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Landlords sue to block Covid-19 ban on evictions

Two landlords, one the retired owner of a small building in Allston, have filed an emergency petition with the Supreme Judicial Court seeking to overturn a law passed and signed last month that bars the eviction of most tenants during the current state of emergency.

The law, passed to protect tenants who have found themselves suddenly jobless, is in turn screwing landlords, particularly small ones who may be counting on their units as their main source of income, according to the complaint, filed by two real-estate attorneys on behalf of Mitchell Matorin, who owns a two-unit building in Worcester and whose tenants stopped paying rent in February, long before the state of emergency, and Linda Smith, who owns a condo on Harvard Terrace in Allston, and whose tenant stopped paying rent in April because, allegedly, "the governor said I do not have to."

Matorin is currently out $4,800, including rent due before passage of the act - state Housing Court has suspended his eviction process due to the state of emergency - while Smith is now out $6,720 from the condo, which, aside from "a small Social Security stipend" had been her sole source of income, the complaint says.

But in appealing the law, attorneys Richard Vetstein of Framingham and Jordana Roubicek of Watertown are not simply appealing to the potential sympathy of the state's highest court. In their complaint, they allege the act violates the state and federal constitutions, most immediately the separation of powers between the legislature and the court system - in a state that is one of the few to explicitly tell the legislature, the courts and the executive to stay out of each other's business.

The law violates this by telling the court system how to oversee evictions, through a detailed set of rules for summary process.

The Act operates as a historically unprecedented interference by the legislative and executive branch in the core functions and inherent powers of the Trial Court’s ability to consider and decide summary process cases. The Commonwealth has survived the Civil War, two World Wars, the Great Depression, the 1918 Spanish influenza pandemic, and numerous economic recessions, yet until now the Legislature has never taken such a drastic step as to close the courthouse doors to one group of litigants in one particular type of civil action.

The complaint continues:

For any property owner seeking to file a nonessential eviction, the Eviction Moratorium bans the issuances of notices to quit, closes the Clerk's Office, shuts down the courthouse, and then acts as a new judicial standing order telling Trial Court judges precisely how to handle (or, more accurately, not handle) their pending caseload. Aside from prohibiting the filing of any new “non-essential” eviction, the Act goes so far as to tell a Trial Court judge he or she cannot even schedule a “court event.” This would conceivably cover any typical event within a summary process case, such as any motion hearing, a motion for rent escrow, status conference, case management conference, pre-trial conference, a motion to set an appeal bond, a motion to issue execution, and of course, a bench or jury trial. There has never been such a blatant infringement on the judiciary's role to handle its own cases.

The complaint notes that while the court system itself, through orders handed down by chief justices of different courts, has ordered a halt to all trials until the fall and even shut public access to courthouses through at least June, it has also quickly developed systems for conducting non-trial business - such as hearings and other proceedings - electronically or via phone

Emergency matters are also being heard live in person in some cases. The Act, however, usurps the Court's own standing orders and innovative measures to deal with the COVID-19 crisis for summary process cases, which would allow for evictions cases to be heard soon. Article 30 prohibits that, and it surely sets a worrisome precedent for future legislative interference with court operations.

The law also restricts the plaintiff's rights under the state constitution "to access the courts freely and without delay," ad under the federal First Amendment right to petition government - and their First Amendment right to say what they want, by requiring landlords who want to tell tenants they need to pay their rent to add state language about the eviction ban, the complaint continues.

What we have before this Court is a complete and total shutdown and indefinite ban on virtually every eviction case being Shutting down our courts to anyone plainly violates Article 11 [which grants the right to court access] and the principals on which the Commonwealth and the United States of American were founded. The COVID-19 crisis does not, and cannot, suspend this fundamental constitutional right.

They continue the measure is also an illegal taking of property and besides, it's just bad public policy because landlords weren't ever going to mass evict tenant, no sir:

The Moratorium is a drastic over-reaction for a problem that may very well not exist. That is, the Act was intended to prevent a flood of evictions for nonpayment, but that was unlikely to happen. Rental property owners would much prefer to work with good tenants than to try to find new tenants. Also, by postponing the ability to evict in cases where a tenant should be evicted, the Act guarantees a flood of evictions the moment the Moratorium expires. will create months and months of backlogs in our already over-burdened Housing and District Courts, and make the already long eviction process even longer, during which tenants may continue to avoid paying rent and rental property owners will continue having to bear the burden by themselves. While well intended, the Act was not properly vetted for constitutional compliance, and was rushed into law in a panic during a global pandemic without much thought as to how it would drastically impact the entire rental housing market in the Commonwealth. It must be struck down.

Vetstein's explanation of the filing and a copy of the petition.

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Comments

I would throw this out on a technicality. There are errors in at least one, possibly only one, address in this filing. I'll leave it to the legal scholars out there to find it.

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Voting closed 36

What is the technicality?

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I want to scream out like Paul Revere, Samuel Prescott, Israel Bissell, William Dawes, and Sybil Ludington.
THE EVICTIONS ARE COMING!
THE EVICTIONS ARE COMING!

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For someone laid off due to corona who suddenly can't pay their rent- it's a good gesture to suspend evictions. Especially if the landlord can legally delay mortgage payments, taxes, etc.

Someone who stopped paying rent previous to the pandemic, or who says they aren't paying "cause I don't have to" is just taking advantage of the system.

These aren't big greedy corporate landlords. They're small time retirees who presumably worked hard for decades, invested, and are trying to get by.

I realize it's not practical, but I wish we could look at these cases through a good-faith lens.

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Unfortunately, that's not what's happening now. I think the politicians are the last to realize (they usually are) but the real estate market has changed. Commercial? I dunno, there will be a slackness in office space. Face it, people are working from home and making it work because they have to. That will change, a bit, but the concept has been drilled into us. Companies looking to save money (read: survive) will downsize, possibly using some type of split shift, working from home some time then from the office.

Residential? Same problem. With less income, people will either move out to the burbs or just say, "Hey, I don't have it." For whatever reason, spouse losing a job or hours cut or whatever, it's a hit to the valuation of properties.

I know a bunch of people that are collecting. Almost to a person, they want to be back to work. Let's hope that happens, but I think the local politicians are the ones that don't get it. After all, how many of them lost their jobs?

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That's a lot of presuming that the landlords worked hard, are acting ethically, and are unable to get by without rent, even if their mortgages are forgiven. I don't know if it's warranted-- maybe it is, but the tenants deserve at least that much presumption of good faith.

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we are not all working together, what we are heading toward is economic, and perhaps eventually literal, cannibalism.

there is no real safety net for anybody except billionaires who buy back their own stock and fire thousands of employees after Donnie and his pirates bail them out.

here in the Northeast, where a lot of us can work from home (though not all, and even though I work from home I'm broke) we do not respect people in Pennsylvania etc who are outraged that they are told not to go to work. but their rent is due, their healthcare premiums are due, etc.....

We are currently all working together to absolutely destroy the functional mythology of the United States of America. It did not work for everyone, and soon will work for no one.

You can get your head out of your stock portfolio ass before it is too late, but I doubt you will.

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There are not enough real jobs that actually produce anything. There haven't been for a while, but our economy has been sustained by the concept of the 'service economy,' a fantastic construct where millions of mid-level management and paper-pushing jobs are supposed to provide productive employment. The COVID crisis may be the thing that finally forces us to face up to not having enough jobs, and implementing some system to sustain our citizens. The current system enriches a tiny portion of the populace, while punishing large numbers with poverty for being unable to gain one of the decreasing number of living-wage jobs. It's unsustainable. It may be time for a guaranteed minimum income, as awful as that seems to all the people who think they succeeded with no help from society.

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I know he's douchey, but he kinda nailed it when he said "America doesn't make anything anymore."

My response was always "We make the world's popular culture", which I think also speaks to your point about a "decreasing number of living-wage jobs." One can only consume and spend so much money on popular culture.

A guaranteed minimum income might be a step in a good direction. My idea has always been to end zoning laws. Build shelter wherever, maybe my rent stops being my largest expense by a factor of five. That cuts my costs, and doesn't reduce anyone's liquidity, just their property values, which, of course, are $0 if the house isn't for sale, because you won't live in a refrigerator box.

It ain't what you make, it's what you spend.

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These are retirees with a very small number of units. Why should they be stuck footing the bills for their tenants? Makes no sense.

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are refusing to grasp the reality of the situation. and apparently, you're perfectly happy being merely half-correct. the situation, the total situation, is NOT fair to the landowners (many of whom are not billionaires), but if you want to hold out for the current neoliberal system to make sense as is, then you are a loon. you can't build castles high enough, or armies dumb enough, to stay safe from the chaos this economy is going to create. only novel economic approaches can do that. and by novel I don't mean more safety nets for the 1%

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I'm very sympathetic to the owners of 2 & 3 family buildings where the owner is one of the residents. But when you own multiple buildings and derive all your income from rent, you're a professional landlord. You should be able to withstand expensive events, be it a pandemic or a failed heating boiler.

That said, I do agree evictions should still continue for reasons other than rent alone. It's not right if the other tenants need to deal with someone disruptive or threatening.

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OK, there's the small landlord. Struggles against professional tenants (a very real danger, the deck is stacked against small landlords because of the cost of legal assistance, v. free tenant advocacy) can drain a small landlord for a long time. The courts take their sweet time, the tenant is under no obligation to escrow rent and can live for a year for free. Is it a horror show? Oh, yes, it can bleed someone dry.

Larger landlords? Same boat, larger tonnage. Let's use you as an example...you have to go to work. You have to put gas in your car. You have to pay for parking. You buy a sub for lunch. Highway wants a toll. Co-worker is selling GS cookies.
End of the week comes, you say, "Hey, where's my paycheck?"

Sorry, pandemic. Fuck you.

I think what a lot of folks don't appreciate (and there are a bunch of vile politicians riding this one) is that the real estate market is hit exactly the same way as everyone else. There will be a butcher's bill to be paid and it won't be pretty. Construction will slow down, people will eventually get sick of losing money and bail out, it'll all come around.
This will be reflected in lower tax revenue. The politicians are smarter by half. The law is very specific. Property is taxed at its market value. If that tanks, all the Powerball tickets in Massachusetts won't help.

'That said, I do agree evictions should still continue for reasons other than rent alone. It's not right if the other tenants need to deal with someone disruptive or threatening. '

Here's another problem. The courts, in their infinite wisdom, have decided to basically take the summer off. As far as I'm concerned, those black robed bastards are just taking advantage of the system like looters. You think they're going without a paycheck? I doubt it.

Hell, they are trying to let as many people out as possible. It's already leading to friction among the legal powers that be in Boston, Comm Gross, DA Rollins and others.

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I agree that government agencies are some of the worst abusers of the shutdown. Across the country many parks and libraries are still closed that should have been partially or fully reopened months ago.

Libraries in particular should have reopened quickly for circulation.

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I agree if you own one or two triple Decker's and live in one this is chaos. Your home is now at risk.

I don't hold anything against small building owners either. They were designed for professional landlords.

What I have no time for are the landlord's who buy three triple Decker's to finance their two million dollar home and then raise the rents to pay for it. They are adding a middle man where one does not belong. Those three Decker's were the original affordable housing! You lived on the ground floor and rented the other two at decent rents to help pay for the house. Now you have blocks of these homes owned by investors.

Same thing with condo buildings. Where more than half the units are owned by investors.

This is not an attack on that little old man in Dedham who moved to the burbs and kept his old house to rent out or to that woman in Hyde Park who bought a condo in her 20s and still rents it even tho she got married and moved on. It's against those people who do it for a living with properties they should have left alone. It's sad because you walk down some streets and every house has a sign. Either owned by some second bit operation or by a non profit. We have entire former working class neighberhoods where even if the locals wanted to buy in they couldn't afford to and even if they had the money these houses are now in a rental cycle and will never be sold.

Honestly the market can afford to cut out a lot of these new age middleman landlords. Go get a real job and stop raising the rents by standing in the middle with your hand out.

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Mass. Summary Process Rules are already a series of restrictions on Landlords . . No 'access' to courts before the State designated entry date following Summons service / Required 'wait' of full rental period after a notice to quit before filing an eviction action / Automatic continuance (ie wait) upon discovery requests / etc.

The current State orders fall well within the same authority that these landlord lawyers operate under all of the time. Their argument here has no legal merit.

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Maybe I missed it, but nowhere did I notice any mention of force majeure.

We are in the middle of extraordinary event which would appear to trigger force majeure and which the courts can -- if not also must -- consider as a pleading by strapped tenants seeking accommodation.

Let's also keep in mind that various government orders have shutdown the economy and so put people out of work -- an unprecedented number of people.

In turn, ponder the likelihood of success for tenants claiming force majeure on both pandemic reasons and how the government put them out of a job upon appeal if a trial court judge fails to press for equitable relief.

Think what readers may, judges are usually hell on Catch-22 sorts of nonsense.

No argument, Beacon Hill yet again grandstanded things by quickly passing dubious legislation to play to public opinion -- but what's likely coming is that a lot of judges will be telling landlords and tenants to go huddle in a corner and work up a workout plan.

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