From March 19, 2020 until its expiration in August there was Executive Order 20-06 prohibiting the initiation of residential eviction actions in Indiana. On March 27, 2020 I posted the featured article “The Governor’s Emergency Powers” with the view that Governor Holcomb was exceeding his authority with the torrent of “Emergency” Executive Orders. To its credit the State of Indiana offered some landlord assistance during its eviction moratorium. While there must be Hoosier landlords who lost money due to the Governor’s Order, those losses are not the topic of this article. Rather, the topic of this article is the Federal eviction moratorium (as declared by the CDC) effective September 4, 2020 and in effect at least through June 30, 2021 and possibly longer.
The CDC eviction moratorium began not with an administrative regulation but rather with an “Agency Order” published in the Federal Register Vol. 85 No. 173 page 53292 et seq. on that effective date of September 4, 2020. The original expiration date of December 31, 2020 has been extended through June 30, 2021 and may very well be extended again. To deter an eviction a deadbeat tenant need only serve a verified declaration claiming an inability to pay rent due to the COVID-19 pandemic. Then to accomplish the eviction the landlord must find grounds for eviction other than the nonpayment of rent. The CLB holds that lease expiration is among such grounds, some of which are listed in the cited Federal Register entry at page 55294.
Eviction from residential property is primarily a state concern. Federal fair housing legislation, though generally laudable, always seemed to me to exceed legitimate federal concerns where, for instance, a family has a cottage apartment for rent in the same yard where the children play. I could never see the interstate commerce connection in such circumstances.
Assuming federal constitutional authority over all residential tenancies, what is the statute for the moratorium? The CDC claims statutory authorization under the 1944 Public Health Service Act, as amended and as codified at 42 U.S.C. § 201 et seq. A statutory power of quarantine can be found at 42 U.S.C. § 264. The CLB is unaware of any statutory provision authorizing a federal agency to declare a general eviction moratorium for residential housing.
And what if there were such statutory authority hidden in some corner of the U.S.C.? It wouldn’t make much difference to the next big class action of landlords versus the United States. That is because a broad moratorium on residential evictions still amounts to a taking without compensation. The landlord whose units are occupied by deadbeat tenants who cannot be evicted suffers a taking of his property. For the constitutional connection to my point, here is the ultimate clause of that series of prohibitions otherwise known as the Fifth Amendment:
“. . . nor shall private property be taken for public use without just compensation.”
The class action won’t be filed by a sole practitioner (like your CLB Blogger) but rather by a large law firm with the resources to prosecute a large class action with (at least) a few billion dollars at stake. Still, sole practitioners of the law may participate by helping landlord clients “opt in” to the class action and by filing and monitoring their claims. Landlords who anticipate the predicted class action should keep detailed records of their moratorium losses.
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