Boston and New York Landlords Sue Over COVID-19 Eviction Moratoriums

Landlords in New York and Massachusetts have filed legal challenges to eviction moratoriums put into place as a result of the COVID-19 pandemic, arguing that the bans on eviction are unconstitutional.

On May 27, 2020, a group of landlords in Westchester County, NY filed a lawsuit against New York Governor Andrew Cuomo challenging his extension of a previously enacted eviction moratorium. The owners say that the moratorium violates their contract and due process rights and ‘constitutes and illegal taking’  of the landlords properties. Filed in federal court in White Plains, NY, the suit aims to reverse two provisions of the May 7 extension order: (1) the prevention of landlords from seeking eviction proceedings through August 19; and (2) the option for renters to use their security deposit towards their rent payment.

The plaintiffs are taking the position that “the order has given carte blanche to tenants to withhold rent without immediate repercussion.” The complaint further states, “Plaintiffs and all similarly situated landlords are precluded from asserting their rights and obtaining relief to protect their property, all the while remaining obligated to pay all of their own carrying costs and other expenses, including taxes to the various governmental divisions of New York State.”

In Massachusetts, a similar complaint has been filed to challenge the state’s eviction moratorium that was enacted in April. Attorneys representing two Boston-area landlords filed an emergency petition in Massachusetts’ Supreme Judicial Court on May 29 seeking to nullify the ban on the grounds that the moratorium is unconstitutional and oversteps its legal bounds.

The MA moratorium prohibits nearly all residential evictions, with the exception of those involving criminal activity or lease violations that could negatively impact the health and safety of other residents. The ban is set to expire on August 18 or 45 days after Governor Charlie Baker lifts the Coronavirus state of emergency, whichever comes first. Additionally, the law permits the governor to extend the moratorium in 90-day increments.

Owners and landlords in Orange County, CA and Union City, NJ have also pushed back against eviction moratoriums enacted at the local level in recent weeks.

These legal challenges come during a turbulent time in the United States, which has seen unemployment numbers increase dramatically, leaving many industries – including real estate – in desperate straits.

While there is also an eviction moratorium at the national level for federally-assisted properties, many of these properties also are receiving mortgage relief (with the exception of LIHTC properties, which are also subject to the federal moratorium). There generally is no such relief for properties subject to state moratoriums.