The Supreme Court Ends the CDC Eviction Moratorium

Posted by Stephen Marshall on

THE US SUPREME COURT STRIKES DOWN THE CDC EVICTION MORATORIUM 

In late July, I told you that the CDC eviction moratorium was set to expire on July 31 unless Congress renewed it. And it did expire. For three days. On August 3, the CDC issued a new moratorium that they claimed was “targeted” and “limited”, even though it still applied to 90% of tenants. But yesterday, almost one year after the CDC instituted its eviction moratorium, the United States Supreme Court, the highest court in the land, effectively struck it down. To read the Supreme Court’s opinion, click here

THE BACKGROUND 

The case that led to the ruling by the Supreme Court began in federal district court in Washington, D.C. On May 5, the trial court ruled that a group of landlords and realtor associations out of Alabama and Georgia had proved their case that the CDC did not have authority from Congress to issue its eviction moratorium. However, the trial court entered a stay of enforcement of its ruling until the matter could be appealed to a higher court, which means that it refused to enter an order stopping enforcement of the moratorium. The federal appeals court refused to lift the stay. 

In early July, the Supreme Court also refused to lift the stay in a 5-4 decision. However, Justice Kavanaugh noted that he did not believe the CDC had legal authority for the moratorium but refused to lift the stay because the moratorium was set to expire on July 31 and the CDC had indicated it would not be renewed. 

That led to my post in late July about the expiration of the moratorium. However, when the CDC issued a new moratorium without Congressional authorization, those landlords from Alabama and Georgia renewed their case in the trial court, again asking for the stay to be lifted so that the trial court’s order stopping the moratorium would be enforced. The trial court refused, this time citing the rulings by the appeals courts above them. The federal appeal court refused to do so as well on the same grounds. That set the stage for the case to be reviewed by the Supreme Court. 

And yesterday the Court issued an opinion that was basically a 6-3 ruling that the CDC did not have legal authority to issue the moratorium and that the stay of the trial court’s order was lifted and could now be enforced to end the moratorium.

I’ve often said to myself that I’d probably drink a bourbon during the video where I announced the end of the moratorium. But this is hardly a celebratory time with so many landlords waiting on thousands of dollars in rental payments. But this is a step towards getting back to normal. And for that I am grateful. 

WHAT HAS CHANGED 

  1. There is no legal reason that you cannot evict tenants for any reason, including non-payment of rent. You may give notices, file evictions, get judgments, and perform set-outs.
  2. You no longer need to include language in your notices that I discussed in this post notifying tenants of potential protection from eviction. 

WHAT HAS NOT CHANGED

  1. Millions of dollars in rental assistance are still available. Earlier this week the Treasury Department amended their regulations to try to make the application process easier and faster. Let’s hope that happens.
  2. The Kentucky Supreme Court rule requiring a two-week continuance in non-payment of rent evictions is still in place. So, on your first court appearance in cases that only involve non-payment of rent, the case must be continued for at least two weeks if the tenant shows up to court.
  3. The amount of notice required has not changed. You may continue to give the same notices to pay or vacate. 

WHERE DOES THAT LEAVE YOU

It leaves you with a decision to make when you file an eviction based on failure to pay rent. You now have the option to get a judgment of eviction and remove the tenant from the property (though it might not be until the second court appearance). However, you may still choose to let the tenant stay on the condition that they participate in the process to get rental assistance to pay the debt. That’s your call, and one you’ll need to think about for each court appearance. 

So, we have good news to report. There’s no guarantee that Congress will not enact a moratorium on evictions, but we’ll cross that bridge when and if we come to it. 

That’s it for today. Enjoy your weekend. And if that includes a nice pour of bourbon, all the better. I’m at smarshall@tripleslaw.com if you need me.


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