Mass. Landlords Seek To Block 'Nuclear' Eviction Ban

By Brian Dowling
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Law360 (July 30, 2020, 6:12 PM EDT) -- Landlords suing to invalidate a recent Massachusetts law banning the vast majority of evictions told a state judge Thursday that the legislature's "nuclear option" of halting housing court hearings for such disputes goes too far in eroding essential property rights.

A lawyer for landlords Mitchell Matorin and Linda Smith urged Suffolk County Superior Court Judge Paul Wilson to lift the moratorium signed by Gov. Charlie Baker on April 20, which stops nearly all new eviction filings and freezes existing eviction cases in their tracks.

The legislature passed the measure to avoid a tsunami of eviction filings amid the COVID-19 pandemic that threaten to exacerbate homelessness issues.

But the landlords' attorney, Richard D. Vetstein of Vetstein Law Group PC, told the court Thursday that fears of mass homelessness driven by a sudden wave of evictions are overblown. More limited actions to curb evictions, like those taken in New York and other states, would have better served the current situation, he said.

"What the moratorium does is it eviscerates that [property] right completely across the board and applies to virtually every summary process," Vetstein said.

He added: "It's the nuclear option, when they could have used a scalpel and incision. Instead, they bombed the whole thing."

The moratorium prevents the filing of new evictions and suspends all pending residential and commercial summary process cases, with few exceptions for public safety and health.

The landlords filed an emergency petition in late May asking the state's highest court, the Supreme Judicial Court, to enjoin state officials from enforcing the moratorium. In late June, that court transferred the case to the trial court in Suffolk County, which aired the arguments Thursday via video-conference.

The lawsuit argues that the eviction moratorium violated the state constitution's separation of powers and its promise of access to courts. The policy also amounts to an illegal taking of private property by removing the core legal remedy to regain possession of a house or apartment, namely eviction, the suit claims.

Jennifer Greaney of the Massachusetts Attorney General's office said the moratorium doesn't tread on the core responsibilities of the judicial branch and is more like a stay of a court's judgment.

But Vetstein countered that the legislature's proper role in enabling stays of court judgments occurs where it authorizes a judge to issue a stay, not when lawmakers issue a stay themselves.

"This is literally state representatives trying to be housing court judges," Vetstein said.

Greaney told the court that the moratorium's limited nature doesn't raise concerns about access to courts because it isn't "open-ended."

The moratorium is set to lift Oct. 17 — per the governor's recent extension — or 45 days after the state exits its pandemic state of emergency, whichever is sooner.

Attorney Joseph Michalakes, representing City Life/Vida Urbana and other tenants' rights groups and community organizations interested in the litigation, argued that the moratorium only takes away one of the many remedies that landlords have to resolve tenant claims. For example, a landlord with a non-paying tenant can file a breach of contract suit to recover unpaid rent.

Vetstein said a money judgment on a breach of contract claim doesn't help a landlord who has been deprived of regaining possession of the apartment. It also doesn't address evictions that aren't connected with non-payment, such as no-fault evictions when a tenant no longer has an ongoing lease or cases in which someone who isn't a tenant is staying at the property.

Judge Wilson took the preliminary injunction request under advisement.

The landlords are represented by Richard D. Vetstein of Vetstein Law Group PC and Jordana R. Roubicek.

The state government is represented by Jennifer Greaney of the Office of the Massachusetts Attorney General.

The amici are represented by Joseph Michalakes of Greater Boston Legal Services.

The case is Matorin et al. v. Sullivan et al., case number 2084cv01334, in the Suffolk County Superior Court for Massachusetts.

--Editing by Michael Watanabe.

For a reprint of this article, please contact reprints@law360.com.

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