Many landlords have asked what evictions are currently permitted in light of the eviction moratorium? Governor Baker signed H.4647 into law on April 20, 2020: “An Act Providing for a Moratorium on Evictions and Foreclosures During the COVID-19 Emergency” (the “Moratorium”). The Moratorium severely limits a landlord’s right to evict a tenant. This article will describe the types of evictions that may and may not proceed.
The Moratorium pauses all “non-essential” evictions. A non-essential eviction is an eviction for:
- for non-payment of rent;
- resulting from a foreclosure;
- for no fault or no cause; or
- for cause that does not involve or include allegations of:
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- criminal activity that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public; or
- lease violations that may impact the health or safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property or the general public.
Landlords are prohibited from serving a notice to quit, filing a summons and complaint, enforcing an existing execution, or proceeding in court for all cases except those identified in item 4. Existing cases are essentially paused until the Moratorium expires. The Moratorium expires on the later of: 1) August 18, 2020, or 2) forty-five (45) days after the COVID-19 emergency declaration has been lifted, whichever is sooner. An unusual feature of the law is that the Governor may extend the law in up to ninety (90) day increments, not to exceed forty-five (45) days after the COVID-19 emergency declaration has been lifted. Governor Baker has extended the Moratorium through October 17, 2020. The practical effect is that the Moratorium is indefinite in length.
As noted above, evictions may proceed for lease violations or criminal activity that impacts the health and safety of other residents, health care workers, emergency personnel, persons lawfully on the subject property, or the general public. We should consider some examples:
Example 1: A tenant is constructing or storing incendiary devices on the property. This activity is illegal and it impacts the health and safety of the persons protected by the Moratorium. It would seem that an eviction could proceed under those facts.
Example 2: A tenant has a dog in the apartment which violates the terms of the lease. This activity is not illegal and it does not impact the health and safety of the persons protected by the moratorium. This eviction could not proceed under these facts.
Example 3: A tenant Is operating an unlicensed at home business in violation of the lease. The activity is illegal because it is unlicensed and it may impact the health and safety of the persons protected by the moratorium since it invites outside public onto the property which increases the likelihood of spreading COVID-19 to other residents. Further, some types of professions are highly regulated to protect the public. Performing such a profession unlicensed may be deemed to impact the health and safety of persons lawfully on the property and the general public. These facts may entitle the landlord to proceed with an eviction.
The natural question is “what is a landlord to do?” The Moratorium specifically states that “Nothing in this section shall relieve a tenant from the obligation to pay rent or restrict a landlord’s ability to recover rent.” As most landlords know, most judgements against tenants go unpaid. While impractical, a suit for breach of contract for non-payment or rent may proceed in spite of the Moratorium. A landlord may also see equitable relief. For instance, if a tenant is damaging an apartment, a landlord may bring a suit for breach of contract and ask the court to enjoin the tenant from making further damage. If the tenant continues, the landlord may request that the tenant be held in contempt. Each of these remedies lacks the punch that an eviction provides a landlord. The Moratorium provides relief to some landlords by prohibiting certain foreclosures.
Legal challenges to the Moratorium have already taken place. In Matorin et al v. Commonwealth of Massachusetts, et al, Suffolk Sup. Ct. CA 2084CV01334, Judge Paul D. Wilson denied the Plaintiffs’ motion for a preliminary injunction. Click here to read the full text of the decision. Judge Wilson’s decision carefully considered the Plaintiffs’ constitutional claims including: 1) separation of powers under Article 30 of the Massachusetts Declaration of Rights, 2) Access to the Courts under Article 11 of the Massachusetts Declaration of Rihts, 3) Taking of Real Estate under Article 10 of the Massachusetts Declaration of Rights. Judge Wilson found that the Plaintiffs are unlikely to succeed on the merits of their claims, they are unlikely to suffer irreparable harm, and the balance of harms and public interest favor upholding the Moratorium.
The Plaintiffs in the Matorin case also filed suit in the United States District Court District of Massachusetts. See. Baptiste et al v. Commonwealth of Massachusetts et al, CA 1:20-CV-11335. The Plaintiffs are seeking a preliminary injunction. While Judge Wolf has not issued a ruling on the Plaintiffs’ motion, the Plaintiffs’ motion may be read here. Plaintiffs argue that the Moratorium violates their rights under the First Amendment to the U.S. Constitution, the Moratorium is a taking of real property in violation of the Fifth Amendment to the U.S. Constitution, and Violates the Contracts Clause under Art. 1. § 10 of the U.S. Constitution. Judge Wolf is likely to issue a ruling on the motion at any time.
The Moratorium has significantly limited the availability of evictions in Massachusetts. If you would like to discuss the Moratorium, contact Benjamin Cote.