Is the CDC Eviction Moratorium Unconstitutional?

Last Thursday, a federal judge ruled that the Center for Disease Control’s (CDC’s) moratorium on evictions is unconstitutional. The judge, John Barker, declined to issue an injunction against the CDC’s rule, but said that he expects that the CDC will respect his decision and withdraw the moratorium.

So far, the CDC has not issued a statement.

One caveat: Even if the CDC order is revoked, many states have similar bans on evictions in place.

The CDC first issued their order, titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” on September 1, 2020. The CDC’s reasoning for this order was to limit the number of evicted persons crowding in homeless shelters or moving in with friends and relatives, which could worsen the pandemic.

The rule prevents landlords from evicting tenants who meet the following criteria:

  • Earn less than $99,000 per year, for individuals, or $198,000 for joint filing
  • Have received a stimulus check or reported no income to the IRS in 2019
  • Have used their best efforts to obtain government assistance for housing
  • Cannot pay full rent due to loss of income
  • Are attempting to make at least partial rent payments
  • Would be homeless if evicted.

Tenants who meet these criteria are required to sign a declaration, under penalty of perjury, that they meet these criteria.

The order was originally meant to expire at the end of 2020 but was extended until the end of March 2021.

The plaintiffs in the case—Texas Public Policy Foundation and Southeastern Legal Foundation—argued in their lawsuit that the federal government lacks the authority to impose an eviction ban.

Judge Barker agreed, stating “The federal government cannot say that it has ever before invoked its power over interstate commerce to impose a residential eviction moratorium. It did not do so during the deadly Spanish Flu pandemic. Nor did it invoke such a power during the exigencies of the Great Depression. The federal government has not claimed such a power at any point during our Nation’s history until last year.”

Until the CDC or other parts of the federal government respond to Judge Barker’s order, property owners and tenants are left guessing what will happen next.

Article written by Dave Meyer

Original Article: https://www.biggerpockets.com/blog/eviction-moratorium-unconstitutional?utm_source=Iterable&utm_medium=email&utm_campaign=Newsletter%20%7C%2003/04/21

Collecting Rent Amid a Pandemic

As the Coronavirus continues to create chaos for all of us, landlords are doing their part to work with their tenants while both struggle with economic hardship and financial uncertainty. During these times we need to continue communicating with one another to find reasonable solutions while understanding that the health, safety and the welfare of the general public are the priority.

Due to COVID-19’s wide-ranging effects, a landlord may get different types of information provided by tenants requesting rent deferment (some due to job loss, some for health reasons, some both). Thus, it is important to develop uniform guidelines in terms of the type of payment arrangements you want to offer to avoid potential fair housing issues.

It begins with being empathetic and tactful. Listening also goes a long way as people are worried, stressed and a lot of times, just want to have their voices heard.

On the bright side, many states may soon be lifting their Stay at Home Orders and so asking a tenant when they anticipate going back to work is a perfectly appropriate question. While continuing to be polite, a discussion as to whether an individual is receiving additional unemployment benefits is also suitable. After all, the purpose of these added benefits was to help pay for vital necessities such as food and rent.

It is important to maintain good records, especially making a log of the attempts to contact a tenant. Just be mindful to make sure to adhere to state social distancing and other guidelines regarding making contact with others.

It is also extremely important that you understand if your properties are affected by any State Emergency Orders or the Federal CARES Act. The latter imposes a temporary moratorium on evictions through July 25, 2020 for any housing receiving federal funds (such as subsidized housing) and for any housing with an underlying mortgage that is federally backed.

The Coronavirus is taking its toll on everyone. For landlords and tenants, communication is key. It should always be done in a respectful manner, but don’t be hesitant to ask questions to gauge an individual’s ability to make payments. Enter into agreements verses verbal arrangements when applicable and make sure you are ready for when the courts re-open to enforce your rights and protect your interests.

If you need assistance or would like to get help from a property management company, Rental Management One is on standby for your call.