Fourth of July, 2020
Open Letter to all the justices of SJC, all judges of Housing Court, the full Legislature and the Governor.
Regarding The Eviction Moratorium Law
No Branch of Government Can Order Another Branch What to Do and That’s the Way It’s Supposed to Stay
Wasn’t there something in the Constitution about three branches of Government being co-equal where branches cannot tell each other what to do and how to do it? For example, the Governor cannot tell the Legislature to suspend legislative sessions or limit them. And yet this is exactly what has happened here – the Legislature passed a “law” signed by the Governor where they are ordering the Housing Court to stop seeing litigants except in one limited case where the tenant affects the health and safety of other people. The Court is ordered to stop seeing non-payment cases (what?), no-cause cases and even for-cause cases unless they fit that narrow “health and safety” requirement. Even if there were no other constitutional reasons for this law to be struck down by the SJC immediately (and there are many more reasons) for this reason alone this law is unconstitutional and the SJC must find the backbone to say so immediately as it is causing irreparable harm to landlords but forget about the landlords it’s causing irreparable harm to the rule of law and to our Democracy.
No other branch of Government made me do it, I decided it myself
Even if Justice Sullivan makes the argument that because of the pandemic he spontaneously decided one morning to stop all non-payment litigants from coming into Housing Courts, a) that is hard to believe because in his standing orders he references quite a bit the eviction moratorium law, b) no court should be able to do such a thing, after all the very purpose of its existence is to see litigants and c) courts cannot close the same way the US Postal Service, Police and Hospitals cannot close.
State of emergencies should not be used as an excuse to suspend Law and Order and that’s exactly what this is. And then you wonder why people take to the streets and are forced to self-help. Law and Order is the foundation of our fragile civilized society. If that is taken away the only other alternative is self-help “wild-wild-west” style and no one needs that. The unwritten agreement between the State and the Landlord was “stop self-help and in exchange we will provide you with a legal path to address your grievances, courts and judges will hear you and decide. The law shall set you free.” Now that the only legal path has been taken away from us, what are we left to do? It’s like saying to detectives and prosecutors “It’s a pandemic, don’t worry about investigating or prosecuting white collar crimes like theft, just let them steal as much as they want, let’s only do health and safety violent crimes”.
We have not taken the legal path away from you. There is still law and order. In fact in the new law we specifically state that the tenants can defer paying the rent for four or more months but they owe the rent in the end to the landlord. We have not legalized theft, you will get paid for the services you are required to provide.
Ok, tell that to someone who was born yesterday. Justice delayed is justice denied. Similarly rent deferred is rent unpaid for the simple reason that most tenants are judgment-proof in MA. In my 22 years as a landlord owning at any one time between 45 and 55 units I have had close to a thousand tenants come and go and over 40 evictions. I don’t remember a single time I have been able to collect on a paper signed by a MA Judge saying how much money the tenant has stolen from me. That paper is worth less than my toilet paper! There are no collection agencies in the landlord-tenant space because of the current laws and even if there are they are not allowed to pursue anything because you are not allowed to collect from tenants on Government Assistance or who make less than $2200/month or whatever the new inflation-adjusted amount is. Suffice to say these laws make most tenants judgment-proof, in other words, they are above the law. They can cause you whatever damages they want and there are no consequences to them except maybe it further damages their credit which they don’t care about as it is already bad. In a civilized society there should be no such thing as being “judgment-proof” and there should be proper mechanism for victims to collect.
Maybe those who cannot pay their debts should be ordered to perform Community Service on weekends for pre-approved organizations and those organizations instead of paying them should pay the victim of theft. If due to a proven handicap performing any community service is impossible then the state should set up an insurance sold to landlords to cover the debt. That way homelessness will decrease because landlords will be less afraid to take candidates with poor credit.
There is a better way
Landlords are not like the banks which have huge collateral. At most, landlords have 2 months of rent as collateral (the Last Month and the Security Deposit) and most landlords don’t even have that because of the poorly written and unclear Security Deposit laws. Banks, on the other hand, have a 1st lien on your building and if not paid the mortgage now they can add it back to the principal and charge extra interest on it or just foreclose at some point and collect that way. There is a huge difference.
You want to keep the tenants in their apartments and minimize moving? That’s fine. Then send the landlord a check for the unpaid rent if the tenant can show to you that the reasons are Covid-19 related. Stopping litigants from hiring Sheriffs to serve papers and going to Court is not only unconstitutional; it’s also the wrong approach. Besides, you can’t stop everyone from moving and moving doesn’t necessarily mean you will get Covid-19. Obviously, we don’t want to see a single person get sick or lose their life to Covid-19 or for that matter to cancer or the flu or car accidents or kidney disease or heart disease or obesity or hospital-acquired infections which, just as a side note here, according to the CDC, kill about 100,000 every year which is about 0.0003125% of the USA population. Landlords need the rent so that they can pay taxes and utilities to the local government which badly needs them; they are simply a link in the food chain. If you damage that link, you are damaging the whole food chain.
You want less people congregating in Housing Court? That’s fine. Then require masks, social distancing, e-filings and hearings/mediations over email and phone. I understand that this “law” may be a wet dream for people like rep. Kevin Honan and rep. Mike Connolly and for a lot of “Tenant Advocate” organizations, but this approach is simply the wrong approach. There are better ways to do this.
What needs to happen NOW
1. The SJC needs to strike down this unconstitutional “eviction moratorium” law immediately. It’s not about the landlords. It’s about you and what country you want to live in. Housing Court judges should say something too.
2. Justice Sullivan needs to order Housing Court to resume full operations, sheriffs to be able to serve notices to quit and non-payment cases to be heard by a judge because, keep in mind, these cases are not going anywhere, they are just piling up and when the “state of emergency” is over they will explode like a broken sewer pipe over your heads and flood the courts.
3. The Legislature needs to pass a law making the “judgment-proof” concept a thing of the past. There must be some consequences to debts owed not just a paper stating how much is owed. There should be a proper mechanism to collect and no one should be above the law because otherwise people with poor credit have nothing to lose if they decide to destroy someone else’s property or steal rent.