A change of topic today to discuss the Boston Public Health Commission’s new eviction moratorium. The order, issued on August 31, is meant to reimpose restrictions in light of the Supreme Court’s recent decision in Alabama Association of Realtors v. Department of Health and Human Services, which declared the CDC’s eviction moratorium unlawful. It may be, as some news reports suggest, that the moratorium served a political purpose, given that Acting Mayor Janey was being pressured by another candidate in the city’s competitive upcoming mayoral election to impose a moratorium.

The Public Health Commission’s new order does not forbid landlords from serving notices to quit when a tenant fails to pay rent, or even from bringing a summary process action for possession when a tenant fails to vacate the property after the tenancy expires or is terminated. It only forbids landlords from taking the last step: having a sheriff physically evict the tenant on a writ of execution after judgment that the landlord is entitled to possession.

It’s also important to note that while the eviction moratorium that the Massachusetts legislature adopted at the height of the COVID epidemic has expired, Massachusetts law has always had significant protections for tenants, and even now, the law provides for continuances and stays of execution when a tenant whose ability to pay the rent was affected by COVID has a pending application for rental assistance (see Section 2(b) of Chapter 257 of the Acts of 2021).

Within the past year, I’ve represented both landlords and tenants in nonpayment of rent and lease termination cases. I have doubts about the wisdom of a general eviction moratorium not tied to a tenant’s efforts to obtain rental assistance, mainly because an eviction moratorium might only deepen the tenant’s financial woes in the long run (because the tenant remains liable for the unpaid rent and might end up with a very large debt that he or she can never realistically repay). But leaving aside questions about the wisdom of the new moratorium, I am concerned that it might simply be unlawful. The Boston Public Health Commission was created by statute, Chapter 147 of the Acts of 1995. The statute gives the BPHC the power make public health rules and regulations, but only consistent with other state law. It has the power:

to adopt, amend and repeal reasonable health regulations not inconsistent with any public health regulation of the state department of public health or with any other provision of law, and prescribe for any violation of a health regulation made under this clause a fine according to the nature of the offense.

The problem seems to me to be that the moratorium is inconsistent with another provision of law, namely, the summary process laws, which provide, in general, that the landlord is entitled to possession in the common case where the tenant fails to pay and the landlord has properly terminated the tenancy (G.L. c. 239, s. 1), and which specifically provides that if the court finds the landlord is entitled to possession, he is entitled to an execution (G.L. c. 239, s. 3). How can a commission created by the legislature make a regulation contrary to state law, or interfere with the execution of a court’s judgment? The problem is apparent in the very first words of the moratorium: “Notwithstanding G. L. c. 186, G. L. c. 239 or any general or special law to the contrary.” From where does the BPHC claim to get the power to override the legislature?

I would urge everyone who is looking only at the ends, and not the means, to imagine the BPHC making regulations contrary to state law to serve ends that might seem less useful. Massachusetts, like some other states, has recently legalized cannabis as a matter of state law (though it remains illegal throughout the United States under federal law). If the BPHC decided to ban cannabis due to negative health effects, one response would of course be to argue the merits and to say that the BPHC simply “got it wrong.” But wouldn’t folks also say that the BPHC was overstepping its bounds and shouldn’t contradict the legislature? You bet they would. You could imagine many other examples.

In short: the moratorium seems to be an overreach by the BPHC. Folks who are in favor of greater protections than the legislature has put in place should seek new legislation.