that an innocent owner would incur in making a claim would exceed the value of the seized property.
On March 30, 2021, the Commission reconvened after a lengthy COVID-19 State of Emergency-related hiatus. Here is a link to the video of the meeting.
When listening to the chair, Majority Leader Representative Claire Cronin, you will notice that she reminds the members of the need to confine their work to the charge that the Legislature gave them. When Senator Jamie Eldridge, Senate chair of the Joint Committee on the Judiciary, suggests (at around minute 50) asking presenters to include stories from people directly affected by civil asset forfeiture, Representative Cronin says that it “may be beyond the scope of the charge.”
This is odd.
If you read the charge (follow the link above in the words “outside section”) you will see that one of the commission’s express tasks is to conduct “an analysis of any racial or socioeconomic disparities in the application of civil asset forfeiture laws in the commonwealth.” Analysis means something more than merely presenting the figures. Hearing the voices of ordinary people with first-hand experience of the practice could be very helpful in analyzing the racial and socioeconomic disparities.
In addition, the charge begins with the customary tautologous phrase, “the study shall include, but not be limited to.”*
The commission’s remit is quite broad, certainly broad enough to listen to residents who have committed no crime but have had their property seized by the government. I hope that Senator Eldridge and other members of the commission will persevere and invite voices from outside the political class to help the commission really analyze the disparate impacts of civil asset forfeiture.
Next the commission is going to look at the annual reports that District Attorneys file with the Legislature about how they spend the fruits of their seizures; seek data from the State Police about the number of forfeitures connected to cases that result in prosecutions; and ask Attorney General Maura Healy how long her office holds on to seized assets.
* I call it tautologous because the word “include” means to be part of a thing, as opposed to being the whole thing. Adding “not limited to” is redundant, in my opinion. Students of legislative drafting, please note: Nobody cares about my opinion.
In order to protect their intellectual property, Native American tribes can provide information to the United States Patent and Trademark Office (USPTO) free of charge. The USPTO refers to the information when examining trademark applications to determine whether the applicant is falsely suggesting an affiliation with a tribe.
Here is the text of a recent announcement from the USPTO that explains the process:
“The USPTO’s Native American tribal insignia database is a part of the Trademark Electronic Search System (TESS). This database records the official tribal insignias of federally or state-recognized American Indian and Alaska Native tribes (Native American tribes).
The USPTO considers the tribal insignias in its database when examining trademarks in pending applications. Tribes who choose to participate allow the USPTO to evaluate whether a trademark may suggest a false connection to their tribal insignia and refuse registration. This gives tribes the benefit of helping to protect their intellectual property and cultural heritage.
“Your tribal insignia must be adopted by tribal resolution and consist of a flag, coat of arms, other emblem, or device. Your tribe must be recognized federally or by your state. A word or words alone are not considered a tribal insignia, and are not entered in the database.”
If someone believes that a trademark applicant is misappropriating or mis-using tribal intellectual property in a way that would cause confusion or that suggests a false connection, there are steps for the tribe to take, depending on the stage of the trademark application, e.g. a letter of protest, a notice of opposition, and a petition to cancel. The link above provides details about taking those steps.
March 29, 2021:- Today the Biden administration announced that it will extend the Centers for Disease Control partial eviction moratorium to June 30, 2021.
In the meantime, here in Massachusetts housing providers who go to Housing Court to try to obtain unpaid rent and to eventually regain possession of their property are up against taxpayer-funded lawyers. Tenants obtain counsel at no charge; housing providers must pay, unless they can find a lawyer who will work for free. To misquote Animal Farm, some equal protection is more equal than others.
To read my latest article on the subject for MassLandlords, click here.
January 21, 2021:- Yesterday President Biden extended the CDC’s eviction moratorium through March 31, 2021. For the Forbes article click here. For the CDC order itself, click here.
Housing providers in Massachusetts who take tenants to court for nonpayment of rent have to file an affidavit swearing that they have not received a CDC declaration from the tenants. In any event, even if the CDC moratorium does not cover the tenants in question, under a state law that was tacked on to the budget (Chapter 257 of the Acts of 2020) in nonpayment cases judges are not allowed to enter orders for possession or issue executions if the tenants have a pending application for rental assistance.
Under Chapter 257, housing providers who send tenants notices to quit for nonpayment of rent have to also give the tenants a form stating that the tenants do not have to leave:
“THIS NOTICE TO QUIT IS NOT AN EVICTION. YOU DO NOT NEED TO IMMEDIATELY LEAVE YOUR UNIT. YOU ARE ENTITLED TO A LEGAL PROCEEDING IN WHICH YOU CAN DEFEND AGAINST THE EVICTION. ONLY A COURT ORDER CAN FORCE YOU TO LEAVE YOUR UNIT.”
They also have to send the Commonwealth a copy of the notice to quit via an online portal. Later, when filing the case in court, housing providers have to submit a sworn statement (another form) confirming compliance. This is in addition to the CDC affidavit and (if e-filing) an affidavit confirming compliance with the e-filing rules.
What does this mean in practice? Nonpayment cases involve more paperwork and take longer.
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.
October 6, 2020:- The Housing Court has issued a new standing order (SO 6-2) that will govern pending and newly-filed summary process cases if the eviction moratorium expires on October 17 (and if the Legislature does not impose a new one).
I will provide a synopsis in a future post. In the meantime, housing providers should note that:
(1) for default judgments entered after March 1, the Housing Court is allowing all motions to remove the default;
(2) for already-filed cases summary process cases the Clerks will be sending out scheduling notices for conferences with Housing Specialists;
(3) for new summary process cases, the owner/attorney who completes the summons and complaint should not insert a trial date (write TBD instead); and
(4) because the CDC moratorium order is in effect, the Housing Court will provide an affidavit for housing providers to use in order to tell the Court whether the renters gave them the declaration that the CDC order requires.
October 2, 2020:- They say a week is a long time in politics. But a whole year is not, apparently. And a whole year beyond the expiry of the state of emergency is how long the next eviction moratorium will last if the Joint Housing Committee of the Massachusetts Legislature gets its way.
Under the new proposal, which now goes to Ways and Means and the Legislature as a whole, housing providers whose renters stop paying rent would be able to apply for a tax credit to cover the arrears “subject to availability.”
The term “subject to availability” does not sound like much of a guarantee and, sure enough, this article in CommonWealth Magazine quotes one of the sponsors as saying that the “funding structure is something intentionally left out.”
So they left it out on purpose. Thank goodness they didn’t just forget.
September 28, 2020:- Another small victory for freedom of expression in Massachusetts, again from a Federal judge rather than the State courts. The key point? Housing providers should not have to promote organizations that seek to strip away their rights.
In the case of Baptiste v. Kenneally, the U.S. District Court did not grant the plaintiffs an injunction against the Commonwealth’s eviction moratorium, but did find that the regulations issued under it impermissibly burden free speech.
In April, the Massachusetts Legislature enacted Chapter 65 (the eviction moratorium) which prohibits landlords from sending notices to quit, but allows them to send missed-payment notices stating how much the tenants owe.
Then the executive branch issued emergency regulations (with no notice-and-comment period) that tell housing providers what to say in these missed-payment notices, including a link to certain “resources.” The “resources” include Massachusetts Housing Partnership, which in turn links to the advocacy group City Life/Vida Urbana, the taxpayer-funded nonprofit corporation* that campaigns for measures that are (I will put this mildly) not entirely consistent with the constitutionally-guaranteed right to possess and enjoy private property, e.g.
“We will fight for legislation to protect and expand rights for all working-class renters and homeowners, including RENT CONTROL, RIGHT TO COUNSEL, and an EVICTION SEALING ACT. We’ll actively support efforts to make corporate developers pay for these initiatives through a TRANSFER FEE on the sale of luxury development” (all caps in original).
That quote is from the page on the corporation’s website titled Our Work. All those measures are diametrically opposed to the interests of housing providers, and members of the statewide organization MassLandlords have consistently voiced their opposition to them.
On September 25, Judge Mark L. Wolf held that the State government regulations infringe the speech rights guaranteed by the First Amendment.
[T]he court finds that plaintiffs are likely to prevail on their claim that the second paragraph of 400 C.M.R. §5.03(2) unconstitutionally compels speech by requiring plaintiffs to include in any notice of rent arrearage addresses of non-governmental websites that, in turn, refer tenants to tenant advocacy groups, including City Life/Vida Urbana, with interests adverse to plaintiffs’.
The judge went on:
“[I]t is a fact that organizations like City Life/Vida Urbana provide legal services to tenants who want to resist being evicted, they also engage in other activities including, among other things, advocating for legislation that restricts landlords’ rights to evict, and litigating against them.”
The judge explained that State government should not compel landlords to endorse and promote these activities, and that compelled speech of this sort would not survive intermediate scrutiny let alone strict scrutiny.
This part of the decision represents a welcome victory for free speech in the Federal District Court. What a shame the State-level courts in Massachusetts so rarely evince a similar regard for that right.
*The corporation’s legal name is Urban Revival, Inc. and according to its Form 990 (2017) its mission/significant activities are “racial/ethnic harmony through affordable housing and economic development,” which is more succinct than (and different in tone from) the mission statement on its website:
“City Life/Vida Urbana is a grassroots community organization committed to fighting for racial, social and economic justice and gender equality by building working class power. We promote individual empowerment, develop community leaders and build collective power to effect systemic change and transform society.”
P.S. A note about my choice of image, which illustrates the idea of the mailed fist in the velvet glove. When I write about compelled speech, I like to offer a reminder about who it is, exactly, that is doing the compelling. If ever you disobey a law, you risk an encounter with agents of the only organization in society that (as Max Weber pointed out) claims a monopoly on the legitimate use of violence, namely the government. If you refuse to do what the government tells you to do, or you refuse to speak the words that it demands that you utter, eventually you will come into contact with the government’s agents, people who wear uniforms, carry weapons, and have the power to alter your condition from free to un-free and from alive to dead.
September 18, 2020:- The New Civil Liberties Alliance lawsuit against the CDC eviction moratorium order (Brown v Azar) argues, among other things, that the agency’s order flies in the face of the non-delegation doctrine. This is the doctrine that says that the legislature cannot delegate its authority to the executive because doing do would violate article 1, section 1 of the Constitution of the United States, which vests all legislative power in Congress. It is supposed to help keep each branch of government in its own lane.
I find it hard to see how this particular argument can fail.
There is no doubt that the authority to establish a nationwide eviction moratorium lies (if anywhere) with Congress. To find evidence to support this, we do not have to look very far. In fact we only have to look back as far as April 2020, when Congress passed the CARES Act, section 4024 of which established a nationwide eviction moratorium.
If any branch of the federal government has the authority to bar property owners from going to court to seek the return of their own property, which is by no means certain, it is Congress. By imposing an eviction moratorium of its own, the CDC, an executive branch agency, is usurping the power that the Constitution vests exclusively in Congress.