QUESTION:     CAN I EVICT MY DELINQUENT RESIDENTIAL TENANT?

ANSWER:        THERE IS NO LONGER A FEDERAL MORATORIUM AGAINST EVICTIONS OF RESIDENTIAL TENANTS

What was Covered by the Nationwide Moratorium on Evictions of Residential Tenants?

“The Director of the Centers for Disease Control and Prevention (CDC). . . imposed a nationwide moratorium on evictions of any tenants who live in a county that is experiencing substantial or high levels of COVID-19 transmission and who made certain declarations of financial need.”  Alabama Association of Realtors et al. v. Department of Health and Human Services et al., 594 U.S. _______ (2021).

The CDC residential tenant eviction moratorium has been widely misunderstood.  We have been contacted by many parties asking whether commercial lease evictions are banned or asking whether residential mortgage foreclosures are banned.  In Arizona they are not. 

The Supreme Court noted:  “The moratorium has put. . . millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery.”  Many landlords “of modest means” have been unable to pay mortgages and taxes without the rental income and have lost their properties. 

What did the U.S. Supreme Court say About the Nationwide Moratorium on Residential Tenant Evictions?

The statute upon which the CDC relied, § 361(a) of the Public Health Service Act, did not grant the CDC the authority to issue a nationwide residential eviction moratorium.  Nor did the CDC have the authority to impose criminal penalties of up to $250,000 in fines and one year in jail upon landlords violating the moratorium. 

The provision of the Public Health Service Act upon which the CDC relied for authority is found at 42 U.S.C. § 264(a) and states:

The Surgeon General, with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the Surgeon General may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

The provision was enacted in 1944 and has “rarely been invoked” and has generally been used only to quarantine infected individuals and to prohibit “the import or sale of animals known to transmit disease.”  Never before was it invoked to justify a residential eviction moratorium. 

The case had twice previously come before the District Court which had decided the merits in favor of the realtors.  The District Court had decided that the Government was unlikely to succeed on the merits because the CDC was clearly acting beyond its authority.  The District Court also said that with the availability of vaccines and rental-assistance from the Government the harm to tenants and the public had decreased, “while the harm to landlords had continued to increase.”  But the D.C. Circuit Court of Appeals stayed the District Court’s decision on two occasions.  The Supreme Court decided there was no reason to stay the decision of the District Court that the eviction ban was illegal.

The Landlords Beat the CDC on the Merits of the Case.

“The applicants not only have a substantial likelihood of success on the merits—it is difficult to imagine them losing.”  The Supreme Court continued that the second sentence of the statute relied upon by the Government for its authority to issue the moratorium illustrates the measures that could be necessary to control the spread of disease such as “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of contaminated animals and articles.”  As the Court noted:  “These measures directly relate to preventing the interstate spread of disease by identifying, isolating, and destroying the disease itself.” 

The moratorium by the CDC, was much more indirectly related to interstate infection.  The reasoning was:

If evictions occur, some subset of tenants might move from one State to another, and some subset of that group might do so while infected with COVID‑19. [Citation omitted].  This downstream connection between eviction and the interstate spread of disease is markedly different from the direct targeting of disease that characterizes the measures identified in the statute.  Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that § 361(a) gives the CDC the authority to impose this eviction moratorium.

The Court noted that it expects Congress to speak clearly when authorizing a government agency to exercise powers of “vast economic and political significance.”  The Court noted that at least 80% of the country, and 6 to 17 million tenants were within the moratorium.  The Court also said that:  “The moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship.” 

Conclusion

The Supreme Court noted that the public has a strong interest in preventing the spread of the COVID‑19 Delta Variant.  “But our system does not permit agencies to act unlawfully even in pursuit of desirable ends.”  The Court concluded that if a federally imposed residential tenant eviction moratorium were to continue, it must be specifically authorized by Congress.  The stay was vacated and the judgments of the District Court overturning the residential tenant eviction moratorium became effective. 

If you have any questions regarding evictions or foreclosures, please do not hesitate to call me.

Mike signature

Michael R. King
Gammage & Burnham  Attorneys at Law
Mking@gblaw.com
602-256-4405

This article may be distributed with attribution but may not be excerpted or modified without the permission of the author.  Copyright ©2021