Landlords challenging eviction moratorium ask state’s highest court to overturn it

A win could allow proceedings against thousands of tenants

Tom Baker/stock.adobe.com

Two real estate lawyers have asked the Massachusetts Supreme Judicial Court to overturn a new moratorium on most evictions, saying the state law is unconstitutional and should not be enforced.

The Legislature passed the eviction restrictions in April to quickly put in place protections for tenants who could be at risk of losing their housing during the coronavirus pandemic.

But attorneys Richard Vetstein and Jordana Roubicek Greenman, who are challenging the law on behalf of two landlords, say the Legislature overstepped by passing a law that contains numerous violations of the state and federal constitutions. If successful, their challenge could allow thousands of evictions to proceed when state courts reopen this summer after being largely shuttered this spring.

The moratorium bans all residential evictions, with the exception of those that involve criminal activity or lease violations that could affect the health and safety of others; many small-business evictions are also blocked.

The challenge was filed Friday. Among other constitutional claims, Vetstein said the eviction law shows improper legislative interference with the court system, violates his clients’ constitutional right to access the courts, and represents a seizure of real estate without proper compensation.

“Fundamental constitutional rights can’t be quarantined, even during a global pandemic,” Vetstein said.

The moratorium is set to expire Aug. 18, or 45 days after Governor Charlie Baker lifts the COVID-19 state of emergency, whichever is earlier. But the law allows Baker to extend the moratorium in 90-day increments.

“This has the potential to go until the end of the year,” Vetstein said. “It will just be a complete and total disaster for the rental market. . . . There are at least 15,000 to 20,000 pending eviction cases already on the docket that can’t be moved, that are suspended in place.”

Vetstein and Greenman represent Mitchell Matorin, who owns a rental property in Worcester, and Linda Smith, who owns one in Allston. Both are having problems collecting rent because of the law. Matorin is owed $4,800 from his tenants, while Smith is owed $6,720, according to their complaint to the SJC; Smith’s remaining tenant allegedly said he did not have to pay his rent in April because “the governor said I do not have to."

Vetstein said a bill this significant shouldn’t be rushed into law without a public hearing or other proper deliberations at the State House. In the court challenge, Vetstein said there’s no sign the Legislature studied the law’s shifting of the COVID-19 financial burden from distressed tenants to similarly distressed landlords.

“Everyone was in a panic because of COVID,” Vetstein said. “It wasn’t thought out. No one did any analysis on the constitutional compliance.”

Tenants groups, meanwhile, were dismayed by the challenge.

“I think it’s incredibly disappointing,” said Lisa Owens, executive director of City Life/Vida Urbana, a Boston-based renters group that campaigned for the moratorium. “These corporate landlords seem desperate to be able to evict people in the middle of this crazy pandemic. I’m not sure why this is foremost on their minds.”

Many businesses of all types have suffered and sacrificed to help combat the spread of the coronavirus, said Joe Kriesberg, president of the Massachusetts Association of Community Development Corporations. He notes that restaurants and gyms generally aren’t suing the state for the business they’ve lost through shutdowns.

“This is an unprecedented crisis, and lots of people have lost business through no fault of their own,” he said. “I don’t know that landlords are any different from any other business owner, from a public policy perspective.”

Rather than fight in court, Kriesberg said, landlords and tenants could find common ground in pushing for help for renters who have fallen behind due to lost jobs and income. Some landlord groups, including the National Multifamily Housing Council, have lobbied for funding for rental relief in federal stimulus bills, and MassLandlords has pushed for state-level programs, as well.

The state is likely to be defended in the case by Attorney General Maura Healey, who in May said her office had stopped about 50 illegal evictions since the moratorium took effect, including threats to change locks and to report tenants to immigration authorities to remove them from an apartment.

Vetstein said he’s hopeful the SJC will accept the case and quickly issue a decision, based on its speedy resolutions of two other constitutional challenges during the pandemic. On April 3, the court ordered many prisoners to be released from jails and prisons, while on April 17 it ordered that signature-collection requirements be cut by 50 percent for all candidates who will appear in the September primaries.