Avila v. Boston Board of Public Health, Not Reported in N.E. Rptr. (2022)

Docket:  Appeals Court decision dismissing eviction moratorium case as moot

Docket Summary:


Several cities and towns in Massachusetts (specifically, Boston, Cambridge, Brookline and Somerville) implemented temporary eviction bans in response to the Covid pandemic. Under those municipalities’ emergency orders, landlords were prohibited from enforcing any court judgment to evict a tenant for non-payment of rent. The Massachusetts Appeals Court recently declined to rule on the legality of eviction bans, because the Boston eviction moratorium at issue in that case had come to an end. However, it is worth asking a crucial question: Were those eviction bans ever legal? And the clear answer is that eviction bans without legislative approval are illegal, because those measures violated the provisions of the Home Rule Amendment to the Massachusetts Constitution.  Cities and towns need clear guidance about the constitutional limits of their powers, so that future emergencies don’t invite the same legal violations that we have seen during Covid.

Local governments’ concern for protecting the public health of their residents during this pandemic is entirely understandable. However, the Massachusetts Constitution has delegated exclusively to the Legislature the power to regulate the landlord-tenant relationship. In particular, the Home Rule Amendment forbids local government from regulating “civil relationships,” and the Massachusetts Supreme Judicial Court has long held that this constitutional phrase includes the landlord-tenant relationship.  Under the Home Rule Amendment, only the Legislature can decide to exercise that power, or whether to delegate that power to local government.  Indeed, the Home Rule Amendment provides a procedure for local government to petition the Legislature for approval to regulate in areas, such as the landlord-tenant relationship, that otherwise belong exclusively with the Legislature.  But the Supreme Judicial Court has also held that any such delegation of legislative power must be explicit, i.e., the statute must clearly state that local government can regulate the eviction process.

Nowhere has the Legislature explicitly delegated to any local government the power to order an eviction moratorium during this pandemic, whether by a general or special law.  Nor did any local government petition the Legislature for permission to do so.  As a result of these unconstitutional eviction bans, local governments have violated landlords’ constitutional rights, as citizens of the Commonwealth, to “hav[e] recourse to the laws, for all injuries or wrongs which [they] may receive in [their] person, property, or character.”  Mass. Const. Pt. 1, Art. 11.  The Legislature has enacted a comprehensive statutory process that balances the respective rights and duties of landlords and tenants regarding evictions. These recent unlawful eviction bans have prevented affected landlords from enforcing their important rights under state law.

It is unfortunate that the Appeals Court declined to rule on the merits of eviction bans. If left unchallenged, cities and towns in the Commonwealth could decide again, without obtaining legislative approval, that another public health or economic emergency, whether Covid-related or not, warrants another temporary eviction moratorium.  Indeed, the possibility of another unlawful eviction moratorium in the near future is greatly increased by the lingering and uncertain duration of this pandemic, along with runaway inflation, relentless global supply-chain problems, and spiraling fuel costs and worldwide food shortages.  In short, the precarious global situation could result in other unlawful temporary eviction bans in the Commonwealth, unless local governments comply with the Massachusetts Constitution and obtain legislative permission to issue such orders.

Let’s hope that the Supreme Judicial Court takes the next opportunity to make clear this constitutional limit on local governments’ powers. Whether landlord or tenant, our collective commitment as citizens to the rule of law must remain steadfast during times of crisis.

Ben Robbins is Senior Staff Attorney for the New England Legal Foundation,


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