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A lawsuit seeking to end the state’s eviction moratorium has been denied a preliminary injunction by a Suffolk Superior Court judge.
Judge Paul Wilson ruled Friday that the moratorium was a key part of the state’s fight against COVID-19 and the risk a wave of evictions would play to the state’s economy and health would outweigh the harm being done to landlords with tenants who could not pay rent.
Mitchel Matorin, a Worcester landlord, and Linda Smith, a Hudson landlord, had sued the state saying the moratorium represented an unconstitutional taking of their property without compensation and an exclusion from the court system, among other claims.
Jordana Roubicek Greenman, one of the lead attorneys in the case, told Banker & Tradesman her clients intend to appeal to the Supreme Judicial Court.
“We’re not involved in this case because we want to throw anyone on the street. That is not the point. The people have rights, but they’re being violated,” she said.
The judge in a parallel federal suit had earlier telegraphed that he would likely rule against the plaintiffs, but is now considering a temporary injunction suspending the eviction freeze. A decision in that case could come as early as this week.
The ruling comes as MassLandlords announced an effort to organize members who want to sue the state for compensation in exchange for continuing to provide apartments to renters unable to pay. The announcement was made in an opinion piece published in Banker & Tradesman Sunday.
Doug Quattrochi, the group’s executive director, told Banker & Tradesman his group will not be suing the state in order to enable the eviction of any tenant.
“We want the commonwealth to provide the funding for all the rental housing that people can’t afford,” he said. “Either the commonwealth can do it of its own accord or the courts can offer reimbursement.”
Such a suit would rest on provisions in the state Civil Defense Act, which governs states of emergency, that allow the state to take possession of private property for public purposes during an emergency. However, the law states the property owner must be given “reasonable” compensation. By denying landlords the opportunity to replace non-paying tenants with paying ones, the argument goes, the state has taken control of all rental apartments in the state.
Quattrochi said the moratorium, which is set to expire Oct. 17, has already started to drive some small landlords to sell their properties, including a member of the organization’s board. Others are holding apartments vacant as they come open, he said.
Greenman told Banker & Tradesman one of the plaintiffs in the federal case, Randolph nurse and landlord Marie Baptiste, is owed $23,000 from her tenants and has had to borrow extensively from her retirement savings and has delayed paying city water and property tax bills as a result.
“An empty apartment is definitely better than one where someone’s living there and they have to pay for all the repairs and the winter heat and all the utilities being used,” Quattrochi said. “Housing providers are essential workers. You have to keep the drains flowing and the heat on.”
So far, the state and municipalities have provided several tens of millions of dollars in rent subsidies – including $20 million in state emergency rental assistance and a further $20 million for the RAFT traditional emergency assistance program – said Eric Shupin, director of public policy at the Citizens’ Housing and Planning Association, but so far it does not match the scale of unmet rent and mortgage payments statewide.
“I’ve seen numbers of upwards of $100 million a month in Massachusetts. That’s a scary number and the question is, can we possibly meet that need?” he said.
Gov. Charlie Baker’s decision to extend the eviction moratorium past its initial August end date took pressure off state legislators to come up with a solution immediately, Shupin said, leaving more time for real estate interests, housing activists and tenants’ rights groups to come up with a solution.
“These are things that would normally take an entire legislative session or more to do, and unfortunately we don’t have the luxury of time right now, because people are hurting,” Shupin said.
Currently, the only formal proposal before the legislature is a bill from progressive leader Rep. Mike Connolly and Housing Committee co-chair Rep. Kevin Honan that includes a raft of proposals roundly condemned by the real estate industry.
Updated 12:45 p.m., Sept. 1: This story has been updated to include comment from plaintiffs’ lawyer Jordana Roubicek Greenman.
