Tag: eviction moratorium

eviction moratorium, housing court, landlord tenant, law

The case for not enacting a new eviction moratorium

September 7, 2021:- Massachusetts legislators are considering H. 1434, which would establish a moratorium on non-payment evictions. It would not ban all evictions, only a subset of evictions “where the plaintiff’s complaint is based upon or includes any claim for rent or use and occupancy.” The bill has an emergency preamble, and it’s supposedly related in some way to COVID-19.

Nothing can justify another ban on people regaining possession of their property from those who are occupying said property without paying rent. The article in this week’s Massachusetts Lawyers Weekly on that subject quotes me, accurately:

“In January, the pandemic was killing about 3,000 people a day, notes Amherst attorney Peter Vickery. But as vaccines have been distributed, the death rate has declined dramatically, down to about 150 people a day.

Vickery references the New Jersey law that prohibits motorists from pumping their own gasoline. There may be some very real concerns that led to the passage of that law, but there is an ‘extraordinary mismatch between the threat and the policy.'”

I mis-stated the current daily death toll, which is now around 400-500, up from about 200 per day in July but still a far cry from the January 2021 average of 3,000. Yesterday (September 6, 2021) in the United States there were 246 deaths from COVID-19, according to the CDC. For the CDC’s tracker of daily deaths from CIVID-19, click here.

NJ ban on amateur gas-pumping

But what does the New Jersey law against pumping your own gas have to do with eviction moratoria? For readers who are curious, please consider the findings that NJ legislators included in the statute so as to justify the self-pumping ban (NJSA 34:3A-4), which findings include:


“(d)… [R]isks of crime and fall-related personal injury, which are a special burden to drivers with physical infirmities, such as the handicapped and some senior citizens;

(e) Exposure to toxic gasoline fumes represents a health hazard when customers dispense their own gasoline, particularly in the case of pregnant women;

(f) The significantly higher prices usually charged for full-service gasoline in States where self-service is permitted results in discrimination against low income individuals, who are under greater economic pressure to undergo the inconvenience and hazards of dispensing their own gasoline.”

These are all plausible risks. But do they really justify banning amateurs from filling our own gas tanks and leaving the job to trained pump attendants? No. In the rest of the United States, people manage to pump their own gas without triggering the Apocalypse. Similarly, nor does the potential for spreading COVID19 justify a ban on people regaining possession of their own property from those who are not paying rent.

As the Supreme Court of the United States held recently regarding the Biden administration’ unconstitutional non-payment eviction moratorium:

“The moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership—the right to exclude.”

Alabama Ass’n of Realtors v. Dep’t of Health & Hum. Servs., No. 21A23, 2021 WL 3783142, at *4 (U.S. Aug. 26, 2021).

Massachusetts legislators should read this decision and, before criticizing it, think about the Court’s reasoning.

Photo by Kyle Glenn on Unsplash

Our right to own property is one of the many rights that the State and federal Constitutions guarantee. It is not untrammeled, but it is is not something that legislators can violate on a whim. Here in Massachusetts, the Supreme Judicial Court has held:

“[S]ubstantive due process requires a statute affecting a fundamental right to be narrowly tailored to achieve compelling government interests.”

Sharris v. Commonwealth, 480 Mass. 586, 593, 106 N.E.3d 661, 668 (2018). Is the right to exclude non-paying tenants from your property a fundamental right? If it is, the court should apply strict scrutiny and require the Commonwealth to show that the law is narrowly tailored to further a compelling government interest.

Even if the court were to apply the weaker intermediate-scrutiny test, the non-payment eviction moratorium should fail. To pass this test, the Commonwealth would have to show a reasonable, proportional fit between the law and an important governmental interest. Here, what connection could there be between a ban on non-payment evictions and the governmental interest, i.e. slowing the spread of COVID19?

The reason that the CDC gave for its non-payment eviction moratorium — and that moratorium advocates continue to echo — was that “evicted renters must move.” They may move into “shared housing or other congregate settings” (of course, they may be moving from shared housing or other congregate settings, but no matter). And their relocation may even entail “crossing State borders.”

What H. 1434 would not do

Surely, if people moving from one place to another is such a risk enhancer, the Legislature should put a stop to it altogether.

But does the Legislature wish to ban all of us, renters and homeowners alike, from moving house? No, it is not trying to prevent people who own their own homes from selling them and going to live somewhere else.

Does the Legislature wish to ban tenants from relocating of their own accord? No.

Does the Legislature wish to ban all evictions? No.

Does the Legislature wish to ban judges from evicting tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment? No.

For this bill to be a good fit, there would have to be some evidence that tenants who do not pay rent are more likely to contract and transmit COVID-19 than the tenants who are using the premises for illegal purposes, causing a nuisance, or interfering with other tenants’ quiet enjoyment. And that is just silly.

Yes, deaths from COVID-19 are higher than they were in July, but nowhere near the high of January-February 2021. Most adults in the United States — and about 90% of those aged 70 and over — have been vaccinated against COVID-19, and those vaccinations work (click here for a recent article in the Atlantic magazine on that subject). Even if there had been a good reason for H. 1434 in early 2021 (and there was not) that reason has gone.

Conclusion

The only kinds of evictions that the Legislature wishes to ban with H. 1434 are evictions where the landlord is trying to get paid. That might make the bill’s proponents feel good, but it would not reduce the transmission of COVI-19.

eviction moratorium, law, supreme court of the united states

HUD Secretary accuses SCOTUS of “putting millions of Americans at risk.”

August 27, 2021:- HUD Secretary Marcia L. Fudge issued a statement criticizing the Supreme Court of the United States for holding the CDC eviction moratorium unconstitutional. Here is the opening paragraph of the statement:

“I am deeply disappointed by the Supreme Court’s ruling on the CDC’s eviction moratorium. With this decision, the Court has put millions of Americans at risk of losing their homes—even as the Delta variant heightens their risk of exposure to COVID-19. Many of these Americans are among our most vulnerable—including senior citizens, people with chronic illnesses, young children, and families with the lowest incomes.”

The statement is inaccurate. As the Supreme Court’s decision points out, it is Congress, not the CDC, that has the power to enact an eviction moratorium. Congress has done so before, and it could do so again. If Congress had wanted to enact a new eviction moratorium, it could have. But it did not. That choice on the part of Congress did not magically empower another branch of the federal government to legislate in its place.

Many political actors have put people at risk of losing their homes, e.g. the governors who closed down businesses and the legislators who enabled them. The culprits do not include the justices of the Supreme Court.

https://www.hud.gov/about/leadership/marcia_fudgehttps://www.hud.gov/about/leadership/marcia_fudge
law

Supreme Court strikes down CDC eviction moratorium

August 27, 2021:- Yesterday evening, the Supreme Court of the United States lifted the stay (pause) on the District Court’s order vacating the Biden administration’s eviction moratorium. By way of a reminder about the separation of powers, the Supreme Court stated:

The Government contends that the first sentence of §361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, including issuing the moratorium. But the second sentence informs the grant of authority by illustrating the kinds of measures that could be necessary: inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles. These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself. The CDC’s moratorium, on the other hand, relates to interstate infection far more indirectly: If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID–19.

This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute. Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that §361(a) gives the CDC the authority to impose this eviction moratorium. Even if the text were ambiguous, the sheer scope of the CDC’s claimed authority under §361(a) would counsel against the Government’s interpretation. We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance… That is exactly the kind of power that the CDC claims here.

(internal citations and quotation marks omitted).

The Court was not saying that no branch of the federal government can impose an eviction moratorium. Congress can do it (and Congress has done it) but an executive-branch administrative agency cannot.

This article in scotusblog.com provides a clear description and link to the decision.

COVID 19, eviction moratorium, housing court, landlord tenant, law, separation of powers

CDC EVICTION MORATORIUM DISCUSSION: SEPTEMBER 8

August 25, 2021:-Attorney Wayne Detring of Franklin, Tennessee, is not someone I had heard of before yesterday but, as a result of his letter to the editor of the Wall Street Journal, he is going on my Christmas card list.

Attorney Detring pointed out that after President Biden repeatedly said that there was no legal basis for extending his predecessor’s eviction moratorium (and then went ahead and did it anyway) the administration’s lawyer put his name to a court document arguing that, contrary to his client’s repeated and accurate public statements, the moratorium is lawful. That sort of conduct verges on the unethical, wrote Attorney Detring (see below).

Here is the President saying that the courts had ruled that the previous CDC eviction moratorium was unconstitutional and that although most constitutional scholars think that a new one would be “unlikely to pass constitutional muster” a few think it might and by the time a challenge gets through the courts the order will have served its purpose.

Clearly unconstitutional

The court decision President Biden was referring to was the one that Judge Dabney Friedrich of the U.S. District Court for the District of Columbia issued back in June. “The question for the Court is a narrow one,” wrote Judge Friedrich.

“Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”

The reason has nothing to do with the wording or extent of the CDC’s eviction moratorium. The reason is simpler than that. As an executive branch agency, the CDC may only act within the parameters that Congress has set for it, and Congress has never granted the CDC the authority to ban people who own rental property from going to court when tenants do not pay rent. The CDC does not have, and never has had, that authority.

At the end of June, Supreme Court Justice Brett Kavanaugh stated that a moratorium extension would need clear and specific congressional authorization via new legislation.

Nevertheless, when Congress did not enact any such clear and specific authorization, President Biden issued another eviction moratorium through the CDC.

New order

The Alabama Association of Realtors quickly challenged the new moratorium.

In response, the Solicitor General filed a reply in which he argued that Congress had given the CDC authority via 42 USC 264(a), enacted in 1944, which provides that:

“The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.”

According to the Acting Solicitor General of the United Stats, Brian H. Fletcher, by way of this provision in the 1944 statute Congress gave the head of the CDC discretion to “prevent the movement of persons to prevent the spread of communicable disease.” To be fair, he was quoting the Court of Appeals for the District of Columbia when it rejected the request from the Alabama Association of Realtors to vacate the stay of Judge Friedrich’s previous order. But at the time the Solicitor General filed the reply it was already clear that five justices of the Supreme Court of the United States share the opinion of Judge Friedrich that the 1944 statute, which (prior to President Trump) had never been used in this way, does not confer the necessary authority.

Professional Conduct

If you think there ought to be a rule against this sort of thing, there is, as Attorney Detring points out:

“Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct prohibits lawyers from bringing or defending a proceeding unless there is a basis in law or fact for doing so. Rule 11 of the Federal Rules of Civil Procedure states that by signing or submitting a pleading, an attorney certifies that it is not presented for any improper purpose, such as to ‘cause unnecessary delay.’ Rule 11 also provides a process for sanctioning violators… Ordinary practicing attorneys would be in grave danger of sanctions for filing a pleading knowingly unsupported by law or fact, and by admittedly filing the pleading for the purpose of delay.”

Good point, I think.

Discussion

President Biden’s conscious decision to issue an unlawful order will be one of topics up for discussion at an event MassLandlords has scheduled for September 8 titled “Are Eviction Moratoriums the New Normal?” The other points up for discussion:

Courtroom challenges to the CDC moratorium;

  • The “state moratorium 2.0” currently pending the Massachusetts Legislature; and
  • What litigation might be brought to bear against a new Massachusetts eviction moratorium.

I will be one of the three speakers, together with Attorney Jordana Roubicek Greenman and Attorney Richard Vetstein. For the event link, click here.

eviction moratorium, housing court, law

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/
eviction moratorium, fair housing, landlord tenant, law

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
eviction moratorium, landlord tenant, law

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
COVID 19, eviction moratorium, housing court, landlord tenant, law

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.

COVID 19, housing court, landlord tenant, landlord-tenant, law

Housing law update

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.

Animal Farm, by George Orwell
law

Eviction moratorium extended through March 2021

This image has an empty alt attribute; its file name is chamber-legislative-breakfast_with-lindsey-and-silvia-3.jpg

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.

Peter Vickery, Esq.

eviction moratorium, fair housing, housing court, landlord tenant, landlord-tenant, law

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.

fair housing, housing court, landlord tenant, landlord-tenant, law

What happens when the Massachusetts eviction moratorium expires?

October 9, 2020: – In this short video, I describe the two key things housing providers need to know about when the Massachusetts eviction moratorium expires:

  1. The Federal eviction moratorium ordered by the Centers for Disease Control (CDC) and
  2. Housing Court Standing Order 6-20.
Peter Vickery, Esq.
law

Green light? Housing Court preparing to resume summary process cases

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.

Photo by DavisSanchez by Pexels
law

New eviction moratorium bill: Next time, try to remember funding

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.

“Forgot What I Wanted to Remember” by Flооd is licensed under CC BY-NC-ND 2.0

law

Eviction moratorium: federal judge criticizes compelled speech

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.”

“Riot police” by mac_ivan is licensed under CC BY 2.0

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.

law

Executive overreach: CDC eviction moratorium usurps Congress

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.

Stay tuned.

“US Capitol” by keithreifsnyder is licensed under CC BY 2.0
law

Civil rights group challenges CDC eviction moratorium

September 9, 2020:- The New Civil Liberties Alliance filed a complaint that challenges the constitutionality of the CDC’s order that purports to ban evictions nationwide. For the press release, click here.

The organization is also seeking a temporary restraining order to prevent Health & Human Services Secretary Alex Azar implementing the order. My opinion, for what it’s worth, is that the CDC order exceeds the agency’s authority by a country mile. Stay tuned for updates.

File:Alex Azar official portrait.jpg
Secretary Alex Azar (public domain)

law

Attorney General gets money for short-changed workers

September 8, 2020:- Quite properly, Attorney General Maura Healey is cracking down on wage theft, according to this article on MassLive. Wage theft is where a worker provides a service but does not get paid.

It’s a shame that housing providers who provide housing without getting paid can’t look to the Attorney General for help.

https://www.mass.gov/orgs/office-of-attorney-general-maura-healeyhttps://www.mass.gov/orgs/office-of-attorney-general-maura-healey

law

She can’t even quit

Sometimes quitting would be great

September 2, 2020:- Imagine they passed a law saying that you’ve got to go to work every day of the year, and if the company doesn’t pay your wages, that’s just too bad. You can’t sue them. You can’t go on strike. You can’t even quit.

I have a client who is in a position something like that.

She works as a housing provider, in addition to her day job as a nurse. She owns her own home and one other house that she bought in order to rent it out. Her goal was to use the rental income to pay the bank, and then (when she’d paid off the mortgage) start making a profit.

“It was supposed to be my 401(k),” she told me.

Not a 401(k)

That’s not how it turned out. In November 2019, the tenant (then, as now, unemployed) stopped paying rent, so my client started summary process (eviction) proceedings in Housing Court. But then the Legislature and the Governor passed Chapter 65, the partial eviction moratorium, which prohibits the courts from moving forward with non-payment cases even if the reason for non-payment has nothing to do with COVID 19 or the state government’s job-destroying, livelihood-wrecking response to it.

So the summary process case is suspended until the moratorium expires, which could be in October or might be in January if the Governor chooses to extend it. Or it could be even later; who knows.

When the case emerges from limbo, it will be one among thousands waiting for a judge to hear it. In the meantime, is there anything my client can do to try to get paid? At this point, the rent arrears are somewhat north of $8,000, by the way.

Another route?

Two attorneys brought a constitutional challenge to the partial eviction moratorium, namely Jordana Rubicek Greenman and Richard Vetstein. For details of the lawsuit, check out Attorney Vetstein’s blog.

I wrote an amicus brief for MassLandlords, and watched the oral argument before Superior Court Judge Paul Wilson online. In the course of the argument, Attorney Vetstein made the point that the moratorium is barring the courts to one class of litigants, i.e. landlords. Not so, responded counsel for one of the tenants’ organizations who said that the courts aren’t barred because landlords can still sue tenants for breach of contract.

In his order denying the request for a preliminary injunction, Judge Wilson said the same thing: “[T]he economic effect on landlords is mitigated not only by their ability to sue non-paying tenants for breach of contract, but by the temporary nature of the moratorium.”

Could that really be a viable route, I wondered? Could landlords, who can’t use summary process for the foreseeable future, sue for breach of contract? The client I’m writing about here agreed to try.

Breach of contract case

On her behalf, I filed a simple breach of contract case in Housing Court. The tenant’s (taxpayer-funded) lawyer filed a motion to dismiss under Rule 12(b)(9) of the Massachusetts Rules of Civil Procedure on the basis that my client can’t have two cases about the same issue going at once.

Fair enough, you might say, why not just dismiss the summary process claim? Dismissing a case where the other side has filed counterclaims (which happened here) requires a motion that a judge has to rule on, and the partial eviction moratorium prohibits the courts from scheduling a court event.

More importantly, if my client did dismiss her summary process case, in order to regain possession of her house when the moratorium expires she would have to start all over again. She would be at the back of a line. A very long line.

Regarding those counterclaims that the tenant filed: Are there two sides to this story? Obviously.

But what if (after the moratorium expires) a judge, after hearing all the evidence, decided that even if some of the counterclaims were valid, the tenant owed my client, say, 75% — or even 50% — of the rent that had built up since November 2019? Does anyone really believe that the unemployed tenant will be able to pay several thousand dollars?

Anyway, we had a hearing, and the judge took it under advisement. When the court issues the decision, I will post an update.

No names, no pack drill

This story is far from being the most extraordinary that I have heard in the last few months. This one seems worth telling today, now that the federal government has established a nationwide eviction moratorium and there is some wider public discussion of the administration’s proffered justification and the likely impact.

My client gave me permission to tell her story online, but I decided not to use her name or other identifying information because you know how things are these days.

Like the tenant, she is a real person. She deserves some consideration from policymakers, and from the people who are supposed to hold them to account, i.e. the electorate.

She has to pay to maintain the property and keep it up to code. The tenant won’t pay rent, and has not applied for the subsidies that are available to cover the rent. But without the tenant applying, my client can’t get access to those subsidies.

So my client doesn’t want to be a landlord any more, obviously. But she doesn’t have a choice. She can’t get paid, and she can’t even quit.

    Quitting isn’t always an option