Gov. Charlie Baker last month extended the state's eviction moratorium until October. It's good for tenants struggling in this pandemic, but some landlords are not buying it. A group of them have sued the state over the moratorium. WGBH's All Things Considered Host Arun Rath spoke with Douglas Quattrocchi, the executive director of the organization MassLandlords. The transcript below has been edited for clarity.
Arun Rath: So to be clear, MassLandlords isn't directly part of this suit but filed supporting briefs. Is that right?
Douglas Quattrocchi: That's correct. We filed an amicus brief, in other words, a friend of the court — how the court is supposed to interpret the various arguments being made.
Rath: And tell us what about the eviction moratorium doesn't sit right for MassLandlords and if that's distinct from the main part of this suit?
Quattrocchi: Sure. So we've said from the beginning that this is going to be a serious problem. We need to have homes for people to stay in during a stay at home order and for as long as the economic recovery takes. And the only question on our end has been, when can we start to fund this? The commonwealth shut down all the businesses. A lot of our landlords don't have any rent because a lot of our customers don't have any work. We rent in the niche that’s been hardest impacted by this. Our renters work in food services and entertainment, athletics and sports. And there's very little that folks can do to earn an income now. So that's different from the main point of the litigation that was heard on Thursday, because the main point of the litigation is primarily that the law is unconstitutional, which it probably is, to have ordered all of these landlords to provide free housing without funding it. But when we argue, we argue, well, you know what? We wouldn't grouse about the constitutionality of it if we were being paid for the moratoriums. Does that make sense?
Rath: Yeah. Are you able to explain the constitutional argument?
Quattrocchi: Yes, sure. So there are three constitutional arguments: Separation of powers, takings and access to justice. So the first is kind of the inverse of what some folks complain about, judges legislating from the bench. Legislators can't tell judges how to decide cases. That's kind of what happened with the eviction moratorium. They said judges can't schedule any kind of court event whatsoever. And that's kind of unfair because a lot of folks think judges are mean and they'll evict people. But the housing court staff are enormously competent and well-trained. They mediate agreements. They help people get RAFT and the new ERMA funding could all be available through court. So a lot of folks who go to court end up with an agreement that lets them stay in their homes and that usually happens very quickly. If you come to an agreement, if there's money available, that can be a very positive thing very quickly. The legislature turned that whole thing off. So that's the first issue.
The second issue is what we're talking about: takings. If you're going to appropriate or possess property for a public purpose, you need to reimburse the owner for it. Usually takings get talked about in the context of, like, they're going to demolish your building to build a fort or a gun battery or something like that. That's historical. But in the modern sense, it's you know, the governor says, 'You can't rent out your apartments to anyone but the current renter who's there. And if they don't pay, you can't do anything about it.' That's a taking.
And then the third part is access to justice, really. It would have been one thing if the legislature said, "All right, well, we'll let you file. You'll go to court. If after all that, there's still no money and you get what's called an execution, which is the ability to regain the unit, we won't let you remove anyone. So at that final step we’ll intervene." They know they get to stay somehow. And that's not what they did. They cut off all the court process. So really, there's no one else at the moment who can't go to court for a claim, except landlords. So it's kind of an unfair access to justice issue. Those are the three main points.
Rath: And, understanding the financial issues that come to bear on the landlords and not minimizing that — wouldn't it still be the case that if the moratorium were it to end today, would there be the potential, the prospect of thousands of evictions?
Quattrocchi: Yes. First of all, it's important to recognize that the court staff, although they've agreed to sit four or five times more frequently than they would have before the pandemic, it's still going to take a long time for those court processes to work. And so we're telling landlords it would be — if the moratorium were lifted today, it would still be six months before you got a hearing potentially and up to 18 if you needed a jury trial. So it could be a very long time. But we want to help everybody to not worry about that, because it's no good going through life worrying about a court date hanging over your head. We'd like the government to say, the commonwealth to say, we're going to guarantee all this housing out of future tax revenue. We have some ideas for how that could be funded — but basically, tell everyone, 'Don't sweat it. Don't engage in risky behavior. If you can't work, just deal with it for now because we've got your back.' That would be much more helpful. So even if the moratorium is overturned, it doesn't really help landlords immediately, and it certainly doesn't help renters. So that's why we didn't actually litigate this case the way it’s been presented.
Rath: Right. And, you know, back rent isn't addressed in the eviction moratorium. One of the things that you and I spoke about the last time we spoke, that was very interesting — you talked about the so-called mom and pop landlords, which are a lot of the people that you're representing and the impact this has on them.
Quattrocchi: Absolutely, it's been devastating for a lot of folks. I talked to the landlord of the northern Worcester County. She's selling her place tomorrow. She can't afford to rent it anymore. I live in Worcester, so I know Worcester folks. There’s a landlord in Worcester, he’s 62, retiring many years earlier than he thought he would from being a full-time mom and pop type landlord, where he does everything himself because he has no rent coming in. I know a landlord who provides rooming houses to folks who rent by the week, who generally have a lot of need for supportive services and so on. He's got almost 100% non-payment across his buildings. And taxes are still due. We have to pay real estate taxes because that funds municipal services and infrastructure. We have to pay our mortgages because we didn't get CARES Act forbearance, because we don't live in our buildings, typically. You have to pay insurance. We have to snake drains and exterminate if there's mice or cockroaches or whatever. So there's a whole bunch of expense that goes into housing. And even if we make it free for renters, if we don't make it equally free for landlords, we've got a real disconnect.
Rath: Douglas, we just have a moment left, but I'm wondering if, with the moratorium being far from perfect, losing the moratorium would be far from perfect. Is there any prospect of a third way to work this out?
Quattrocchi: Yeah, we're advocating for what we call a fair and equal housing guarantee via surety bonds. Surety bonds are kind of an abstract concept, but in general, the commonwealth would guarantee all housing now, and we would look at the causes of the housing crisis and try to create a pigouvian tax that would tax some of the reasons why people can afford rents like large minimum lot sizes and single-family zoning. And we would use that tax to either drive zoning changes, which would create more housing, or fund the back rent problem that we have.
