Since the COVID-19 pandemic began, it became clear there would be massive increases in unemployment as citizens were sent home and businesses suffered from drastic drops in revenue and unprecedented closures of private businesses across America. This created fear that many residential tenants would be losing the income they needed to make their rent payments, so eviction moratoriums commenced. Regardless of your individual position on eviction moratoriums now exceeding one year, the burden this has placed on landlords and the maintenance of properties and buildings seems to get lost in the conversation.
$47 billion were allocated by the federal government under the Emergency Rental Assistance Program, funded by the CARES Act, to help distressed renters. However, as of last week, only $3 billion or roughly 7% of those funds have actually been disbursed. An estimated 11 million adult renters are considered seriously delinquent, meaning that their landlords are also in crisis as their mortgages and other financial obligations must still be paid. A wave of evictions is now stalled, but the inevitable is coming.
The use of public health laws to justify this eviction moratorium extension is a precarious one at best, as even Dana Remus, White House counsel, last week expressed concerns about its legal viability. The Supreme Court of the United States weighed in after the Alabama Association of Realtors filed an Emergency Application for the Vacating of a Stay issued by the Appellate Court, thus preventing the estimated 11 million effected landlords in America from commencing eviction actions against some of the estimated 30-40 million renters that were suffering financial hardship.* Over $13 billion in estimated unpaid rent per month to landlords was set forth as a purpose by the applicants for this CDC moratorium to end, claiming that relying on the Public Health Service Act codified in 1944 was to go too far with the reach of the CDC without congressional action.
In a close 5-4 decision, the Court ruled that the order pending appeal which allows the eviction moratorium to stay in place until July 31, 2021, could remain. However, Justice Kavanaugh, who voted with the majority and was thus a deciding vote, agreed in his brief concurring opinion “that the CDC exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” He then finished by saying “in my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31, 2021.” Kavanaugh has proven himself in a short time on the Court to be a champion for checks and balances and placing the onus on Congress to do its job, as he did here. His opinion left it crystal clear that any further extensions of the CDC-enacted eviction moratorium without congressional action would fail if back before the Court, as his vote would switch. Nevertheless, the White House and CDC did just that, and extended the moratorium expected to cover over 90% of America now through October 3, 2021. We now wait to see what the judiciary does between now and then. It is my opinion that this is outside the scope of the CDC and is an overreaching action absent constitutional or congressionally approved authority.
If you have any questions about how this effects your rights as a tenant or landlord, do not hesitate to reach out to us. We will gladly be able to help.
* Alabama Association of Realtors v Dept of Health and Human Services, 2021 WL 1779282