Real-Estate

It’s Not Over: New Eviction Moratorium Faces Legal Challenges

The Biden administration’s latest eviction moratorium buys some time to protect the millions of Americans who could face eviction and homelessness for failure to make rent or housing payments, but the order’s legality faces doubts. 

An estimated 11.4 million adults living in rental housing are behind on rent, according to an analysis of Census data collected from June 23 to July 5 by the Center on Budget and Policy Priorities. The study found one in five renters with children are behind, and renters of color face the greatest hardship.

On August 3, the Centers for Disease Control and Prevention issued a new eviction moratorium that will expire on October 3, as the Biden administration sought to overcome criticism that it was allowing vulnerable renters to lose their homes during a pandemic. However, the legal issue is whether the CDC has the authority in the midst of a public health crisis to curb evictions under existing federal law that dates to 1944.

Nicholas Bagley, a University of Michigan law professor, said he expects landlords “all over the country to turn immediately to the courts in an effort to secure a preliminary injunction,” an order that would effectively allow evictions to resume, according to The Associated Press.

On August 4, the Alabama and Georgia associations of Realtors filed an emergency motion with Judge Dabney Friedrich of the U.S. District Court for the District of Columbia, asking her to enforce the Supreme Court’s recent order that the CDC could not extend the moratorium without new legislation. 

The state associations, with the National Association of Realtors’ help, brought a lawsuit in the fall of 2020 challenging the CDC’s authority to impose a blanket ban on evictions. Friedrich ruled with housing providers but put her ruling on hold pending an ongoing appeal, which kept the moratorium in place.  

Housing providers then asked the D.C. Circuit Court to lift the stay, and after being denied that request, petitioned the Supreme Court to intervene and end the ban immediately. On June 29, a majority of the Supreme Court indicated the CDC lacked authority to implement a national eviction moratorium. The high court allowed the ban to expire at the end of July but stated that any further extension would need Congressional authorization. 

The CDC’s new order temporarily halts evictions in counties with heightened levels of community transmission in order to respond to recent, unexpected developments in the trajectory of the Covid-19 pandemic, including the rise of the Delta variant. It is intended to target specific areas of the country where cases are rapidly increasing, which likely would be exacerbated by mass evictions.

While the new guidance does not rescind the moratorium on most evictions for nonpayment of rent, it states that landlords may challenge tenant declarations and initiate eviction proceedings at any time, according to the National Housing Law Project.

NHLP’s legal analysis has determined the guidance undermines the intent of the CDC’s order by eroding protections for renters and making it more difficult for struggling renters to remain stably housed.

The CDC argues the coronavirus presents a historic threat to public health and that eviction moratoriums can be an effective public health measure to prevent the spread of coronavirus.

Housing stability helps protect public health because homelessness increases the likelihood of individuals moving into congregate settings such as homeless shelters, which then puts individuals at higher risk of Covid-19.

However, Bob Pinnegar, president and CEO of the National Apartment Association, said landlords are already paying the price. He calls the CDC eviction order “a bad policy that doesn’t address the mounting $26 billion in unfunded rent debt that renters and rental housing providers will shoulder for years to come.”

Pinnegar added, “Guided by continually shifting metrics, the order’s application will be a mess and undermine critical rental housing infrastructure. And what continues to be ignored is the catastrophic impacts of these orders on the entire rental market, including rent prices in the long term. The administration and Congress should instead be focused on making millions of hardworking Americans and small businesses whole again.”

In contrast, Adrianne Todman, deputy secretary of the U.S. Department of Housing and Urban Development, said: “HUD applauds the CDC’s action and reiterates its pledge to do all we can to prevent evictions of those who were most impacted by the pandemic—many of whom are families with low incomes and people of color.”

She added: “HUD is doing our part to raise awareness about the availability of financial assistance to assist with past due and current rent costs and using every tool at our disposal to prevent evictions broadly.”

“Our department calls on landlords and owners who do business with HUD to access the Emergency Rental Assistance Program and do everything they can to keep families housed during this historically difficult time,” said Todman. “The  Emergency Rental Assistance Program is available in every state and will help landlords and owners receive past due rent and allow tenants to remain in their homes.”

The National Fair Housing Alliance (NFHA) and a broad coalition of advocates worked around the clock to put protections in place to help stave off the pending housing crisis. 

Lisa Rice, NFHA’s president and CEO, said: “While the organization is pleased that the White House announced a limited moratorium on evictions in counties with high rates of Covid-19 transmission, covering about 90% of renters through October 3, 2021, we cannot lose sight of the fact that too many people remain in jeopardy.”

“Our work is far from over, and no family should be forced out of their home,” added Rice. “As the Delta variant continues to endanger tens of millions of renters and homeowners, we are reminded that there are currently 6.5 million households across the country that are behind on rent, and although Congress recently allocated $46.6 billion in rental assistance, only a fraction of those funds have reached the families who need it.”

In the coming weeks, NFHA noted that it is committed to working with advocates, federal partners and the White House to push for additional protections that: 

●        Extend the CDC’s federal moratorium on evictions until December 31, 2021. 

●        Require the departments of Agriculture, Treasury, Veterans Affairs and the Federal Housing Administration to extend the moratorium on evictions for properties owned or assisted by these agencies to December 31, 2021, as well as encourage the Federal Housing Finance Agency to take similar action regarding foreclosed properties owned by Fannie Mae, Freddie Mac, and other federally backed properties.

●        Remove barriers in the Treasury Department’s Emergency Rental Assistance Program (ERA) by creating a safe harbor provision for ERA programs that reasonably interpret federal guidance.

●        Provide direct assistance to states who are experiencing challenges standing up their ERA programs.

●        Require federal agencies to instruct servicers of their single-family loans to follow the Consumer Financial Protection Bureau’s RESPA 2021 Mortgage Servicing COVID-19 Rule immediately, prohibiting servicers from making a first notice or filing for foreclosure on most loans until December 31, 2021.

Lawrence Yun, chief economist for the National Association of Realtors, notes that with continuous job gains occurring with each passing month, the number of people able to make rent payments should be rising.

“But for those who are unable, rental assistance is plentiful but not being fully utilized,” said Yun. “Aside from the constitutionality of private property rights, the right to evict will force those renters to seek out rental subsidies. Rents in the meantime may rise because of the jobs recovery.”

“Rent growth had decelerated during the pandemic, down from 4% to 2%,” he said. “However, with apartment vacancy rates falling, rent growth is likely to go back up to 4% if not more. More supply is required to make rent growth manageable. In the long run, extending the eviction moratorium will lead to an even greater housing shortage and to rents rising faster for those paying the rent.”

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