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The CDC’s Eviction Moratorium Threatens Landlords With $100,000 Fines, A Year In Jail For Noncompliance

The Trump administration has pushed forward an executive order issuing a new blanket eviction moratorium that applies to all rental properties nationwide. The order, published Tuesday, is a dramatic expansion of the now-expired eviction moratorium passed by Congress in March, and could potentially impose heavy criminal penalties on landlords for attempting to remove non-paying tenants from their properties.

According to the order advanced by the Center for Disease Control and Prevention (CDC) yesterday, tenants earning up to $99,000 ($198,000 for joint filers) cannot be evicted for not paying their rent provided they tell their landlord in writing that they’ve made all efforts to obtain government assistance, have lost income or received extraordinary out-of-pocket medical bills, and that their eviction would force them into homelessness or into a crowded living situation.

Landlords could still be able to evict tenants who engage in criminal activity on the property, or who pose a risk to public health or safety. Property owners who do move to evict a tenant in violation of the CDC’s order could be subject to fines of $100,000 and a year in jail.

The order went into effect this past Friday and is set to expire at the end of the year. It supersedes any less restrictive state or local limits on evictions but does not preclude jurisdictions from passing more sweeping moratoriums.

The CDC order goes far beyond the federal eviction moratorium passed as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March. That congressionally authorized policy only covered the 28 percent of multifamily residential units with a federally backed mortgage. It expired at the end of July.

Many housing advocates have long pushed for a universal eviction moratorium in response to the COVID-19 pandemic.

“A uniform, national moratorium on evictions for nonpayment of rent is long overdue and badly needed,” said Diane Yentel, president and CEO of the National Low-Income Housing Coalition in a statement, while cautioning that “this action delays but does not prevent evictions”

That’s because the CDC’s order does nothing to forgive tenants of the obligation to pay rent, it only delays the ultimate remedy landlords can seek for nonpayment until January. Once this emergency eviction moratorium expires, tenants would be on the hook for all that back rent.

Landlord groups have also expressed opposition to a federal eviction moratorium that comes without any additional rental assistance.  “Without direct rental assistance, rents cannot be paid, and owners face a financial crisis of their own by not being able to maintain properties and pay their mortgages or property taxes,” said Bob Pinnegar, president and CEO of the National Apartment Association, in a statement. “This action risks creating a cascade that will further harm the economy, amplify the housing affordability crisis, and destroy the rental housing industry.”

Legal Perils Created

The mission of the CDC, directly from their website reads:

CDC works 24/7 to protect America from health, safety and security threats, both foreign and in the U.S. Whether diseases start at home or abroad, are chronic or acute, curable or preventable, human error or deliberate attack, CDC fights disease and supports communities and citizens to do the same.

CDC increases the health security of our nation. As the nation’s health protection agency, CDC saves lives and protects people from health threats. To accomplish our mission, CDC conducts critical science and provides health information that protects our nation against expensive and dangerous health threats, and responds when these arise.

Clearly the CDC, a non-elected board of government employees, has now determined that evictions are a health risks.  Instead of fulfilling its own mission as defined, the CDC is resting the legal authority for its temporary eviction moratorium on a section of the Public Health Service Act and related federal regulations which give the agency’s director the power to take any measures he or she deems “reasonably necessary” to prevent the interstate spread of communicable disease, including “inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection.”

Therefore, if we are to believe that any measures includes items outside of the mission of healthcare, where does that slope end?  Is it within the power of the law to isolate people in a home?  Isolate them in a colony?  What about remove them from this country?  Can we execute someone if we deem them a health risk?  Is poverty a health risk that allows the confiscation of funds?  Is homelessness a health risk that we can violate the Constitution?

The The Fifth Amendment of the Constitution protects the right to private property in two ways. First, it states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. In addition, it sets limits on the traditional practice of eminent domain, such as when the government takes private property to build a public road. Under the Fifth Amendment, such takings must be for a “public use” and require “just compensation” at market value for the property seized. But in Kelo v. City of New London (2005), the Supreme Court interpreted public use broadly to include a “public purpose” of economic development that might directly benefit private parties. In response, many state legislatures passed laws limiting the scope of eminent domain for public use.

Further, under International Law – the  “American Declaration of the Rights and Duties of Man”. Ninth International Conference of American States,  Article 23 of the declaration states:

Every Person has the right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.

Therefore, when you deny one’s right to manage their own personal property are you not depriving them of their dignity to manage their own home?  When you mandate that you can not remove people form your home are you not depriving owners of due process?  The simple question is this:

Which rights matter more than other rights?

In the law that question is akin to: Which child do you love more?   The answer hopefully is that each child/right is equal in your eyes.  Just because the First Amendment is higher than the Tenth Amendment does not give it a higher authority.  All rights are equal and it is the role of the law and the Courts to balance those rights and the law.  When people, governments, businesses attempt to usurp and subjectively determine the priority of rights, one party will always fail to be protected.  All rights matter, because all rights work in unison to protect the freedom American’s have.  The right’s of renters matter and that is why eviction hearings occur and a property owner must go through the eviction process, however the right’s of the property owners also matter and that is why they must have access to the due process of that eviction process.

When no one thinks a legal process is perfect, that is when it is right.  The reason is because it is balancing sets of rights for two diametrically opposed parties resulting in a compromised solution.   Items such as the regulatory process, the eviction process, mediation’s, and the trial/appeal process.  All of these legal functions work to balance the rights of all Americans, should they be allowed to do as such.  When they are not it leads to foreseen and unforeseen issues as in this mandate scenario:

1. A backlog of evictions, which will render an influx of homeless individuals once the mandate is lifted;
2  A massive amount of mortgages not being paid, which will result in foreclosures;
3. Missed tax payments which will result in lack of government funds for other needs;
4. Lapsed insurance when the next natural disaster hits;
5. Lack of maintenance on a building which will led to the rundown of adequate housing;
6. An influx of people looking for rental space when evicted, and reluctant/unable landlords due to the mandate; and
7. Potential prolonged homelessness and/or bankruptcy for landlords leading to other noncollectable debts for other creditors.

Every action in the law creates three responses; an impact on another, a reaction, and a future implication.  In the common law, the cases build upon each other to create the current law.  The written law steers the vessel, but case law directs the ship.  When one usurps the rule of law to undermine due process it obstructs the fundamental role of the legal system.  Thus, the creation of the separation of powers, that many tend to forget about.   It is critical that we do not forget about the harmony created when we allow the system to work as it is created.   When people, businesses, and governments believe it to be their role to do more than what they are tasked with, it creates a reaction that ripples throughout the system.  Just like the team at Goldfinch Winslow, we all have our role and when we perform our function we create great results, however if an individual should not perform their assigned function or attempt to usurp another function, it can all fall apart.

If you should need a team to assist you in creating a great result for your legal need, please call us 843-357-9301 or visit our website WWW.GOLDFINCHWINSLOW.COM.  This new eviction moratorium will almost certainly attract legal challenges. A successful challenge will likely spur calls for a more permanent federal policy, however we must understand the reaction to this action.

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