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It’s the End of the Eviction Moratorium As We Know It (And I Feel Fine)

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On August 26, 2021, the Supreme Court issued an opinion granting the application of the Alabama Association of Realtors (et al.) to vacate the stay of judgment pending appeal, and thereby ending the eviction moratorium that the Centers for Disease Control (CDC) had imposed to try to reduce the spread of COVID-19. Alabama Ass’n of Realtors v. Dep’t of Health & Human Services, 21A23, 2021 WL 3783142, at *1 (U.S. Aug. 26, 2021). The eviction moratorium was originally passed as part of the CARES Act in March 2020, and since then has bounced between being authorized by the CDC and Congress, as various authorizations expired, came into being, and again expired. Most recently, on August 3, 2021, the CDC had issued the latest version of the moratorium, applying only to those parts of the country that were experiencing substantial or high levels of community transmission of COVID-19. Due to the rampant spread of the Delta variant, this covered most of the country.

The matter quickly returned to the Supreme Court, which wasted no time in vacating the stay and ending the moratorium. The Supreme Court found that CDC had exceeded the authority granted to it under §361(a) of the Public Health Service Act, and that the equities, including the financial harm to landlords (many of whom have modest means themselves), and infringement on the right to exclude, which the Court called “one of the most fundamental elements of property ownership,” did not “justify depriving the applicants of the District Court’s judgment in their favor.” Alabama Ass’n of Realtors at *4.

Numerous news organizations have reported that the end of the moratorium could result in large numbers of tenants being evicted. Some estimates suggest that as many as 750,000 households could be evicted by the end of this year. Katy O’Donnell, Evictions to Hit 750,000 Households, Goldman Says, Politico, August 30, 2021, at https://www.politico.com/news/2021/08/30/evictions-to-hit-750-000-households-goldman-says-507575. I would argue that the situation will ultimately not be quite so dire.

First, some states, such as California, still have their own eviction moratoriums in place. Adam Liptak and Glenn Thrush, Supreme Court Ends Biden’s Eviction Moratorium, N.Y. TIMES, Aug. 26, 2021, at https://www.nytimes.com/2021/08/26/us/eviction-moratorium-ends.html. The state of New York is expected to extend its recently expired state moratorium through January 15, 2022. Luis Ferré-Sadurní, N.Y. Legislature Expected to Extend Freeze on Evictions in Rare Special Session, N.Y. TIMES, updated Sept. 1, 2021 at https://www.nytimes.com/2021/08/31/nyregion/eviction-moratorium-ny-kathy-hochul.html.

Second, the eviction moratorium, was not as all-encompassing as many assumed. Nothing in the CDC’s moratorium prevented landlords from filing and obtaining evictions of tenants who were delinquent on their rent. The burden was on the tenants themselves to complete the CDC’s declaration form and provide it to their landlord and/or courts. But even that was not the end of the road: landlords (and we, their attorneys) could challenge those declarations in court. One need only look at the dockets of our own County Court to see that evictions have been moving forward even while the CDC moratorium was in place.

Third, if there is a sudden large influx of eviction filings (something that is not yet borne out by viewing the Alachua County Court dockets), it will create an equally large backlog, with the potential for equally large delays. While I have no doubt that our judges do their best to expeditiously hear every case that comes onto their dockets, there are only so many hours in a day. Having experienced the mortgage foreclosure backlogs in Southwest Florida that began in 2007 and 2008, for those tenants who choose to defend against the eviction, it is entirely possible that the process will not be as quick as it might normally have been.

And that, perhaps, may lead to the lesson here for us civil litigators and landlord-tenant law practitioners. If we are concerned that the Supreme Court’s decision will lead to hundreds of thousands of people being evicted, the best way we can help is to defend these eviction actions. As an attorney who has represented landlords in many eviction actions, I realize I may be making my own job harder by advocating for this, but it doesn’t change the truth of the matter. As attorneys, I believe we have both the duty and privilege to assist others. If the end of the moratorium is truly a concern, then we should take appropriate steps to help those in need.