Doug Quattrochi
In April, the Massachusetts legislature enacted an eviction moratorium noteworthy for its first-in-the-nation carelessness.
It is right that we should seek to keep everyone stably housed during a pandemic. But in terms of process, constitutional muster and its long-term effect on ownership, this particular law has set in motion a chain of events that could alter the face of the commonwealth for the worse.
Lacking Substantive Due Process
Normally, a bill becomes law after years of stakeholder input, including public hearings, written testimony and possibly an election or two. But the first instance of an eviction moratorium (HD4935) was filed March 26, and the final bill (H.4647) was signed by Gov. Charlie Baker April 20, less than a month later.
There was not a single public hearing or piece of written testimony filed. The normal rules were not in effect, meaning any one legislator speaking out against the bill could stop it. One did for one day, then gave up. In the end, no one asked how this eviction moratorium was going to pay for itself.
On April 16, we appealed to the governor and the Governor’s Council, who under the Massachusetts Constitution may seek the opinion of the justices “upon important questions of law and upon solemn occasions.” What more solemn occasion could there be, than housing during a stay-at-home order? We got through to the office. Multiple members reported being on hold for an hour waiting to speak. Alas, the governor signed the legislation without taking our legitimate concerns into consideration.
Totally Unconstitutional
The eviction moratorium is not close to passing constitutional muster. It is almost as if the renter advocates behind it are daring the real estate industry to make a federal case of it.
First, the law has blocked access to justice. If a renter is dealing drugs, and the landlord cannot show that the activity may have an impact on health or safety, the courts are closed. The courts are closed for nonpayment evictions that started months before the pandemic. The courts are closed for new residents trying to move into an apartment with a previous resident overstaying their lease. The courts are closed for owners looking to move back into their own unit.
Second, landlords are forced to work for nothing. We are not like the barber shop driven tragically out of business for lack of customers. At least the barber is free to watch “Tiger King.” We are barbers forced to cut hair for free.
The moratorium provides few of us mortgage relief. It provides none of us tax relief, insurance relief, or code enforcement relief; yet, the bills are all due, the repairs must still be made. The moratorium says rent is technically still owed, but if it is not paid, good luck getting it back whenever the courts reopen. Certain renters are even judgment–proof: because they receive public assistance, they can never be ordered to pay rent owed.
We have many other qualms of serious legal significance. For instance, consider the fact that separation of powers requires a law to live or die at the hand of the elected legislative branch, but this moratorium can be ended or extended by the secretary of the Executive Office of Housing and Economic Development, an unelected bureaucrat working for the executive.
And consider the restrictions on speech, which make it illegal for a landlord to so much as suggest that a renter leave an apartment in exchange for money or moving help, the so-called “cash for keys” mutual agreement. Additional regulations on notices put words in our mouths that defy freedom of expression, negotiation and enforcement.
Ruinous for Most
Massachusetts has 70,000 mom–and–pop landlords who together provide more than half our rental housing. The state eviction moratorium has immediately rendered 22 percent of our members unable to pay their bills, and 5 percent certain they will now sell out of their Massachusetts investments. If this result scales across non-members, then at least 300,000 apartment homes will go into default or change hands over the next year. The rest of our members said they were confident in their financial situation, assuming a short moratorium. In truth, it could last for years.
Who can afford to operate this housing? Here are three groups:
- First, slumlords who don’t understand the eviction moratorium, who ought not be in the business at all, will purchase at fire sale prices.
- Second, developers who have perfected the art of the tear-down will offer luxury housing cloaked in the mantle of affordable set-asides.
- Third, nonprofits, who for years have advocated for their own real estate empires through mechanisms like right of first refusal, will be able to operate with their 501(c) exemptions from real estate tax.
The eviction moratorium has ensured that the middle–class of housing providers will soon be cast into the desert, a scapegoat for the shared burden of a knee-jerk moratorium that we were ill-prepared to pay for. Private landlords are not having it, and the reverberations will be felt for years to come.
Doug Quattrochi is executive director of MassLandlords Inc.
