Boston Eviction Moratorium Struck Down By Housing Court

by Rich Vetstein on November 29, 2021

in COVID-19, Housing Court, Landlord Tenant Law, Massachusetts Real Estate Law, Rental Housing

Housing Court Justice Irene Bagdoian Rules That Boston Covid-19 Eviction Moratorium Exceeded Public Health Emergency Powers

Updated (Dec. 23, 2021): Judge Denies Stay of Ruling Pending Appeal

In likely one of the most important cases ever heard by the Massachusetts Housing Court, Justice Irene Bagdoian declared that despite the gravity of the Covid-19 pandemic, the new City of Boston eviction moratorium exceeded the emergency statutory powers of the Boston Public Health Commission, and unlawfully interfered with the judicial functions of the Housing Court in overseeing eviction cases.

The moratorium was imposed by then Acting Mayor Kim Janey in August after the U.S. Supreme Court struck down the nationwide eviction moratorium enacted by the Centers for Disease Control. Although entitled “temporary,” the order had no specific end-date and prohibited landlords and constables being able to enforce move-out orders (executions).

The lawsuit challenging the moratorium was filed by Attorneys Jordana Greenman and Mitch Matorin on behalf of Janet Avila, a Mattapan woman whose tenant owed her $29,000 in back rent, and a constable who the city has blocked from executing evictions. Attorney Jason Carter of Hingham filed a separate challenge which was consolidated with the Avila case. The city took the unusual step of issuing a threatening letter to all licensed city constables to abide by the eviction moratorium lest their licenses be in peril.

In striking down the moratorium, Judge Bagdoian issued a comprehensive well-reasoned written opinion, tracking the history and statutory powers of the Boston Public Health Commission which issued the moratorium. In very strong words she ruled, “This court perceives great mischief in allowing a municipality or one of its agencies to exceed its power, even for compelling reasons. . . . In this court’s view, such expansion of power by a governmental agency, even for compelling reasons, should be unthinkable in a democratic system of governance.” Since the Legislature has enacted a comprehensive statutory scheme to regulate evictions, the judge reasoned, individual cities cannot opt-out of provisions they feel are harmful to tenants, absent special legislative approval.

I participated substantially in this case, filing a friend-of-the-court brief, assisting the legal team, and observing the 3 hour oral arguments in Boston. The important case was handled exactly as expected with lengthy well researched briefing and argument on both sides by experienced, smart attorneys. Judge Bagdoian’s ruling was impressive in its breadth of research and analysis, and in my view, absolutely correct on the law. The bottom line is that in our top-down system of state government, any eviction moratorium must be approved by the Legislature, not individual city agencies.

Boston Mayor Michelle Wu has indicated the City will seek a stay of the ruling, according to the Boston Globe.

The Plaintiffs’ attorneys released the following comment: For a year and a half, small landlords have been told that they cannot regain possession of their own property and must continue provide housing to people who either are not paying rent or who are otherwise violating their tenancy agreements. Today, the Court correctly decided that cities and towns have no authority to do this. This decision is important not just for rental property owners in the City of Boston, but also for those in Somerville and Malden, which have similarly tried to impose city-wide eviction moratoriums contrary to state law. The Court’s decision today directly struck down the moratorium issued by the BPHC, but the same reasoning applies in Somerville and Malden, and we look forward to both of those cities promptly taking action to revoke their own moratoriums so that further litigation is not necessary.

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