CDC eviction moratorium raises constitutional questions
Order pushes boundaries of the agency’s public health authority
WHILE WE HAVE BEEN in federal court arguing the constitutionality of the Massachusetts eviction moratorium, the Trump administration’s Centers for Disease Control and Prevention (CDC) just issued an emergency order imposing a nationwide residential eviction moratorium through December 31, 2020. The moratorium, issued under the CDC’s emergency authority to respond to public health crises and without the usual rule-making and public comment process, would cover millions of renters who are unable to pay their rent due to the COVID-19 crisis.
The moratorium is scheduled to be effective as of September 4, 2020. Unfortunately, the moratorium does not provide for any rental assistance funding to landlords or tenants, so like the Massachusetts moratorium, private landlords will again shoulder the entire economic burden of rental losses.
The CDC eviction moratorium only applies in states where they do not have an existing residential eviction moratorium, or if they do, where it is less strict than the CDC order. Thus, in Massachusetts, the CDC order would not apply while the current moratorium is in place through October 17, because the Massachusetts moratorium is far stricter than the CDC order.
Gov. Baker could extend our state moratorium for an additional 90 days, and of course, our challenge to it is still pending in federal court. If Gov. Baker does not extend the state moratorium past October 17 or the federal court strikes it down, this new CDC moratorium would take its place through December 31. The CDC retains the authority to extend the moratorium for any amount of time. Of course, by then there could be someone new in the White House.
- Unable to pay rent due to a coronavirus-related job loss or income reduction, or qualified for a direct stimulus payment under the CARES Act or expect to earn less than $99,000 in 2020, or $198,000 if filing a joint tax return;
- Have made best efforts to obtain all available government assistance to cover rent;
- Are unable to pay full rent due to a substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out of pocket medical expenses;
- Are using best efforts to make timely partial payments of rent that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses; and
- Eviction would likely render the tenant homeless or force him/her to move into and live in close quarters in a new congregate or shared living setting because the tenant has no other available housing options;
- Unable to pay rent because of financial hardship due to COVID-19, that they have made your best efforts to make timely partial payments and that they would likely become homeless if evicted.
The order is unclear how all of these certifications will be confirmed for truthfulness. Most likely, state courts will have to establish a process where a landlord can challenge a tenant’s hardship declaration. The order does specifically say that tenants are not relieved of the obligation to pay rent, but the overall intent of the order is to ban evictions for renters who cannot pay their rent.
The CDC eviction moratorium only applies to non-payment of rent situations, as outlined above. It does not apply to the following situations where a tenant engages in:
- Criminal activity on the premises
- Threats to the health and safety of other residents
- Damage or posing an immediate and significant risk of damage to property
- Violations of building, sanitary and health codes
- Violating any other lease provision, other than the payment of rent
The order, which is quite poorly drafted, applies to “any action by a landlord, owner of residential property, or other person with a legal right to pursue eviction or possessory action, to remove or cause the removal of a [tenant] from residential property.” Without further definition or clarification, we don’t know whether the CDC order would prohibit notices to quit/vacate, commencing an eviction case, prosecuting an existing eviction case, or just the final judicial act of issuing a move-out order.
The CDC eviction moratorium also provides for incredibly severe and punitive penalties and even criminal liability for landlords who violated it. Landlords can be fined up to $100,000, or up to $250,000 if the violation results in death. The Department of Justice is also authorized to bring civil and criminal charges against landlords.
While I have not yet done a deep dive into the legality of the CDC eviction moratorium, having just fully briefed the federal court on the constitutionality of the Massachusetts eviction moratorium, many of the same problems are clearly present here. There would be an argument that the CDC moratorium constitutes a “taking” of rental owner’s property in violation of the Fifth Amendment, a substantial impairment of leases under the Contracts Clause, a violation of the right to petition and access courts under the First Amendment, and a ban on commercial speech under the First Amendment. There also appear to be substantial problems with the CDC’s authority to issue such a sweeping economic regulation under its public health authority, as well as its bypassing of the usual administrative rule making procedures under the federal Administrative Procedures Act.As we told US District Court Judge Mark Wolf last week, the CDC eviction moratorium has no impact whatsoever on our legal challenge to the Massachusetts eviction moratorium. However, we are looking into challenging the CDC order here in Massachusetts.
Richard Vetstein is a nationally recognized real estate attorney and lead counsel for a lawsuit challenging the state’s eviction moratorium.