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The New CDC Moratorium: A Little More of the Same

 

 

Last week, I wrote on the Eviction Moratorium issued by the Centers for Disease Control and Prevention (CDC) slated to expire on July 31, 2021. By all reports, the Biden administration was willing to let the moratorium expire due to the dubious legality of the order. Yesterday, however, the CDC decided to extend the eviction moratorium, or more accurately, issue a new, supposedly more limited, eviction moratorium. However, the new CDC moratorium does little to remedy the issues of the old one.

The new moratorium is different in that it will only apply to counties in the United States that are “experiencing substantial and high levels of community transmission levels of [COVID-19].”[1] Which counties fall into this threshold is “defined by [the] CDC, as of August 3, 2021.” If a county not covered by the Moratorium later qualifies, the Moratorium will apply to the county on the date that the county “begins experiencing” the substantial or high levels of community transmission.

The Moratorium is stated to be a “temporary eviction moratorium” to prevent the further spread and will not “relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease or similar contract.” The Moratorium also does not “preclude the charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.” This Moratorium will also not preclude evictions in circumstances, including criminal activity, violating building codes, and threatening the health and safety of other residents, among other things. This Moratorium is slated to expire on October 3, 2021.

The fact that the new moratorium will only apply to areas with “substantial and high levels of community transmission” will probably not moot the current cases challenging the moratorium being litigated across the country. The arguments in those cases focus on the statutory authority of the CDC to issue a moratorium at all, and the fact that a moratorium will only apply to select counties makes little difference. As I discussed in my previous article, the Supreme Court, in a 5-4 vote, was willing to let the previous moratorium stand. In his concurrence, Justice Kavanaugh called into question the legality of the moratorium, but allowed it to stand because it would expire on July 31, 2021, about one month after the Supreme Court issued its decision.

Were the CDC to allow the moratorium to expire on July 31, the current litigation challenging the moratorium would likely have been mooted. However, with this new moratorium, the litigation will likely continue, and with Justice Kavanaugh likely to join a 5-4 majority finding that the CDC does not have statutory authority to issue a moratorium, it is unlikely that the moratorium will survive a legal challenge before the Supreme Court. Further, with the Cincinnati-based United States Court of Appeals for the Sixth Circuit having determined that the moratorium was unlawful on the merits in Tiger Lily, LLC v. United States Department of Housing and Urban Development, those challenging the moratorium have precedent in their favor.

The CDC’s decision is likely pragmatic. It is probably aware that the moratorium will not survive a Supreme Court challenge. Nevertheless, since Supreme Court decisions take time, the moratorium may be able to stand while the Supreme Court makes its decision.

As for landlords attempting to navigate these uncertain waters, keep an eye out for press releases from the CDC specifying which counties are covered by the moratorium. Further, even if your county does not qualify, it is important to keep checking press releases, as unqualified counties can later qualify for the moratorium. The CDC’s integrated, county view of COVID-19 community transmission can be found here. For more information on the Eviction Moratorium and other COVID-19 business solution topics, contact Aaron Walayat at awalayat@tuckerlaw.com. You can also access Tucker Arensberg’s recent articles regarding pandemic business solutions at https://www.tuckerlaw.com/category/covid-19-answers-to-business-challenges


[1] The CDC defines “substantial and high levels of community transmission” is defined as “50.99-99.99 new cases in the county in the past 7 days divided by the population in the county multiplied by 100,000; and (2) 8.00-9.99% positive  nucleic acid amplification tests in the past 7 days.”

August 04, 2021

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