Home » BLOG » This morning I watched the live Hearing on whether the moratorium is constitutional or not

This morning I watched the live Hearing on whether the moratorium is constitutional or not

I and about another 350 people just finished watching the Hearing on whether the Moratorium is Constitutional or Not.

First, I want to say that attorney Vetstein did an excellent job! Please visit his web site https://massrealestatelawblog.com, subscribe and donate because they are only getting paid thru donations. Donate to attorneys Vetstein and Jordana Greenman here https://paypal.me/pools/c/8orbLzpxbY

Unfortunately the judge for some reason allowed the Amici of the tenants to have an attorney but did not allow the Amici of the landlords to have an attorney so attorney Vetstein was one against two lawyers. That was not fair.

The State argued that they created the eviction law (ch.239) and so they can remove it if they wanted to or modify it as they wish and landlords should expect to be over-regulated in MA, that Covid-19 is bad and that homelessness, overcrowding and evictions contribute to it, that evictions are not the only way for landlords to enforce their property rights (really? you are making that argument with a straight face?),  the Legislature has the right to shut down all courts below the SJC (I hope I misunderstood that), it’s not Taking because the landlords invited the tenants into their property (oh, comedians), that RAFT funds no longer require proof of an eviction filing (that’s fine but don’t they require a Notice to Quit at least?…which doesn’t exist because we can’t serve it?) and they go directly to the landlord (of course they forgot to mention that only the tenant can initiate RAFT not the landlord) and that the harm done to the State would be bigger than that done to the landlords if the Moratorium was lifted etc.

Mr. Vetstein pointed out that it’s not about money, it’s about constitutional property rights, it’s one thing to have an Eviction Moratorium, but this one goes too far, you can’t even file a notice to quit, you cannot file a case and you are prevented from seeing a judge, evictions are the one right which the Legislature cannot take away, in some cases evictions are the only way to enforce property rights which are major rights specifically mentioned in the Constitution, you can’t sue the tenants in small claims if you don’t need the money and you just need possession of your property, the Moratorium is unfunded for landlords, it is Taking because tenants are only invited to stay until they pay the rent, and that the Constitution was created exactly in anticipation of tough situations like the one we find ourselves in today and that’s exactly why we need to adhere to it, etc.

The argument that I liked most of all is the “it’s one thing to have an Eviction Moratorium but this one goes too far and it crosses the line.” The reason I like it most of all is because it immediately invalidates, undercuts and makes harmless MOST of the tenants arguments as you AGREE with most of their arguments. Once you agree with someone on something that specific argument is gone. Besides, arguments about “tsunamis” and the rest are irrelevant to the constitutionality of the Moratorium so they need to be made harmless and put aside. I can imagine the judge almost in shock would be asking “Wait, so you are NOT against an Eviction Moratorium?” “That’s right, judge, we are not against an eviction moratorium which respects the Constitution. Just like the opposing side we want to lower evictions, Covid-19 infections, homelessness, overcrowding, discrimination, etc, just like them we believe that the State HAS the right to over-regulate landlords, modify ch. 239, use the police power, and just like them we think that an Eviction Moratorium might be needed, etc. But this particular moratorium crosses the line. In order for the constitutional deficiencies of this Moratorium to be cured, what needs to happen is a) immediate and full access to the courts as it was pre-Covid (except we are ok with virtual hearings) and b) that this Moratorium is funded, in other words, the State fairly compensates the landlords for the amount ruled by a judge since it was the State who ordered the tenant to stay in the apartment and not move.”

If the State insists on having a version of a Moratorium, the system under a Moratorium might work as follows:

a) tenant is late with the rent -> notice to quit is served and hearing set -> judge rules that the tenant owes 100% (or less to account for poor conditions) -> if the tenant can pay it, fine, if not then the State pays it for the duration of the Moratorium. Somewhere I was reading that these are between 75% and 95% of all evictions. 

b) tenant is asked to leave without cause or because lease expires -> notice to quit is served and hearing set -> judge rules that they can stay for an agreed time in exchange for rent or the judge rules that the tenant must leave in certain limited (due to Moratorium) cases and the specific situation of the landlord is taken into account as well. 

c) tenant is asked to leave due to violation of the lease -> notice to quit is served and hearing set -> judge evaluates the severity of the breach keeping in mind that there is a Pandemic going on and rules one way or another. 

The only difference pre-Covid-19 and during-Covid-19 should be that the hearing need not be in person, they can be over Zoom, the non-payment cases will be covered by the State in the very limited circumstances where a judge determined that a tenant cannot pay despite RAFT’s or similar help and no-cause and for-cause cases will go on as pre-Covid except that all parties need to keep in mind that there is a pandemic going on and be more flexible. I don’t see how the State currently can preserve the tenancies of those who are being asked to leave for cause and refuse to cure it. Here we get into discussions of what is “just cause” and if that is required to evict someone or simply any contract clause violation. 

So we’ll see what this judge decides but whatever he decides, this goes to the SJC.