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By: John Bennett.
Yesterday the Centers for Disease Control and Prevention (CDC) surprisingly issued a nationwide order halting many pandemic-related residential evictions through the end of 2020.
This action followed President Trump’s Executive Order of August 8, 2020. That order directed the CDC (and other federal agencies) to review whether temporarily halting evictions for failure to pay rent would be reasonably necessary to prevent the further spread of COVID-19.
The executive order purports to ban evictions nationally through December 31, 2020 for renters who claim they can’t pay rent due to the COVID-19 pandemic. Thus, the ban only applies to cases brought for the non-payment of rent. It does not apply to eviction cases brought over an alleged lease violation, for instance. In order to qualify for the new eviction ban, tenants must provide a written certification covering several requirements, including: (1) that they have used “best efforts” to obtain available government assistance for rent or housing; (2) that the individual expects to earn no more than $99,000 in 2020 (or $198,000 if filing a joint tax return) or received a stimulus check under the CARES Act; (3) that they are unable to pay the full rent due to “substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses”; (4) that they will use “best efforts” to make partial rent payments on time; and (5) that an eviction would likely “render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or share living setting—because the individual has no other available housing options.”
A major deficiency of the order is that it lacks any provision for actual rent relief to tenants or property owners. Moreover, it is currently only a stopgap measure, because tenants will still owe the rent if they fail to pay at the expiration of the moratorium.
Notably, the eviction ban is a groundbreaking test of the CDC’s power that will likely prompt legal challenges. Its legal basis appears to rest on a broad interpretation of a 1944 law, The Public Health Service Act (42 U.S.C. § 264), and a related regulation (42 CFR § 70.2). The regulation cited by the CDC gives it power to take whatever action it deems necessary to stop the interstate transmission of an infectious disease. However, 42 CFR § 70.2 primarily focuses on efforts to stop disease such as fumigation, disinfection, sanitation, pest extermination, and the destruction of animals. As such, the executive order appears to be potentially vulnerable to a legal challenge over whether the CDC exercised its power beyond the intent of Congress. For more information or if you have any questions, please contact John Bennett at [email protected].