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Food and Housing Insecurity Measures

The CDC’s Eviction Moratorium Order Is Unprecedented: What Does It Mean for Tenants and Landlords?

September 10, 2020


Losing a home sends families to shelters, abandoned houses, and the street. It invites depression and illness, compels families to move into degrading housing in dangerous neighborhoods, uproots communities, and harms children. Eviction reveals people’s vulnerability and desperation, as well as their ingenuity and guts.
Matthew Desmond, Evicted, p. 5

The pandemic and its fallout have exacerbated severe housing issues that existed in the U.S. long before COVID-19 struck. We now face a serious housing crisis. Millions of Americans are at risk of losing their homes in the wake of the pandemic due to widespread job loss, lack of childcare that enables people to go to work, illness, and other related stressors that have led to financial insecurity for many. Renters are particularly vulnerable as they are less likely to have the resources to weather loss of income. According to 2018 Census American Community Survey data, nearly half of American renter households were cost burdened, spending more than 30 percent of household income on housing. Small landlords are facing their own significant financial strains; they rely on rent to pay their own bills and keep the lights on in the properties they own.

At the start of the pandemic, states and localities across the country issued moratoria (or offered affirmative defenses) for evictions, utility shut offs, and related fees. Most of these expired in July 2020, along with the federal CARES Act eviction moratorium for public and federally backed housing.

On September 1, 2020, the Centers for Disease Control and Prevention (CDC) issued an unprecedented Agency Order to temporarily halt residential evictions for nonpayment of rent for qualified renters until December 31, 2020. (The Order became effective upon publication in the Federal Register on September 4.) To qualify for protection under the Order, renters must present a signed declaration to their landlord that they:

  • have used best efforts to obtain all available government assistance for rent or housing;
  • satisfy a financial eligibility test (either expect to earn no more than $99,000 annual income in 2020; were not required to report income in 2019 to the IRS, or received a stimulus check pursuant to the CARES Act);
  • are unable to pay full rent due to substantial loss of household income, loss of work hours, or out-of-pocket medical expenses;
  • are using best efforts to make timely partial rent payments that are as close to the full amount as possible; and
  • would likely be rendered homeless or forced into a shared-living situation.

The Order notes that COVID-19 poses an unprecedented health threat, and eviction moratoria “can be an effective public health measure utilized to prevent the spread of communicable disease.” Specifically, the moratorium facilitates self-isolation by people who are ill or are particularly at risk and allows states and localities to effectively implement stay-at-home and social distancing measures. The housing stability achieved by a stay on evictions also helps protect public health, because evictions increase the number of persons living in high-risk congregate settings, such as homeless shelters.

While on its face, the Order is a “win” for public health, legal challenges on statutory and constitutional grounds are almost certain, and implementation will likely present difficulties. While many of these questions may be answered by the time this blog is published, here are some of the issues that public health lawyers are considering in the immediate wake of the Order’s announcement:

  1. Authority. Do Section 361 of the Public Health Act (42 USC 264) and 42 CFR 70.2 grant the CDC authority to issue a nationwide order banning court proceedings, even for a valid public health purpose? Section 362 provides that the Surgeon General (head of the Public Health Service) “is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from…one State or possession into any other State or possession.” The statute lists examples: inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary (emphasis added).” But the question remains whether Congress contemplated a nationwide eviction moratorium as one of these measures. The examples listed, except for the destruction of infected animals or articles, do not describe the federal government controlling property interests, nor do they seem to contemplate interfering with state and local courts. Is the Order constitutional on interstate commerce or other grounds? Would the Order constitute an unconstitutional “taking,” because landlords are not able to exercise their legal right to repossess their property? These are thorny legal questions that will undoubtedly be considered in the weeks to come, and resulting court decisions will have broad repercussions for federal efforts to control communicable disease in the future.
  2. Grounds for eviction. The Order prohibits eviction for nonpayment of rent but does not appear to protect against eviction for any other reason. For example, landlords may still evict tenants for breach of lease, which usually requires a finding that the breach was “substantial,” a standard that varies significantly, even from court to court. Or can landlords refuse to renew leases that are set to expire during the moratorium period? There may prove to be “loopholes” that stymy efforts to keep people housed during the pandemic.
  3. No financial relief. The Order does not release tenants of their obligations to pay back rent, nor does it prohibit landlords from charging late fees, penalties, or interest. In the absence of federal rental relief for tenants, the Order merely pushes the problem four months into the future. Tenants who cannot pay rent now are very unlikely to be able to pay 4 to 5 months’ worth of rent plus fees and penalties come January 1. Landlords will also be no better off if their tenants remain unable to pay rent and buried in debt. The National Association of Realtors has asked for immediate Congressional action on rental assistance for property owners.
  4. Enforcement.  The Order allows the Department of Justice to initiate proceedings to impose criminal penalties for landlords who violate the Order, but it is unclear whether the administration would follow through with enforcement. Also, the tenant must make certain declarations under penalty of perjury, but the Order does not state when or how tenants can “prove” that the information in the declaration is true. Questions also remain about what constitutes “best efforts” to obtain government assistance.

Despite the many legal and practical issues that will be considered in the weeks and months to come, the nationwide moratorium will likely prevent millions of people from losing their homes during the pandemic if they take the actions necessary to declare their eligibility —at least until next year. However, from a practical perspective, the moratorium is only a half measure that will not offer a solution to the housing crisis without Congressional action on rental relief. Any road forward will require innovative measures that serve the interests of both tenants and small landlords that are suffering financial harm during the pandemic—measures that will almost certainly require Congress to act.

This post was written by Kerri McGowan Lowrey, Deputy Director/Director of Grants & Research, Network for Public Health Law—Eastern Region Office.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.