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CDC issues new Eviction Moratorium, legal battle looms

In response to the COVID-19 Pandemic, the Center for Disease Control (“CDC”) ordered a new moratorium on residential evictions through October 3, 2021. This contradicts previous statements by the CDC that their previous moratorium, which was set to expire on July 31, 2021, would be their final one.

What is different about this new Moratorium?

Instead of a blanket moratorium on evictions, the new Moratorium only applies in counties with “substantial” or “high” rates of COVID-19 transmission. “Substantial” and “high” are defined within the order pursuant to a numerical formula. Approximately 80 percent of counties in the United States fall into these categories. While this order would appear to be more landlord-friendly, it will only lead to more confusion for when an eviction can proceed. For example, if a county falls below the required rate for 14-days the moratorium would be lifted, but if the rate goes back up to levels dictated by the CDC, the Moratorium will go back in place. This would likely result in eviction proceedings being initiated then stayed and vice-versa, depending on the rates of COVID-19 transmission in that county.  

How will the Courts react to the new Moratorium?

While the new moratorium is still in its infancy, the Courts will likely see the same legal challenges brought by Landlords across the country. One important issue that Courts across the country will have to consider is how the United States Supreme Court ruled on the previous moratorium.

In Alabama Assn. of Realtors v United States Dept of Health and Human Services, an assortment of property owners and realtor trade associations filed suit against the CDC challenging the moratorium. In a 5-4 decision, the U.S. Supreme Court left the previous moratorium in place. Chief Justice Roberts along with Justices Breyer, Kagan, Sotomayor, and Kavanaugh voted to deny lifting the previous moratorium. However, in a separate concurrence, Justice Kavanaugh wrote that while the lower court was correct that the CDC had exceeded its existing statutory authority, the Court should not lift the eviction moratorium given the pending expiration of the moratorium on July 31, 2021. He went on to write that any further extension of the eviction moratorium would require, “clear and specific congressional authorization.” Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application to vacate the stay and have the order invalidated nationwide immediately.

As this new Moratorium was done without congressional authorization, Courts will have to wrangle with how much of an influence Justice Kavanaugh’s concurrence should have in their decision-making. It will only be a matter of time before this new Moratorium is before the Supreme Court. Justice Kavanaugh, who represented the swing vote in the prior decision will likely not be as lenient towards the CDC. 

What is the current state of Evictions in New York?

While the CDC has extended their nationwide moratorium, the state legislature in New York has yet to extend their statewide moratorium. On May 4, 2021, Governor Cuomo extended the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020. This extension acts to prolong the moratorium on residential and commercial evictions until August 31, 2021 for tenants who have suffered a COVID-related hardship. It is unknown at this time if a further extension will be passed by the State. 

Have Questions About the Eviction Moratorium? 

Clair Gjertsen & Weathers PLLC continues to monitor this ever-changing landscape. For additional questions regarding the implications of these decisions and related landlord/tenant issues, we invite you to contact Clair Gjertsen & Weathers PLLC by calling 914-472-6202. We look forward to hearing from you.

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