The Noose Tightens Around the CDC Eviction Moratorium

There’s been a lot that has happened since my last update, so let’s get right to it.

BURYING THE CARES ACT

First, I wanted to give a quick reminder that starting on April 1 the Kentucky Supreme Court is allowing evictions to proceed without regard to the CARES Act. That means two things:

1. You no longer need to file a Verification of Compliance form with your eviction; and

2. You may resume giving your usual notice to pay or vacate. For those of you in URLTA areas, you’d give a seven-day notice to pay or vacate unless your lease requires a longer notice. If you’re not in a URLTA area, you give whatever notice your lease requires. If your lease doesn’t state how much notice to give, the local court may still require 30 days’ notice.

THE CDC EXTENDS ITS EVICTION MORATORIUM

To no one’s surprise, the CDC extended its eviction moratorium through June 30, 2021. But . . .

THE NOOSE TIGHTENS AROUND THE CDC EVICTION MORATORIUM

In my last update, I noted that a federal district court in Eastern Texas ruled that the CDC had no constitutional authority for the moratorium. You can now add the federal courts of the northern district of Ohio and the western district of Tennessee to that list. Both found that the CDC exceeded its constitutional authority in enacting an eviction ban – which is totally intuitive; it makes no sense that an agency dealing with public health would have the legal authority to meddle in private housing relationships. Click here to the read the court’s opinion in the Ohio case and here for the Tennessee case. There are interesting implications from each case.

The Ohio Case

In the Ohio case, one of the parties bringing the case was the National Association of Home Builders (NAHB). The brought the case as a representative of their members. As a result, the court’s ruling sets aside the CDC moratorium for all NAHB members. If you’re an NAHB member, you should present this fact to your local court during any eviction in which the tenant attempts to claim protection under the CDC moratorium. 

The Tennessee Case

After the trial court ruled for the landlords in the Tennessee case, the federal government asked the Sixth Circuit Court of Appeals to stay the judgment until it could be appealed. In response, the Sixth Circuit denied the government’s motion because it did not believe the government could prevail on appeal. In short, the Sixth Circuit revealed that it will not overturn the lower court’s ruling that the CDC moratorium is unconstitutional.

What does that mean for us? Since the Sixth Circuit Court of Appeals covers Kentucky, it means that any landlord that seeks to invalidate the CDC moratorium in federal court in Kentucky and wins would likely have their win upheld by the Sixth Circuit. Now we just need someone to bring the case.

SB 11 – CRIMINAL DAMAGE TO RENTAL PROPERTY

I mentioned this back in this update earlier this year. The bill easily passed both legislative house. Unfortunately, the Governor vetoed it. He did so because “purposely targets tenants during a pandemic” despite their need to “be healthy at home”. Respectfully, that makes no sense. The bill only targets tenants who “intentionally or wantonly” damages rental property. Such tenants should be targeted. It’s shocking that the Governor would not agree. You can read the Governor's veto message here.  

Fortunately, both houses of the state legislature voted to override the Governor’s veto, which means that SB 11 will become law later this year.

That’s it for today. I hope the spring has started on a good note. You can reach me at (859) 685-0035 or at smarshall@tripleslaw.com if you have questions or need help with anything.