On September 4, 2020, the Center for Disease Control (CDC) Director Michelle P. Walensky, M.D. M.P.H. issued an order temporary halting evictions in the United States in an effort to mitigate the effect of COVID 19 and its spread. The order was set to expired December 31, 2020 subject to extension, modification, or rescission. On January 29,2021. The CDC Director made decision to extend the order to March 31, 2021 and now further to June 30, 2021. The CDC cites multiple data points reflecting that if evictions proceed, there will be increased homelessness and expansion of the severe risk of disease. As all are aware, there has a strong direction to stay home to avoid the risk of COVID 19 and all variants.
CDC Qualifications for Hardship include Income and Hardship as follows:
Income – In 2020 or 2021, I earned (or expect to earn) less than $99,000 as an individual or less than $198,000 as a joint tax return filer. Or not required to report any income to the IRS in 2020.
Hardship – substantial household income reduction. Laid off from work. Hours or wages cut. Extraordinary out of pocket medical expenses (greater than 7.4% of adjusted gross income.
There are exceptions to the Order – if a tenant is engaging in criminal activity, endangering the lives of other tenants, damaging the property, violations of building or health code, or breaking other contractual agreements. To be clear, those diagnosed with COVID 19, or exposed to COVID, and taking reasonable precautions to avoid the spread cannot be evicted.
Those in violation of this Order, may be fined no more than $100,000 or jailed for a year, or both if the violation does not result in death, and more if it does. The Department of Justice is given the authority to initiate criminal proceeding.
Federal judges in Texas and Ohio declared unenforceable a September 2020 order issued by the Centers for Disease Control that prohibits certain residential evictions because of COVID-19 through March 2021. The U.S. District Court for the Eastern District of Texas found that while there may have been a public health benefit, the residential eviction moratorium was not economic in nature, was too attenuated from interstate commerce and was an unprecedented exercise of federal government authority in an area well within the scope of the states’ traditional police power. The U.S. District Court for the Northern District of Ohio found that the CDC’s order exceeded the agency’s statutory authority to make and enforce regulations to stop the spread of communicable diseases between states because that authority was limited to actions to address infected animals, objects or properties. Terkel v. Centers for Disease Control and Prevention, No. 6:20-cv-00564 (E.D. Tex. Feb. 25, 2021) and Skyworks, Ltd. v. Centers for Disease Control and Prevention, No. 5:20-cv-2407 (N.D. Ohio Mar. 10, 2021).
Likewise, five landlords filed suit in the U.S. District Court for the Eastern District of New York on February 24, 2021, requesting that the court bar enforcement of Part A of the New York COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. The state law, in part, provides a stay based upon an application of hardship that could extend eviction cases until at least May 1, 2021. Chrysafis, et al. v. James, Case No. 2:21-cv-00998. However, on April 14, 2021, the Attorney General’s Motion to dismiss was granted, case dismissed for lack of subject matter jurisdiction, and plaintiff’s preliminary injunction denied. The Attorney General was found not to be a proper party to the action (they were not the entity to enforce the NY Eviction moratorium.)
On March 4, 2021, an organization purporting to represent the interests of more than 4,200 building owners, managers and landlords in Pittsburg and other surrounding locales, filed suit in the Court of Common Pleas for Allegheny County, Pennsylvania, challenging the validity of a recently passed municipal moratorium on evictions during the pandemic. The plaintiff argues that the ordinance forces landlords to stay in or renew contracts in violation of the state constitution and the U.S. Constitution, and that the ordinance is an improper extension of the federal moratorium from the CDC. The plaintiff seeks a declaration that the ordinance is illegal and unconstitutional, and an injunction barring its enforcement or implementation.
State by State, we can expect continued litigation testing the authority of the CDC to issue a moratorium on eviction. Moratorium after moratorium gets extended by the Government, so, there is not yet an end in sight at this time. Even if a landlord organization is successful against the CDC, they must work through their State’s Eviction moratoriums. We continue to monitor the litigation and trends.
For more information on this decision please contact Director of Operations, Deborah Gallo, Esq. at firstname.lastname@example.org.