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.
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.
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.