March 30, 2021
Best Ever CRE Team

6th Circuit Court of Appeals Strikes Down Eviction Moratorium

On March 29, 2021, the United States 6th Circuit Court of Appeals denied HUD’s efforts to unilaterally extend the moratorium on evictions. But what does this mean? In short, the 6th Circuit Court of Appeals (covering Tennessee, Kentucky, Ohio, and Michigan) ruled that the Center for Disease Control (CDC) could not lawfully extend the moratorium based on the “generic rulemaking power arising from the Public Health Service Act.” In September of 2020, a group of landlords in Memphis, Tennessee sought relief from the United States District Court for the Western District of Tennessee. In doing so, they sought to have the Halt Order (for evictions) declared to have exceeded the authority granted to an administrative agency. Judge Norris ruled that the Halt Order exceeded the authority granted to it and the government appealed and sought a stay of that order. A “stay” is a procedural mechanism whereby the Court can hold an order or its effects from taking place. However, a court must determine if the stay meets the four factors the law requires of it to be used to halt an order and its effects. In this case, the higher court did not find that the stay should be granted because the Government was not likely to be successful on the merits of its case. They did so based on statutory construction of the statutes that the CDC sought to extend the moratorium.

What does this mean for the rest of us?

Great. What does this mean for the rest of us? This means that under the current statutes being used as the basis for extending these moratoriums, the CDC has overstepped its authority. This does not mean that Congress cannot pass a bill to give the CDC that authority. This is easily boiled down to a check on government overreach. It is also of note to mention that the moratorium that was being challenged ends on March 31, 2021. This is a small victory for landlords but it is not a tidal change in the current legal system that has left so many investors and landlords with tied hands. The coming weeks will be worth watching Congress as this issue is lobbied on Capitol Hill. Author: Brian T. Boyd, JD, LLM,

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