Court Strikes Down Boston Eviction Moratorium

November 30, 2021

- By The MAR Legal Team

The Boston eviction moratorium, enacted on August 31, 2021, five days after the U.S. Supreme Court struck down the federal eviction moratorium, was struck down by a Massachusetts Housing Court judge yesterday.  

The decision examines the powers of the Boston Public Health Commission and concludes that the eviction moratorium represents an unlawful overreach, despite the great public interest in preventing the spread of COVID-19.  

It includes a compelling analogy to Chapter 40B, a law MAR was instrumental in protecting, which enables local Zoning Boards of Appeals to approve affordable housing developments under flexible rules if at least 20-25% of the units have long-term affordability restrictions. Judge Bagdoian writes: 

This Court perceives great mischief in allowing a municipality or one of its agencies to exceed its power, even for compelling reasons. In the current situation, the City of Boston may cite to the threat of COVID as the justification to opt out of [the state eviction law] G.L.c. 239 sec. 5. In the future, a wealthy suburb could cite to the threat of COVID or another disease as a justification to opt out of G.L. c. 40B, the affordable housing statute which, arguably, forces communities to accept greater density in the quest for affordable housing. The suburb could rationally argue that greater density equates to greater risk of spreading disease. In the Court’s view, such expansion of power by a governmental agency, even for compelling reasons, should be unthinkable in a democratic system of governance. 

After striking down much of the substance of the moratorium, the ruling upheld one piece (paragraph 2), which requires that landlords provide 48-hours’ notice before entering units and follow current COVID-19 protocols. New Boston Mayor Michelle Wu issued a statement saying that her city’s law department would seek a stay of the decision to keep the moratorium in place.