CDC Eviction Moratorium Held Unconstitutional by US District Court, Eastern District of Texas
By Jason S. Buckley, Garfield & Hecht, P.C.
COVID-19 has led to many regulations that impact a landlord’s ability to evict a tenant for non-payment or late payment of rent. Both landlords and tenants should be aware of how federal regulations affect their rights, especially in light of ongoing litigation throughout the country.
On September 4, 2020, the federal Centers for Disease Control and Prevention (“CDC”) issued an Order that restricts evictions for nonpayment of rent. Under the CDC’s order, a landlord cannot evict a person from a residential property if certain circumstances apply. To qualify for this eviction protection, a tenant must provide the landlord or court with a declaration, made under penalty of perjury, that confirms the following statements: (i) the tenant has used best efforts to obtain all available government rental or housing assistance; (ii) the tenant does not exceed certain income thresholds or received a CARES Act stimulus check; (iii) the tenant cannot pay full rent due to a substantial loss of income or extraordinary medical expenses; (iv) the tenant is using best efforts to make timely partial payments; and (v) an eviction would leave the tenant homeless or force the tenant to move into a shared living setting. These regulations were originally scheduled to terminate on December 31, 2020. However, the CDC has extended the regulations, and they are currently scheduled to terminate on April 1, 2021.
Notwithstanding the CDC’s interest in continued enforcement of an eviction moratorium, a recent federal court ruling has raised significant questions about the continued applicability of the CDC’s order. In Terkel v. Centers for Disease Control and Prevention, et al., several landlord plaintiffs sued the CDC and other federal defendants in the United States District Court for the Eastern District of Texas and challenged the CDC’s ability to issue and enforce the nationwide eviction moratorium and CDC order. The landlords argued that the CDC order exceeded the government’s constitutional authority. The CDC argued that it had authority to issue the eviction order under Commerce Clause (Article I, Section 8) of the U.S. Constitution. After reviewing the record, the Court noted that “the federal government has never before invoked its commerce power to impose a nationwide eviction moratorium.” The Court the struck down the eviction moratorium and held that the CDC exceeded its constitutional authority.
Due to the quickly changing nature of eviction regulations during COVID-19, landlords and tenants need to keep apprised of their current rights and responsibilities. Landlords should ensure that they comply with all regulations before initiating the eviction process. Tenants, on the other hand, should be aware of their rights.
Garfield & Hecht, P.C., attorneys represent landlords and tenants in drafting and negotiating leases and in eviction proceedings. Our attorneys are dutifully tracking legislation that affects landlord/tenant relations. For more information, contact one of the following attorneys:
- Aspen: Ronald Garfield (, 970-925-1935, ext. 200); or Christopher D. Bryan (, 970-925-1936, ext. 802)
- Glenwood Springs: David H. McConaughy (, 970-925-1936, ext. 810)
- Avon: Kursten Canada (, 970-925-1936, ext. 853)
- Denver Tech Center: Jason S. Buckley (, 720-961-9057