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A Mattapan landlord and a Boston city constable have filed suit in Suffolk Civil Court against the city and the head of its public health commission, a commission member and acting Mayor Kim Janey over the city’s latest eviction moratorium.

The two-month-old ban was announced on Aug. 31 and unlike 2020’s statewide eviction moratorium which put a halt to eviction proceedings in a court, it aims to prohibit any eviction order from being carried out. The order bans landlords and other property owners from serving or having someone else serve eviction notices and from enforcing residential evictions. The order does not apply to cases where a court has found that a tenant’s presence in a unit has created “serious violations of the terms of the tenancy that impair the health and safety of other building residents or immediately adjacent neighbors.”

The order comes on top of a state law in effect through next  year that effectively forces eviction cases where a tenant lost income due to the pandemic into a special “diversion” process that includes applying to the state for rental aid.

One plaintiff, a Mattapan resident in her early 80s named Janet Avila, claims the Boston ban has kept her from evicting a tenant who lost her eviction case in late 2019, but the eviction was not executed before the pandemic put a stop to these actions in early March 2020. The suit claims a  tenant in an apartment in Avila’s home owes her $30,000 in back rent for the last two years and the outstanding rent that triggered the original 2019 eviction.

The second plaintiff, a Boston constable named David Boudreau Sr., is losing around $10,000 per month, the lawsuit says, because the eviction freeze prevents him from doing his job as constable and leading him to fall into foreclosure on his own home. Constables are the public officials charged with actually carrying out evictions after a tenant loses their case.

The Boston Public Health Commission has decided it doesn’t have the authority to tell the court what to do, but it has the ability to cut the legs out from under whatever the court does in its statutory authority,” said Mitchell Matorin, an attorney for the plaintiffs.

The order, said Matorin and Jordana Greenman, the other attorney in the case, is preventing landlords who want to evict a tenant from taking possession of their property and forcing them to suffer serious monetary losses.

The state and the [federal Centers for Disease Control], for a while, have been shifting the burden of the pandemic onto landlords and making noise about money being available. Well, there is money available if you have a person who qualified and you’re able to wait 8, 9, 10 months, because that’s how long the backlog has been,” Matorin said. 

But the eviction ban also prevents state courts from functioning, Matorin said, by intimidating the very actors – constables and moving companies – that carry out court-issued eviction orders, creating a “constitutional problem.”

State law on eviction is so comprehensive that it occupies the entire field. You can’t have something that the state law says you don’t have any legal right to do,” he said.

Matorin said the order was political in nature, and not actually intended to prevent the spread of COVID-19, because Janey issued it after her main competitor in the Boston mayoral primary, City Councilor Andrea Campbell, publicly accused her on Aug. 30 of not doing enough to protect renters facing eviction.

The next day, the public health commission issued this order, clearly in response to political criticism,” Matorin said.

The suit asks for no monetary damages, but asks a judge to immediately end the moratorium.

The city did not immediately respond to a request for comment on the lawsuit.

Landlord, Constable Sue Boston Over Eviction Moratorium

by James Sanna time to read: 2 min