Boston eviction moratorium

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

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. 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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Lawsuit Filed On Behalf of Elderly Mattapan Homeowner Owed $29,000 in Rent, and Local Constable

Updated (Nov. 29, 2021)Housing Court Justice Irene Bagdoian Strikes Down Boston Eviction Moratorium

A new lawsuit challenging the recent City of Boston Eviction Moratorium Order was filed this week in Eastern (Boston) Housing Court. The case will be before Judge Irene Bagdoian. The lawsuit was filed by veteran landlord attorney, Jordana Greenman, Esq. and Mitch Matorin, both of whom worked on the federal and state challenge to the Gov. Baker Eviction Moratorium. I will be assisting the team as needed, and will hopefully be able to file a “friend-of-the-court” brief in support.

After the U.S. Supreme Court struck down the nationwide eviction moratorium imposed by the Centers for Disease Control, Boston Acting Mayor Kim Janey imposed a city-wide residential eviction moratorium effective August 31, 2021, which is in place indefinitely until the Boston Public Health Commission decides to terminate it, in its sole discretion. The order provides that “no landlord and/or owner shall serve or cause the service of notice of levy upon an eviction, or otherwise enforce a residential eviction upon a resident of Boston while this order is in effect.”

The lawsuit was filed on behalf of Janet Avila, a Mattapan woman whose tenant owed her $29,000 in back rent. That eviction was blocked by state and then federal bans that were in place through much of the pandemic. In August, however, the Housing Court issued a final ruling in the case, allowing Avila to evict the tenant. That same day, Acting Mayor Janey announced the moratorium. She’s stuck with this tenant now and faces severe financial hardship. The other plaintiff is David Boudreau, a constable who the city has blocked from executing evictions. The city has also taken 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.

As outlined in the lawsuit complaint linked below, the Boston Order is a clear violation of the Home Rule Amendment which prohibits local orders in direct conflict with state law (evictions). Boston would need full state legislative approval for such an eviction moratorium which it does not have. The order also appears to exceed the statutory authority of the Public Health Commission (similar to the reasoning of the Supreme Court in striking down the CDC moratorium). Indeed, Acting Mayor Janey made public statements acknowledging the questionable legality of the Order, but decided to enact it anyways during a hotly contested mayoral primary race.

In reality, the Boston Eviction Moratorium is preventing only the most troublesome tenants from being evicted. The vast majority of evictions are being funded and resolved without any forced move-outs with the influx of federal and state rental aid. However, there are many “no-fault” cases filed by property owners who want to move back into rental homes, where leases have expired, or where the landlord-tenant relationship has just soured. The Boston Order would make innocent landlords like Ms. Avila, stuck in those bad situations.

The Housing Court has scheduled an initial hearing in the case for Nov. 9. We expect the City and tenant advocates to mount a vigorous defense to this lawsuit.

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After CDC Moratorium Struck Down by U.S. Supreme Court, Acting Mayor Janey Imposes Local Residential Eviction Moratorium Through Boston Public Health Commission

Update (Oct. 29, 2021): Mattapan Property Owner and Local Constable File Lawsuit Challenging Boston’s Eviction Moratorium

After the U.S. Supreme Court recently struck down the nationwide eviction moratorium imposed by the Centers for Disease Control, President Biden urged local cities and municipalities to impose eviction moratoriums at the local level. Boston Acting Mayor Kim Janey wasted no time in following that call to arms, imposing a city-wide residential eviction moratorium effective August 31, 2021, which is in place indefinitely until the Boston Public Health Commission decides to terminate it, in its sole discretion.

The order (embedded below) provides that “no landlord and/or owner shall serve or cause the service of notice of levy upon an eviction, or otherwise enforce a residential eviction upon a resident of Boston while this order is in effect.” The order does not apply in cases involving “serious violations” of the terms of a tenancy that impair the health and safety of other building residents or immediately adjacent neighbors.”

As the title to this post indicates, my opinion is that this order is completely unlawful on several grounds. It is a clear violation of the Home Rule Amendment which prohibits local orders in direct conflict with state law (evictions). Boston would need full state legislative approval for such an eviction moratorium which it does not have. The order also appears to exceed the statutory authority of the Public Health Commission (similar to the reasoning of the Supreme Court in striking down the CDC moratorium). The order would also run afoul of several constitutional principles (5th Amendment, Contracts Clause, access to courts) which we raised in our previous challenge to the statewide eviction moratorium in federal court.

In discussions with the Eastern (Boston) Housing Court officials, they have indicated they are not bound by the order and that executions for possession (move out orders) will continue to be issued by the Clerk’s Office. Interestingly, the order itself does not specifically apply to the courts, only to a landlord or owner, and only targets the very last step in the eviction process, the levy of execution. The number of forced move outs in Boston remains very small — estimates are that only about 200 cases have reached this final stage during the pandemic. Formal guidance is expected within the next few days. We have had discussions with several landlords about filing a legal challenge to the new moratorium.

As reported in the Boston Globe, Boston housing chief Sheila Dillon said city officials began discussing a local moratorium on Friday after the Supreme Court’s ruling. The city has focused on helping struggling tenants obtain rent relief — some 12,500 households in Boston have received about $72 million in state and local aid, she said — but officials are also worried about an immediate spike in evictions now that the federal ban is gone. And despite the potential for lawsuits challenging the ban, Dillon said, they decided to do what they could now. “We anticipate that there may be some legal challenges to this,” Dillon said. “We felt it was really important to try. We do think evictions are a public health issue.”

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