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.

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

Help session on security deposits

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.

To register visit masslandlords.net/events

Banana photo by Milo Bunnik on Unsplash

Legislative presentation

On Wednesday, February 3 at 5:00 p.m. I will be offering a presentation for MassLandlords on the subject of bills for the next sessions of the Massachusetts Legislature.

One of the bills has to do with civil asset forfeiture, by the way. What does that have to do with housing law? Tune in and fine out!

To learn more and to register click here.

Peter Vickery, Esq.

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

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.

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

New federal eviction moratorium

September 2,2020:- Yesterday the Centers for Disease Control & Prevention (CDC) issued an order prohibiting evictions. For the fact sheet from the White House, click here. Before going any further, let me quote a pertinent passage:

“This Order does not apply in any State… with a moratorium on residential evictions that provides the same or greater level of public health protection than the requirements listed in this Order.”

If “public health protection” means eviction moratorium, then (assuming Governor Baker extends the moratorium through the end of 2020) the federal order would not apply in Massachusetts. The partial eviction moratorium here is much broader than the CDC’s.

Readers who care about old-fashioned concepts like law might be wondering, “what is the statutory authority for this order?” The agency cites section 361 of the Public Health Services Act.

As for whether the order is lawful and constitutionally sound, perhaps someone will sue and ask a judge to decide.

In terms of common sense, do the circumstances justify the order? I offer two screenshots from the CDC, and ask you to decide for yourself. The first screenshot is from the order. The second is from the agency’s recent provisional weekly COVID 19 death count. I urge you look at the full document.

If you have an opinion to share, please use the form that appears below screenshot 2.

Screenshot 1
Screenshot 2

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

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

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

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

Execution

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

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

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

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

Now back to the argument over Chapter 65.

How to stop executions

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

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

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

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

Decision?

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

 

All work and no pay: Cancel the rent cancellation bill

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

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

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

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

But it has not become law yet.

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

To submit your testimony on H4878/S2831 click here.

Referendum to the rescue? New bill would cancel the rent, ban evictions, and make Housing Court cases secret

June 30, 2020:-  Housing providers in Massachusetts may want to prepare for a referendum campaign. A new legislative proposal, HD 5166, would cancel the rent, make Housing Court cases secret, and extend the eviction moratorium for 12 months after the end of he state of emergency.

What do I mean by “cancel the rent”? After the end of the eviction moratorium–when rental-property owners would finally be allowed access to the courts again for nonpayment cases–the onus would be on the housing provider seeking unpaid rent to prove that the reason for nonpayment was not connected in some way to the emergency. That is an almost insuperable burden. Bear in mind, more than a year’s worth of rent could have accrued by that stage.

That aside, the bill is largely a grab-bag of previously filed proposals (e.g. eviction sealing and “just cause eviction”) repackaged as a response to the pandemic. If enacted it would so destabilize the market as to render the rental-housing business non-viable for all but the biggest (and most politically wired) landlords. So the bill title, “An Act to guarantee housing stability during the COVID 19 emergency and recovery,” is beyond parody.

Because of its emergency preamble, the bill, filed by State Representatives Mike Connolly and Kevin Honan (House Chair of the Joint Committee on Housing) with more than 20 co-sponsors, would go into effect immediately and the first 10 signatures necessary to start the referendum process would be due within 30 days.

Unfortunately, this proposal seems deliberately designed to destroy most private rental housing in Massachusetts thereby reducing the options for tenants to a choice between (a) big corporate landlords and (2) government housing. On the other hand (and trying hard to be optimistic and giving the politicians the benefit of the doubt) perhaps it’s just a milker bill (also known as a fetcher or juice bill).

Whatever the proponents’ aims, if this bill becomes law the only realistic way to rescue private rental housing (and preserve meaningful choice) is the referendum. Click here for referendum basics. In the meantime, please call your State Representative and Senator and ask them to take a stand against this bill.

white and teal safety ring
Photo by Athena on Pexels.com

Lawmaker calls on Governor to extend moratorium

June 30, 2020:-  The eviction moratorium will expire in mid-August, unless Governor Baker prolongs it.  Unfortunately according to this story in MassLive and this Tweet (below), Representative Kevin Honan is urging the Governor to extend the moratorium.  I would not worry about a state representative weighing in but for the fact that this one is House chair of the Joint Committee on Housing and, therefore, somebody to whom the Governor might be inclined to listen.

For my argument as to why the Governor should let the moratorium expire (principally its negative impact on affordable housing) click here.Rep Honan tweet

 

 

Eviction moratorium: HUD, Fannie, and Freddie extend through August

June 17, 2020:- An eviction moratorium that applies to some properties (those with FHA-insured mortgages) just got extended, as this mortgagee letter from the Department of Housing and Urban Development (HUD) and this FHFA news release explain.

The decision does not mean that the broader federal eviction moratorium is being extended (only Congress can do that) or that the Massachusetts moratorium is being extended (only the Massachusetts Governor can do do that, or — if it decides to amend the eviction-moratorium statute — the Legislature). The moratorium in question is one of three that may apply to your property if you are a housing provider in Massachusetts.

Before the  Chapter 65 eviction moratorium there was the CARES Act eviction moratorium and before the CARES Act eviction moratorium there was the HUD eviction moratorium. Under Chapter 65, the eviction moratorium and ban on issuing notices to quit will expire on August 18, unless the Governor extends the moratorium by 90 days.

There is some overlap between the federal and State moratoria, so that even if the Massachusetts moratorium expires on August 18, a housing provider may still not be able to go to court for unpaid rent, or even terminate the lease by way of a notice to quit, if the tenant lives in a property financed by an FHA-insured mortgage. It’s all a bit of a jigsaw puzzle.

Takeaway: Housing providers in Massachusetts should not assume that after August 18 they will be able to issue non-paying tenants with notices to quit.

 

Senate to consider extending and expanding eviction moratorium

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

Legislative largesse

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

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

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

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

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

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

A year-long, nationwide eviction moratorium

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

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

Federalism 101

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

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

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

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

james madison 1
James Madison

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

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

Conclusion

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

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

 

Governor Baker, let the eviction moratorium expire

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

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

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

Hot news: lawsuit over eviction moratorium in NY

May 28, 2020:- Alleging that the eviction moratorium operates as a taking of their property without just compensation, a group of housing providers in New York have filed suit in federal court, according to the New York Law Journal.

Stay tuned.

man reading burning newspaper
Photo by Danya Gutan on Pexels.com

Eviction moratorium still in effect

May 26, 2020:- The eviction moratorium (Chapter 65) is still in effect. The earliest date on which is will expire is August 18 (120 days after Chapter 65 became law). However, the Governor could extend it by 90 days, and keep doing so until 45 after the end of the state of emergency.

End?

When will the state of emergency end? The Governor has not said. There has to be a state of emergency in effect for the Governor to issue emergency orders, so the chronology of his four-phase re-opening plan gives some clues.

No NTQs

Until the moratorium expires (August 18 at the earliest, and possibly later), housing providers must not send notices to quit, except for “essential evictions,” i.e. where the tenant’s criminal activity/lease violations “may impact the health or safety” of another person lawfully on the premises or the general public.

P.S.

May 28, 2020:- In addition to the State-level eviction moratorium established by Chapter 65, there is also a federal moratorium that Congress imposed on some properties by way of the CARES Act. As this reminder from HUD points out, housing providers are not allowed to charge late fees that accrue for unpaid rent during the 120-day federal moratorium (which ends July 25). To determine whether your property is subject to the federal moratorium, you may want to ask your lawyer.

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Photo by Brett Sayles on Pexels.com

 

Rent guarantee insurance

May 22, 2020:- Missed rental payments are on the rise in Massachusetts, but a market solution may be available.

Even though the eviction moratorium law (Chapter 65) says that tenants are required to pay rent, the lack of an enforcement mechanism is leading some to skip paying the rent with a sense of impunity. Housing providers still have to pay to maintain the property and keep it up to code even when they are not receiving rent. One way for providers to stay afloat might be rent-guarantee insurance, also known as rent default insurance, which promises coverage in the event that a tenant stops paying rent.

Unless and until the Massachusetts Legislature takes up the Fair and Equal Housing Guarantee surety-bond policy that MassLandlords is promoting, some housing providers may find this kind of product helpful. And I see that one company, Avail, has a short video on the subject.

If affordable, insurance might be a viable market solution to government failure. By “government failure” I mean the Commonwealth requiring one party to provide housing without being able to go to court to make the other party pay for said housing. This forces rental-property owners to either (a) provide free housing (not a great business model) or (b) exit the market, thereby reducing the amount of rental housing available.

Ideally, Governor Charlie Baker would let Chapter 65 expire on August 18 rather than exercising his option to extend it. But if he chooses to prolong the moratorium, insurance might do the trick.

Please note that I have no contractual, fiduciary, relationship with Avail or Steady Marketplace, either oral or written, and receive no remuneration of any kind from the companies, make no representations regarding them, and suspect that there are other entities out there that offer similar insurance products. In the vernacular, I am not shilling for Avail or Steady Marketplace, or any other insurance company for that matter.  I just think that for some housing providers, rent-guarantee insurance might be worth exploring.

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The Big Shut Up: the eviction moratorium and speech

May 19, 2020:-  The Massachusetts eviction moratorium (Chapter 65) has several execrable features, and one of the worst is the abridgment of free speech. The speech in question is in the category that courts refer to as “commercial speech.” Should you care about State government violating people’s right to utter commercial speech? If you care about the non-commercial variety, yes.

Some, but not all, notices to quit

The statute — §3(a)(ii) to be precise — prohibits housing providers from sending “any notice, including a notice to quit, requesting, or demanding that a tenant of a residential dwelling unit vacate the premises” for non-payment of rent, for cause, or for no cause. However, the statute does permit notices to quit where a tenant’s criminal activity or lease violations “may impact the health or safety” of another person, including the general public.

So if a tenant is violating the lease in a way that “may impact the health or safety” of another, the housing provider is allowed to terminate the tenancy and issue a notice to quit (a prerequisite for most eviction proceedings, called “summary process” in Massachusetts).  But if a tenant is simply not paying rent, the housing provider is not allowed to do so.

Before going any further, it is important to remember this key point: The law prohibits some, but not all, notices to quit.

Notices to quit are speech

A notice to quit is, literally, correspondence; a letter from one person to another. Both sender and recipient are parties to a contract, and the notice to quit is how the sender tells the recipient that the contract is at an end. It is a form of “expression related solely to the economic interests of the speaker and its audience” so constitutes commercial speech.  Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 561 (1980). The housing provider who sends the notice to quit is not evicting the tenant. Only a judge can do that by way of legal proceedings called summary process (see below).

Even though the notice to quit is commercial speech, which means that it gets less protection from the courts than non-commercial varieties, the government does not have free rein. If it wants to restrict someone’s commercial speech, the government still has to follow some rules.

To be constitutional, commercial-speech restrictions must be effective

The Supreme Judicial Court has held that “a restriction on commercial speech will not be upheld if it provides only ineffective or remote support for the government’s purpose.”  Bulldog Inv’rs Gen. P’ship v. Sec’y of Com., 460 Mass. 647, 669–70 (2011) quoting Central Hudson, 447 U.S. at 564. If the restriction does not effectively support the government’s purpose, it is unconstitutional.

Does the ban on some notices to quit (but not others) effectively support the government’s purpose? And what is the government’s purpose, anyway?

The selective ban on notices to quit is ineffective

The express purpose of the Commonwealth, stated in the statute’s emergency preamble, is to establish “a moratorium on evictions and foreclosures during the Governor’s COVID 19 emergency declaration.” So for the duration of the emergency the government wants to temporarily stop evictions. Fair enough, some might say.

But evictions are not something housing providers can perform. Housing providers cannot evict anyone; only judges can do that. There are statutes that make this clear.  G.L. c. 239 and c. 186.

If landlords try to evict, that is called self help, and it is illegal in Massachusetts. In fact, tenants’ advocates recommend that if a landlord resorts to self help the tenants should call the police and file a criminal complaint. Don’t believe me? Follow this link to the Massachusetts Legal Aid site and scroll down to the words in bold: Call the police and file a criminal complaint.

In order to impose a moratorium on evictions, the Commonwealth need only prohibit the courts from issuing judgments and executions for possession, which it has done by way of §3(b)(ii) which states that the courts must not “enter a judgment or default judgment for a plaintiff for possession of a residential dwelling unit… (iii) issue an execution for possession of a residential dwelling unit… ; (iv) deny, upon the request of a defendant, a stay of execution, or upon the request by a party, a continuance of a summary process case; or (v) schedule a court event, including a summary process trial.”

Courts are not allowed to hold summary process trials, enter judgment, award possession to housing providers, or deny tenants a stay of execution (execution means the eviction itself, where the sheriff forcibly removes the people and their belongings). That part of the statute, §3(b)(ii), is the one part that actually does establish a moratorium on evictions.

But only some evictions. Remember, Chapter 65 prohibits evictions for non-payment of rent and evictions where the housing provider does not specify a particular reason, so-called “no cause” evictions. It does not prohibit evictions where the tenant’s criminal activity or lease violations” may impact the health or safety” of another person or the general public.

How does evicting someone for criminal activity that may impact the safety of the general public (thereby rendering that dangerous person homeless) help keep the general public safe, whereas evicting someone for nonpayment of rent makes the general public less safe?  That is a genuine question. I would like to know the Commonwealth’s answer.

Conclusion

The supposed goal of Chapter 65 is to establish a moratorium on evictions during the COVID 19 emergency. One part of the statute does exactly that (almost), by barring the courts from evicting people, except people who are potentially a danger to the public (putting them out on the street is OK, apparently). What does restricting the commercial speech rights of housing providers do to make the moratorium more effective? Nothing.

Chapter 65 is set to expire on August 18 unless the Governor exercises his option to extend it. Should he let it expire, or grant it an extension?

Exercise your speech rights while you can and let me know what you think.

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