Here, the ruling of the Massachusetts Superior Court (Suffolk County) in Matorin v. Commonwealth of Massachusetts, No. 2084CV01334 (Aug. 26, 2020).
The short story is that the court denied the plaintiffs' motion for a preliminary injunction on the grounds that they were not likely to succeed on the merits of their as-applied regulatory takings challenge to the Commonwealth's series of moratoria on residential evictions. The moratoria allow the property owners to recover possession after expiration, and the tenants are not freed from the eventual obligation to pay rent.
Skip forward to page 17 for the court's takings analysis (although it would be a shame to not read the intervening pages, because the opinion also deals with the related separation of powers and access-to-the-courts questions). The court first rejected the argument that the moratoria allowed physical occupations (based on Yee), because it isn't "permanent," merely temporary. And (also based on Yee), this isn't a government occupation or a government-sponsored occupation, these are tenants "whom the Plaintiffs invited in." Slip op. at 20. [Barista's note: true, but isn't this a case where the government may not have invited the tenants in, but has withdrawn the usual, reasonably-expected government assistance in getting them out when they haven't paid rent? We're not sure we see much of a difference between the two.]
The property owners fared no better on either their Lucas or their Penn Central regulatory takings claim (if indeed they made a Lucas claim). A total wipeout of use for a temporary period does not result in a taking because, you know, it is temporary. (Tahoe-Sierra). And the moratoria have not even deprived the owners of all use of the land. Some tenants are paying rent. Hmmm. [Barista's note: true, some units have paying tenants, but it isn't those units the owners are complaining about, no? Is this a Murr "denominator" problem?]
As for Penn Central, the economic impact hasn't been shown (on the value of the entire property), the moratoria do not interfere with investment-backed expectations because they are just delays in receiving rent, not permanent denials (although we ask: what are the chances that defaulting tenants will, when this is over, actually pay the back rent?), and the character of the government action is that of an emergency order (COVID did it).
So there you go. Do we think this is the end of this story? Probably not, and we expect further pursuit up the judicial food chain. Stay tuned.
Disclosure: Justice Paul D. Wilson, the presiding judge who wrote the opinion, is a friend and colleague. (He also is the co-author of one of our favorite law review articles.)
Matorin v. Commonwealth of Massachusetts, No. 2084CV01334 (Mass. Super. Aug. 26, 2020)
