Understanding the New Eviction Moratorium

The U.S. Centers for Disease Control and Prevention and Biden White House announced earlier this week that there is now a nearly nationwide eviction moratorium in place until October 3.

The announcement was an abrupt reversal after President Biden and officials said they lacked the legal authority to further extend the previous eviction moratorium, which expired on July 30. So what happened, and what can struggling renters expect to happen?

Moratorium Is a 'New' Order, Not an Extension

The order issued on August 2 by the CDC applies to U.S. counties experiencing "substantial and high levels of community transmission" of the coronavirus.

So instead of a nationwide moratorium, there is now a moratorium in place that covers nearly 90% of the country's population because of the fast rise in cases fueled by the COVID-19 delta variant. CDC Director Rochelle Walensky said the new moratorium "was the right thing to do" to prevent more people from becoming homeless and congregate in shelters, where the coronavirus can easily spread.

Just like the previous eviction moratorium, this new order covers all renters who:

• Make less than $99,000 as an individual or $198,000 as a couple in 2020 or 2021
• Make a good faith effort to obtain government-provided rental assistance
• Suffer economic hardship(s) (such as job loss, loss of hours, or high medical expenses) that makes it hard to pay rent on time
• Make a good-faith effort to pay as much of their rent as possible

To qualify, you must still present the CDC's declaration form to your landlord proactively. Your landlord does not have to offer this protection to you voluntarily.

Why Is There a New Order?

The reason the announcement was so shocking was because just one day earlier, the CDC said it lacked the legal authority to extend the previous eviction moratorium.

That's because in late June, the U.S. Supreme Court voted 5-4 in an emergency order to leave the previous eviction moratorium in place. However, Associate Justice Brett Kavanaugh, part of the majority in that ruling, wrote that he felt another extension would require Congressional approval.

Kavanaugh's statement was a pretty clear indication of how the court would rule on any future challenges to a moratorium extension.

Will New Order Survive a Challenge?

Not long after the announcement of the new moratorium, a group of real estate and landlord groups filed a legal challenge in U.S. District Court for the District of Columbia.

In announcing a new order based on new conditions rather than a blanket, nationwide moratorium, the White House and CDC were likely trying to find a clever solution to survive a court challenge.

However, President Biden himself may have said too much at a press conference this week, when he said — hours before the new moratorium was announced — that he didn't know if a moratorium enacted without Congressional approval would survive a court challenge.

"Whether that option will pass Constitutional measure ... I can't tell you. I don't know," Biden said.

In its challenge of the moratorium, the realtors and landlords said that "the CDC knew that the White House had repeatedly stated that new legislation was necessary to extend the moratorium ... Congress tried, but failed, to enact a legislative extension ... Yet rather than accept that as the final word under our constitutional system (which the White House initially appeared to do), the CDC extended the moratorium anyway."

What Should You Do?

If you are a renter struggling to keep up with your rent, you should take advantage of this new order while you can. However, you should also be doing everything you can to access rental assistance authorized by Congress earlier this year as part of pandemic-related relief legislation.

Related Resources:

• Find a Landlord-Tenant Attorney Near You (FindLaw's Lawyer Directory)
• Answers to Your Legal Questions About COVID-19 (FindLaw's Learn About the Law)
• Defenses to Eviction (FindLaw's Learn About the Law)
• Eviction Moratorium Extended Through June 30 (FindLaw's Courtside)