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The CDC’s moratorium on evictions is finally being lifted. This could affect millions of individuals who are behind on rent as a result of pandemic-related shutdowns.1
At the beginning of the pandemic, Congress adopted a limited and temporary ban on evictions. The ban has since been extended several times and was most recently set to expire on July 31, 2021. Around that time, the Biden Administration notified the Supreme Court that the “CDC does not plan to extend the Order further” unless there were a rise in coronavirus cases. This, of course, has occurred due to the COVID-19 delta variant.
In response to the rise in COVID-19 cases driven by the delta variant, the CDC issued a two-month order banning evictions in areas “experiencing substantial or high levels of community transmission of SARS-CoV-2.” The CDC relied on §361(a) of the Public Health Service Act for authority to extend the eviction moratorium. This provision essentially allows the CDC to take action as necessary (such as fumigation, disinfection, sanitation, etc.) to prevent the transmission of communicable diseases.
Fortunately for landlords and property owners, the Supreme Court wasn’t convinced that the CDC’s authority was justified. In an unsigned decision, the Court found that halting evictions was markedly different from the direct targeting of diseases (i.e. fumigation) identified in the statute. The majority opinion stated that allowing the CDC to extend its authority to whatever it deems “necessary” would effectively give the CDC limitless authority. Further, it concluded that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” This is precisely what FMG predicted in its blog when the eviction moratorium was first announced in the Fall of 2020.
This decision has a momentous and immediate impact on tenants and landlords alike across the country. The Supreme Court estimates between 6 and 17 million tenants are at risk of eviction as a result of pandemic-related shutdowns. Simultaneously, many landlords are experiencing financial hardship as a result of the eviction moratorium and their inability to collect rent.
For now, the Supreme Court’s decision is a “win” for landlords who see the decision as an opportunity to take back control of their property. Only time will tell whether Congress will exercise its authority to extend the eviction moratorium in light of the Supreme Court’s decision.2 If you have any questions regarding the impact of this decision on your business, please contact your FMG attorney.