If The Supreme Court Rules Against The Eviction Moratorium, When Would Holdover Tenants Actually Be Evicted?

During normal times, it can take months to evict tenants. Now with a massive backlog, it could take years.


By this point, it should be painfully clear that the Biden Administration's latest eviction moratorium is an effort to bide time. The President has admitted as much. Now, DOJ will oppose any adverse ruling, citing the risk of irreparable harm if tenants are evicted. For example, DOJ argues in a DDC brief:

Any injury to Plaintiffs caused by a temporary administrative stay is outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the highly contagious Delta variant.

Eviction is not an immediate process. During normal times, it can take weeks, and event months to evict someone. The Dukeminier & Krier casebook (Chapter 7) lists several estimates. For example, New York requires 30 day notice, and the process can take 3-6 months. A study from the District of Columbia found the average time to evict was 114 days. In Massachusetts, the process could take as long as two years! All of these estimates are from normal times. Now, courts will have a massive, 18-month backlog. It will take forever for the clerk to file the cases, process them, issues summons, provide notice, schedule hearings, etc. Plus, states offer additional ways to challenging evictions based on hardships. I think the fears that millions of people will immediately be thrown on the street where they can spread COVID are entirely unfounded.

There is another property-related issue to address. The moratorium simply prevents landlords from removing tenants. It does not forgive the unpaid rent. Unless Congress takes action, millions of Americans will have massive debts they will never be able to repay. Their credit scores will be destroyed. And they will likely be unable to ever get a lease again, because of past failure to pay rent. This moratorium will have cataclysmic long-term effects for the housing market. The longer this process drags out, the more problems will be created.

I've been giving the Supreme Court vote count some more thought. It may not be 5-4. The Chief could be livid that the government is thumbing its nose at the Court. I also have to imagine that Justice Breyer, and maybe even Justice Kagan, are upset with this sort of cynical ploy. I almost wish the Court granted cert here. The shadow docket spares Acting SG the need to defend this policy live.

NEXT: Today in Supreme Court History: August 7, 2010

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  1. Where is the evidence that eviction increases transmission? The locked down had higher death rates, because they breathed the air of others indoors. Being outside reduces the rate of transmission. Eviction to the street will reduce transmission. The landlords should argue for expedited evictions to reduce the risks to the tenants.

    Failing expeditious evictions, send the bill to the quacks at the CDC.

    1. “eviction increases transmission”
      Anyone who has residual brain function knows that “reason” is pure fantasy

      1. Also, it’s kind of ludicrous to think that a county-based rule would “prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession”. It might be hard to demonstrate even a rational basis for that aspect of the rule.

        1. Seems rational to think that quite a few people who get evicted would travel interstate as a result…

          1. That doesn’t explain why the order is based on county-level transmission rather than state-level transmission numbers. Except that using the same thresholds would mean that the whole country was affected, and the CDC wanted some distinction from the last extension, even if it’s essentially a pretense.

            1. Are you saying that a policy that says ‘you can’t evict anyone in a state which has a high infection rate’ isn’t less tailored (and rationally so?) than a policy which says ‘you can’t evict anyone in a county that has a high infection rate?’

              1. No, I am saying that if the CDC ordered that evictions were prohibited in states with “substantial” or “high” levels of community transmission which is the threshold used for countries, then the effect would be indistinguishable from the previous extension because every state meets that threshold.

                And that writing a rule that distinguishes between counties clearly tries the idea that this is about interstate effects or commerce.

      2. ““eviction increases transmission”
        Anyone who has residual brain function knows that “reason” is pure fantasy”

        Not really — under the way that the quarantine law was intended to be used, not the way it currently is being used.

        In an earlier era, those who were infected were quarantined until they either got better or died, and isolating them from the general public served to prevent them from spreading their illness *to* the general public.

        Anything that served to remove those so quarantined from their place of isolation, i.e. being evicted from it, would serve to defeat the purpose of the quarantine and hence increase transmission of whatever they had.

        Likewise, look at what happened to the nursing homes — and imagine folks with COVID now living on the street, infecting all who passed by.

        I’m not saying that the moratorium was good policy — I actually consider it quite asinine — but there *was* solid medical science behind it.

        1. I’d have called it medical fantasy given the actual ground truth.

    2. I don’t disagree that this conclusion has been presumed rather than studied and proven. But there is no need to resort to such a strawman. The majority of dispossessed residential tenants move in with family, friends, or into shelters creating indoor, multi-family, overcrowded spaces. At least, that is the argument your criticism-however genuine or tongue-in-cheek it may have been-side-steps. In any event, even the actual argument seems weakened by wide vaccine access that is now available where it wasn’t when the moratorium was first implemented, and seems to just be assumed rather than proven.

  2. This entire debacle is why we sold our rental property when our reliable renters left. The risk of getting resistive litigious renter are just too great in CA which often won’t enforce rental agreements

    1. “Pacific Heights” 1990.

    2. That’s why we should offer everyone access to a $150k interest free mortgage and then encourage cities like St Louis and Cleveland to offer incentives in order to attract people to affordable homes in their cities. So part of the reason America has had suboptimal economic growth for the last 20 years is because people are spending too much money on housing costs. There are numerous ways to invest in America and so we are encouraging one type of investment that ends up reducing disposable income…it’s asinine. So we need to encourage people to focus on reducing housing costs and one way to do that is have people move out of LA and Dallas and Atlanta to cities that currently have the infrastructure for hundreds of thousands of more residents.

      1. I think this is a legitimately interesting policy idea. Even if there had to be some sort of fee to cover administrative costs, people’s payments would be low enough that almost any job could cover the mortgage.

        1. It’s an interesting idea, for sure. Unfortunately, in many states high property taxes make up a significant portion of the mortgage and that might still make home ownership unaffordable (at least in those states, I suppose).

          1. Correct, but that’s where the incentives come in. I read that in Illinois 40% of property taxes are going to pay pensions…so that means if someone moves to Chicago and buys a house they will be paying for someone’s pension that never provided them any services and the retired state employee probably lives in Florida or Arizona and spends their pension checks in those states. So that means that for new residents property taxes can be lower without sacrificing services. So it’s a vicious cycle for many states—high taxes means people don’t want to move there and then they have to keep raising taxes to pay pensions.

      2. “offer everyone access to a $150k interest free mortgage”

        That was tried — remember 2008???

        1. Nope, people were bidding up prices during 2001-2008 because the economy was weak and so people were trying to make money in the housing market. So that is why the interest free mortgage should be below median home price because it would create a downward pressure on prices and people wouldn’t be trying to make money on their house they would try to make money through their jobs and other investments.

        2. This is from the Bush WH and the Bush presidential library still thinks this holds up as part of his “legacy”…he might be the dumbest person on the planet;

          The US homeownership rate reached a record 69.2 percent in the second quarter of 2004. The number of homeowners in the United States reached 73.4 million, the most ever. And for the first time, the majority of minority Americans own their own homes.
          The President set a goal to increase the number of minority homeowners by 5.5 million families by the end of the decade. Through his homeownership challenge, the President called on the private sector to help in this effort. More than two dozen companies and organizations have made commitments to increase minority homeownership – including pledges to provide more than $1.1 trillion in mortgage purchases for minority homebuyers this decade.
          President Bush signed the $200 million-per-year American Dream Downpayment Act which will help approximately 40,000 families each year with their downpayment and closing costs.
          The Administration proposed the Zero-Downpayment Initiative to allow the Federal Housing Administration to insure mortgages for first-time homebuyers without a downpayment. Projections indicate this could generate over 150,000 new homeowners in the first year alone.
          President Bush proposed a new Single Family Affordable Housing Tax Credit to increase the supply of affordable homes.
          The President has proposed to more than double funding for the Self-Help Homeownership Opportunity Program (SHOP), where government and non-profit organizations work closely together to increase homeownership opportunities.
          The President proposed $2.7 billion in USDA home loan guarantees to support rural homeownership and $1.1 billion in direct loans for low-income borrowers unable to secure a mortgage through a conventional lender. These loans are expected to provide 42,800 homeownership opportunities to rural families across America.

      3. Something I have suggested in the past is altering the Section 8 rental assistance program so that rather than making rent payments to a landlord the government underwrites a mortgage in the beneficiary’s name and makes those payments instead

        It will provide more stability, equity (as in paid-off home value) and help create the generational wealth that people locked in antipoverty programs never get to establish

        This might be a time to do it too, as I imagine once all these evictions go through a lot of these rental properties will end up being sold

  3. “Should” be livid, because who really knows with Roberts.

    Also, they completely misrepresented that they had no intention of renewing the moratorium, then went ahead and did it anyway. During normal times, this, combined with all the times that they flipped position with the Trump admin (then went on to lose) should mean that their credibility is zero.

    I say “should” because who really knows how long Roberts will allow the Federal govt, states, and municipalities to play games, defending something all the way to appellate court, then deciding to moot the case at the SC cert stage to evade review. I suspect it wont be him that clamps down, it will be 5 others who decide that they have had enough.

    1. ” Also, they completely misrepresented that they had no intention of renewing the moratorium, then went ahead and did it anyway. ”

      Perhaps they didn’t foresee that enough knuckle-dragging, anti-social, disaffected hayseeds would eschew vaccine and masks to precipitate extension and resurgence of the pandemic?

      Carry on, clingers. Your betters will let you know how long and how far. Your continued compliance is appreciated.

      1. You are naturally unaware of the NYTimes article last week indicating there are 2 groups not vaccinated. Half of Black and Hispanics are vaccination resistant. They are concentrated in urban areas. Democrats. As of last week only 58% of NYC public employees vaccinated

        1. ” As of last week only 58% of NYC public employees vaccinated”
          I wonder how fast that will change with DeBlasio’s “pass sanitaire”

    2. “Also, they completely misrepresented that they had no intention of renewing the moratorium, then went ahead and did it anyway.”

      What evidence do you have of this, as opposed to thinking that Congress would do something about it, and taking action only after Congress did not.

      The facts demonstrate that they did not do anything until after Congress failed to take action, putting your hypothesis off to a questionable start.

      1. The fact that Pelosi adjourned the House (she did not have the votes, the moderates were no) does not magically justify unconstitutional executive orders.

      2. What evidence do you have of this, as opposed to thinking that Congress would do something about it, and taking action only after Congress did not.

        Because Biden isn’t an idiot, and knows that there aren’t 10 Republican votes in the Senate to extend the moratorium.

  4. Suppose lightning strikes, and SCoTUS enjoins the policy from taking effect. Could a state institute an eviction moratorium?
    In the People’s Republic of NJ, there is a state moratorium on evictions. Is it constitutional for a state to do it? Would it matter if the eviction were an executive order, or an actual law passed by the NJ People’s Duma (e.g. state assembly, and state senate)?

    1. I suppose that depends on the Court’s basis for the ruling. Lack of statutory authority wouldn’t stop the states, but declaring it an unconstitutional taking would.

      1. A state could simply shut down the state court that hears eviction proceedings — there is nothing in the contract clause about a state duty to enforce them.

        In other words, it can’t say that a landlord can’t evict tenants, but it can eliminate the court in which the landlord tries to do so????

        1. I think there’s the separation of power issue. Some states tried to do just that with some “unfavorable” groups. Those groups got a court order to force the state to do its job. I don’t think the legislative branch could shut down the state judicial branch.

          1. I don’t think the legislative branch could shut down the state judicial branch.

            Even if that’s so, judicial branches don’t evict people; they just decide that particular evictions are allowed. It still takes an executive branch officer (at least in most states) to actually conduct the eviction. If the legislature or the governor tells sheriffs (or whoever handles that particular job in that state) not to actually carry out the eviction, it can’t happen.

            1. At what point is it a taking if the state lets someone squat in my house and does not let me use force to evict that person myself?

            2. That is one of the things that happens in CA, The state and localities are reluctant to or won’t enforce rental agreements

    2. The state has a general police power, so it doesn’t have the separation-of-powers or delegation problems that the Surgeon General does under 42 USC 264. A state would still have to overcome the Fifth Amendment argument, probably by compensating the landlord for the temporary taking, and would also have to address a Contracts Clause argument if the state argued that deferring rent collection isn’t the same as a taking.

    3. Y. I sued NJ, and lost in Federal Court. It is not a resource for rational review.

      1. Your case was a little different though, DaivdBehar.

        1. Mostly because it was conducted by a guy with a mail order law degree.

          1. No David Nieporent, not in DaivdBehar’s case. I believe he acted properly for his circumstance (I read the court papers awhile back). DaivdBehar brought suit in a court of law; he did not protest, riot and cause mayhem in the streets. The sum involved was not insubstantial. I am not talking about the legal merits of his case. I am talking about how he went about getting redress; he acted properly.

            Now his negative fixation on the law profession, OTOH, is another matter.

            1. No; I pulled his suit off PACER several months ago. He made absurd factual claims with no support and his argument boiled down to, “You — the judge — are a Nazi if you don’t rule in my favor.”

              A frivolous suit is better than storming the Capitol, I guess. But it’s still frivolous.

    4. Probably not “SCoTUS enjoins the policy from taking effect” –

      Lower courts will most likely do the dirty work, the SC may simply have the opportunity to deny cert and/or decline to stay the mandate.

    5. IMO it would certainly be a lot closer to legal if a State were to implement it.

      1. That is what I am afraid of, Jason = a lot closer to legal if a State were to implement it

      2. I can see the direction you are going, but not that it magically becomes legal, state constitution-dependent, were this the case. It still, all things being equal, appears to be unlawful overreach in the name of public health, or safety, or some other feel-good phrasing. That said, it remains to be seen, state legislatures may craft their own responses.

  5. With all the stimulus payments plus increased unemployment that has been handed out in the last year and a half, no renter has really been unable to pay. So everyone who stands to be out on the street with no credit and no prospect of being housed again thoroughly deserves it. We just need enough police to handle these people when they turn to other forms of crime, as they soon will.

    1. They will be housed again, once all these evictions take place there will be a glut of vacant properties, and landlords will be forced to take any tenants they can get, just to get cash flowing again

  6. I don’t think Blackman has ever been evicted. And it’s funny that as he is in a red state he picks two blue states to talk about. In idaho i can assure you you’ll be homeless soon.

  7. The only tenants who would be evicted are ones who would have been evicted anyway.

    Evicting a tenant takes time, costs money, and usually means the landlord isn’t getting the back rent paid. No landlord wants to evict a tenant. The landlord would rather work with the tenant o get well than evict them. It’s cheaper to forgive one months rent than evict a tenant. A tenant doesn’t want to get evicted because they have to move & find a new place to live, and having an eviction makes it harder to get a new place. This dynamic is what keeps people paying rent. The moratorium breaks this dynamic.

    When you remove the ability to evict tenants, there’s now a group with little to no reason to pay rent or even work out a get well plan with the landlord. There’s no reason to get well, no reason to pay anything, just keep the money and hold out as long as possible. Meanwhile the landlord has bills to pay (taxes, repairs, etc) that are getting backlogged. At some point, the landlord has no ability to pay taxes and no incentive to make repairs or keep the place in good condition as they want the person gone so they can get a new person who will actually pay rent. At this point, the landlord has an incentive to make the tenants life miserable and act more like a slumlord (at best).

    Ending the moratorium is a start towards restoring the balance. Until then, problems will only continue to build.

    1. I will add that tenants that dont pay rent or are behind on rent typically cause significantly more property damage, including more wear and tear, than done by paying tenants.

      1. Agreed. If you want your deposit back, you care about the condition of the place. There’s a reason Section 8 Maintenance is stupidly high.

  8. “Unless Congress takes action, millions of Americans will have massive debts they will never be able to repay. Their credit scores will be destroyed. And they will likely be unable to ever get a lease again, because of past failure to pay rent.”

    Now do property owners.

    On a serious note, idiotic to assume they will never get a lease again. Of course they will because there will also be millions of properties sitting vacant. The market will come up with creative solutions to the problem.

    1. Remember why the FDIC was created — people had lost a lot of money when the banks closed and would never have again trusted the banks without the FDIC insurance.

      I’m thinking that something similar will have to be created for landlords — some sort of Federal guarantee of payments if the tenant defaults.

      As to credit scores — what do they mean if everyone has a bad one???

      1. Remember why the FDIC was created — people had lost a lot of money when the banks closed and would never have again trusted the banks without the FDIC insurance.

        Not exactly. As “Sneakers” put it, how do you make a bank insolvent? Spread a rumor that it’s insolvent. People would withdraw their money to protect themselves. This eliminates the capital banks have. Result, the bank becomes insolvent.

        FDIC was also created so that people would stop withdrawing money from the banks based on rumors.

    2. “Of course [evicted tenants with unpaid back rents will easily find rental housing again] because there will also be millions of properties sitting vacant. The market will come up with creative solutions to the problem.”

      There are lots of uses for real estate beside residential rentals. As a prime example, simply consider the profound scarcity of quality residential rentals in jurisdictions with strong pro-tenant rent controls.

      Once again, the people who spend their time on social media are chiefly society’s misfits: functional idiots with no common sense and few life experiences. Why does anyone listen to them?

  9. My local eviction courts are mandating mediation before you can proceed to trial. One guy I work with has a tenant that both owes substantial rent and got busted with drugs at the residence (which qualifies him for eviction despite the moratorium). Took three months until the mediation session even got scheduled, then once it happened was basically useless.

    The facilitator was a volunteer lawyer (so read someone who is sympathetic to tenants) and the standard agreement they were pushing was waive all backed rent, require the tenant to make one months payment, and then agree to voluntarily move out in 30 days. Rent owed was 11 months and the tenant had no intention of vacating even if they signed the agreement. Landlord volunteered to waive all back rent, except for security deposit, in return for an immediate move out in 7 days. No dice. So off to trial IN SIX MONTHS it will go. If the tenant loses they can still appeal and stay in the unit while that resolves. Usually that process would be a separate 6-9 months but I could see it being another 12+ at this point.

    1. wouldn’t the agreement to vacate have been itself enforcable, with the tenant in contempt if he didn’t leave?

      1. I think it would have technically exposed the tenant to also contempt of court since it would have been bound into a judgement, but yes largely unenforceable. The landlord’s attorney did say that if he accepted the deal there would be no question, at least to the local court, the tenant had to go if he stayed further. I guess there is that. Judges don’t tend to like people who ignore their orders. Of course, that only gives you an iron clad case once you get into front of the judge….another six months after the tenant refuses to vacate in violation of the agreement….

        1. curious what state you are located

          In texas it was 4-6 weeks max, unless tenant fought the eviction, (at least pre covid)

    2. If the tenant is a true sponger, who has little income and never will have, the landlord eventually will deem the back rent not collectible and abandon trying to collect it. Early next year the landlord will issue a Form 1099-MISC to the tenant, since the amount of the abandoned debt is income to the tenant. Let the IRS take over from there. I am no expert, but I assume complications with future tax refunds and possibly with other income related welfare benefits will ensue. Pass the popcorn.

      1. Which the Biden IRS will forgive, because COVID.

  10. Congress won’t fix anything, they don’t have any courage to do what is right. Biden will ignore any court order because what are they going to do? GOP can impeach him and anyone else involved in this disaster in 2023 but I doubt he cares, because GOP senators won’t vote to remove him anyway. We have a de facto method for the feds to impose martial law through public health orders. It won’t stop until they are all voted out, and even then the bureaucracy can slow walk any changes forever and wait out the courts.

    1. Don’t think the Senate won’t convict if things get bad enough.
      Stagflation can cost Dems their seats and they know it…

      1. Even if an impeachment winds up in a conviction is Harris any better?

      2. Is that going to happen right after the trucker’s strike?

    2. “We have a de facto method for the feds to impose martial law through public health orders. ”
      I watched Unlocked last night. The facilitating the imposition off medical martial law in America was the evil motivator

    3. “Defying a court order” implies that it is binding over the person defying. A concurring opinion is no such order. It’s just glorified dicta even when it says I will join the other side if this is extended again. Kavanaugh overestimated the reception of his dicta (a recurring theme), that’s on him and could easily have been avoided by joining the minority (converting it to the majority) and penning a concurring (or possibly even majority) opinion on distribution of assistance funds.

  11. And they will likely be unable to ever get a lease again, because of past failure to pay rent.

    Unless that is somehow sealed — and I would not be surprised to see that happen. Then landlords will ask to see cancelled rent checks from 2020 and that will screw those who weren’t living in situations where rent was paid.

    Something similar already exists with the Mass CORI law which makes criminal convictions essentially secret. Not able to get the criminal conviction data (if any) on potential tenants, a cottage industry exists of people who go to various courts and look for arrests and criminal filings (which is public) with landlords being given that data instead of the actual *conviction* data (which isn’t).

    And woe to the person with a similar name….

    1. I would anticipate that eviction data, which is reflected in a version of a consumer credit report, is going to get highly regulated in most jurisdictions in the near future. It already is in CA and some cities. Even if you can get the data, you better not refuse to outright rent to someone who has an eviction history either because that is “discrimination” of course.

      More reasons why we just won’t have private landlords in the next 5-10 years. Only corporations are going to be set up to deal with the patchwork of regulations, risks of lawsuits, and also willing to take the risk on rentals at all.

    2. Something similar already exists with the Mass CORI law which makes criminal convictions essentially secret

      No, it doesn’t.

      1. Where do people come up with this stuff?

        1. the spinning machine inside their heads

        2. Plenty of in-group ‘knowledge’ is passed about by both left, right & center. It’s quite labor intensive to research every assertion, statement, and/or claim. This is one of the reasons that I am a proponent for providing sources for such. Doing so also makes for more informed, and thus, better debate, or if one prefers, argument.

        3. In the case of Dr. Ed, he’s a serial prevaricator.

        4. A grizzled ex cop in Yarmouth once told me that Dr. Ed is sexually aroused by having people prove him wrong on the internet.

          1. I do wish we had the old like system back.

          2. Why are you violating FERPA by telling us that?

  12. Of course, the SC can block the moratorium as unconstitutional taking, and grant immediate possession to the landlords. No backlogs, no other courts involved, just back up your troubles in your old kit bag, and bugger off.

    1. If it’s an unconstitutional taking, I don’t know if courts could grant immediate possession to the landlords, but it would require compensation. That would be the best scenario for the landlords.

  13. The fact that this will destroy the small owner rental market — 1 to 20 units or so — is a feature, not a bug. Large corporations will buy up the property for a reduced cost, increase the rent and further restrict the housing market.

    Corporations are coming into my rural area and offering large sums of money for real estate. Property that went for $4000 per acre a few months ago is now being pushed up to 8 or 9 thousand an acre. The corporation buyers are destroying the real estate market here. Land values and property taxes are going nowhere but up at the moment.

    You will own nothing and be happy!

    1. This is so true. Every single major regulatory or “reform” effort in Congress in the past 20 years (at least) have been done to benefit large corporations, starting with Sarbanes-Oxley. This is no different.

      1. Why then do so many large corporations fight some of them?

        1. Jealousy – a different corporation got to write the law to benefit that corporation, and not the corporation fighting it.

    2. “Property that went for $4000 per acre a few months ago is now being pushed up to 8 or 9 thousand an acre.”

      Few people would call a doubling of value “destroying a market.”

      Also, corporate landlords operate under the same economic rules as do small landlords—unless, of course, the government makes exceptions for them. It is an accepted tenet of our modern administrative regulatory state that a few large corporate entities are far easier to regulate than many thousands of smaller ones.

      1. Its not really an increase in value though, the corporations are just overpaying because they have deeper pockets and want to outbid any smaller competitors, In the long run are trying to establish a near monopoly on rental properties

        The eviction moratorium will likely accelerate the process, as I imagine a lot of landlords will be existing the business once the dust settles

  14. Property owners should not be forced to allow others to use their property by the federal government. Unless of course they’re a tech company that doesn’t want people who’ve broken the terms of service with them to use their property for speech!

    Sorry, you Trumpistas sold your right to invoke property rights for a mess of orange topped mess of pottage…

    1. I didn’t support Trump.

      Are you ok with Biden doing this and taking away basic property rights from millions of Americans? That’s a yes or no question.

      1. I’ve said here before that I find the policy to be stupid and immoral, I’m just pointing out to the many Trumpistas here yelling about property rights that they’ve not a leg to stand on since they’ve been engaged in plotting how to subvert the property rights of tech companies for much less laudable reasons. If you’re not a Trumpista then that wasn’t directed at you.

        1. That’s true. And the same could be said the other direction. If Trump had done (or if you prefer, when Trump did) a violation of this magnitude, the internet would have exploded with indignation. Now, crickets.

          Look at the outbreak of sympathy for ranchers along the border when Trump did his unconstitutional money grab for the wall. At least those people – some of whom I know – would have legal recourse that would have forced compensation.

          Our shitty media finding those people sympathetic then and ignoring this now is appalling.

          1. bevis, I don’t recall a lot of coverage for border ranchers where the wall was being built. I don’t want to argue that there wasn’t negative press about the wall, there was aplenty, but I don’t recall much of it framed with border farmers as the victims. I think this is maybe because, to their discredit, left-leaning folks aren’t quite as focused on ‘takings’ issues.

            I’m guessing what you’re saying here is (and correct me if I’m wrong) that there was this sympathy for people like border farmers property but not landlords today? If that’s true I think it’s because people have trouble seeing landlords as underdogs, they see tenants as such*. With border farmers everyone can agree they are the underdogs vs. the government…

            *I think that’s more than a bit simplistic, lots of landlords are literally little old ladies renting additions to their houses and such

            I’m not sure how this undercuts my point which is that people complaining about Trump, and then Biden, undercutting property rights via preventing property owners from evicting those who violate rental contracts have a leg to stand on when they’ve been yelling about preventing property owners from ‘evicting’ violators of terms of service.

        2. The “Trumpista” attacks weaken your argument.

          People seem to forget significant facts such as how the CDC’s eviction moratorium policy was started under and supported by Trump (or, relatedly, that Trump and his family are fully vaccinated, and that Operation Warp Speed that allowed early development and distribution of the vaccine was entirely a Trump policy).

          1. Doesn’t the fact that this started as a Trump admin action, in fact, strengthen his argument, to the extent that the right was only whispering about this when it was Trump’s baby and is now flipping out about it since it is Biden’s admin’s doing? I mean, there are important distinctions like vaccine accessibility and Kavanaugh’s (non-binding) concurring opinion. But still, I see the fact that this moratorium began as a Trump-approved/Trump Admin action as strengthening his argument to the extent the right has reacted wildly more negatively to Biden’s admin doing basically the same thing.

            1. The moratorium kinda/sorta made sense in the first months of the pandemic. Shutdowns shifted jobs from the restaurant sector to the package delivery sector, for example, and you could make the case for bridging people across their job changes (although the enhanced unemployment should have covered most of that??). This was true regardless of the politics of whoever was president at the time.

              The moratorium makes a lot less sense today, when employers across the board are screaming for employees. It seems like every local business with a sign board has ‘We’re hiring!’ posted. Some of the local fast food places are offering cash bonuses just for submitting a resume. With workers in demand like that, it’s harder to see why we continue to mandate that landlords supply free housing to renters. This also does not depend on the politics of whoever is president today.

              As the saying goes, when the facts change reasonable people change their minds.

              1. I don’t disagree with any of that, but I do believe that there is a large faction of folks who are not basing the increase or origin of their increased/new-found objection to this upon the logically delineated reasons you cite. I completely agree that vaccine accessibility, economic resumption, and other reasons are logical reasons why this might have been less of a reach of admin powers (via 42 USC 264 and 42 CFR 70.2) in mid-2020 than its extensions now are. I’d be shocked if there weren’t a handful of people whose reasoning for screaming now (and not in 2020) is primarily partisan political and not logical for every one whose reasoning is logical. And it would be the same way if the partisanship were flipped, this is not an anti-right or pro-left commentary at all.

  15. Good grief. There’s already $46 billion out there that Congress appropriated for rent relief, and gave to the States. Only about $3 billion has been distributed to landlords and tenants. Based on some accounts, that $46 billion could more than pay the past due rent. Someone needs to quit with the political theater and get that money disbursed where it needs to go.

    1. Some landlords are not accepting federal money, due to the large amount of red tape and paperwork involved. Also landlords may not like the prospect of having a deadbeat tenant in their rental unit for another year. They would rather take the chance of replacing the tenant with someone more responsible.

    2. It’s been more than a year with effectively no distribution. What are the odds that it’ll happen anytime soon?

      Besides which, if the other pandemic relief programs are any guide, half of the money has probably already been stolen by cronies of government officials and con men that the government couldn’t screen away.

      This whole thing is a joke. I hope America’s landlords sue us into oblivion. Now that the last few presidents have killed the constitution (with a ton of legislative help) there’s really no point in this anyway. America is governed by Calvinball now.

      1. I don’t know if I’d call it a joke, more like the kind of thing that a government designed to usually move deliberately does when they rush to meet an emergency.

        And while I want to see relief for landlords I don’t want them to sue us into oblivion, it’s not the perps of this that’ll pay that, it’s you, men and our kids.

  16. I’m sure Congress will leap into action. They’ve only had a year and a half to think about it.

    1. The only time Congress leaps into action is to rubberstamp a pay raise for themselves, and to exit the building at end of session.

  17. Does the eviction moratorium prevent landlords from suing for back rent?

    Does it prevent landlords from reporting the back rent to credit agencies as a debt owed?

    Does it prevent landlords from selling the property and the new owners saying they don’t want to rent?

    1. Even if it doesn’t prevent the latter it would prevent the new owners from evicting the tenants, right? It wouldn’t make sense otherwise…

    2. 1: No, but that’s almost always a dry hole. Even if they sue and win, the tenant will likely not pay, meaning the landlord is just out more time and lawyer costs

      2: It does not, however with the glut of vacant units about to be on the market I doubt poor credit will prevent many tenants from getting new rentals, especially with landlords desperately needing to restore cash flow

      3: Yes it does, a tenant is still a tenant and retains all rights even if ownership changes hands. The new owner will have to go through the same eviction process the old one would have

  18. Question: if you didn’t want evictions during a pandemic (if you don’t believe this is a pandemic, imagine one), what would be the most (or at least a better) libertarian way to get that?

    Classical liberal polities regularly granted quite broad and serious powers to government to combat public health crises (property could be summarily seized and destroyed, freedom of movement stopped, etc.,). This was likely based on the Harm Principle idea that in a state of contagious disease other people’s actions and property could harm others and therefore could be restricted. However, even if this justification is met it seems to me the most narrowly tailored (to borrow a legal term) means to satisfy this must be sought out.

    Seems to me using the general ‘covid relief’ funds to pay people’s rent that were behind is one way to have approached this better, though I’m not sure how that would have worked (would landlords put some kind of liens on the relief due tenants?). As to people breaking other terms of the lease warranting eviction, I dunno. But seems there’s a better way.

    1. If government wants that, government should pay the rent, and maybe treat that as a loan to the renter to address moral hazard.
      In fact, Congress allocated tens of billions of dollars in rent aid for exactly the purpose of keeping renters in their apartments. Only about a twentieth of that money has been disbursed.

      1. Can you give me a link re the 1/20th?

    2. With all the income replacement that people received as stimulus checks and unemployment supplements there was little need for an eviction moratorium in the first place. People had the money to keep paying rent, most only chose to stop when they couldn’t be evicted for it

      For the handful of people who fell through the cracks and lost income without being able to get payments from the government, a much smaller and more targeted program could have been set up to help with them with rent, although personally I think a better solution would be to simply patch the cracks in the income replacement programs so they could collect that

      In short, replace incomes, leave all other financial obligations intact

  19. Does anyone remember what happened in the South Bronx in the 1970s? Landlords with their backs to the wall perceived arson to be their only escape. People died. It was pretty tragic.

  20. I think you’re overstating a lot of this.

    “It will take forever for the clerk to file the cases, process them, issues summons, provide notice, schedule hearings, etc.” You’d be surprised, because the vast majority of these are going to be default judgments. I realize every state is different, but where I’m from, filing is automatic, processing is automatic, summons are issued by the plaintiff, and evictions are scheduled en masse because the vast majority are just default hearings.

    “It does not forgive the unpaid rent. Unless Congress takes action, millions of Americans will have massive debts they will never be able to repay. Their credit scores will be destroyed. And they will likely be unable to ever get a lease again, because of past failure to pay rent.”

    Good. Good. Good. And Good. They can declare bankruptcy (I swear people just constantly forget about bankruptcy) and start rebuilding their credit like everybody else.

  21. Whack-a-mole coming up. CDC determines a County qualifies; gets sued. CDC removes Moratorium for That County rendering case moot. Applies it again later. Pretextual that CDC invents a rule and can change it willy-nilly using their ‘numbers’ which have been manipulated cynically for over 18 months. What numbers can disprove their baseless assertions?

  22. Most leases are of limited term.

    In jurisdictions that don’t have requirements that the lease be renewed or renewed at a particular price, does anybody out there in cyberspace know whether a landlord can regain possession of their property if their lease came to its natural end and the landlord declines to renew?


    1. Depending on the area, in many cases leases go from a fixed term to a month by month with 30 days notice from either side to break the lease.

      I’ve rented apartments on month to month leases. Often the monthly rate is little higher, but if you knw it’s temporary, it’s the way to go.

    2. It depends on state law and the previous rental contract. A landlord has the option to cancel the lease, but would still need to pursue eviction against the holdover tenant to remove them, and that action is currently barred.

    3. A tenant is a still a tenant and retains all rights even with an expired lease. The same eviction process applies

      1. The Moratorium specifically acknowledges that its scope is to ban evictions based on failure to pay rent. And it specifically identifies 5 subsets of evictions that are not affected/restricted by the Moratorium, with the 5th being the following broad language:
        “(5) violating any other contractual obligation, other than the timely payment…”
        -Obligation to vacate within the term is a contractual obligation unrelated to payment of rent. You can be evicted for expiration of lease even if you are current with rent, providing no mechanism in the lease or applicable law operated to automatically extend the lease beyond its original term. It has been successfully argued in my jurisdiction – even in cases where tenants were behind in rent and delivered their CDC declaration – that eviction for expiration of lease is not prohibited by Moratorium. [I acknowledge judicial officers in other jurisdictions may not be as receptive to expiration of lease falling with the language of subsection (5)].

        1. As I said, the same eviction process applies. If that process is moving forward in your jurisdiction, great. In many places though even allowed evictions are not moving forward if the client alleges financial hardship.

          I suspect these jurisdictions also account for the bulk of pending evictions, since that is where tenants feel more confident withholding rent, because they know their landlord can’t just find a loophole to evict them anyway

          1. I don’t doubt that, but incorrect, overbroad interpretations of the scope of the moratorium are not the CDC’s fault. Take up the trial court judges applying overbreadth on appeal and get a binding order that is specific enough to withstand stay remedies.
            Orders of possession AND writs of sheriff assistance (forceable law enforcement removal) are being issued and executed in a number of jurisdictions based upon expiration of the lease even when non payment of rent and tenant filing of CDC declaration is present.

    4. In my jurisdiction, judges are granting evictions based upon expiration of lease EVEN where there are no other bases (other than non-payment of rent) to do so AND the tenant has delivered the CDC declaration. I suspect there are jurisdictions in which that is not the case, but my interpretation (which has been well received by judicial officers in my jurisdiction) is that expiration of lease is not protected by the moratorium as it is a basis to evict that is wholly independent of non-payment of rent.

    5. This is a little-known area that is not receiving enough attention. There is a section in the Moratorium that has been there since the Trump Admin and is still in there now that makes clear the Moratorium prevents rent-based eviction only and it sets forth 5 subsets of evictions that are not restricted by the Moratorium. The 5th one is very broad and essentially says “violation of any contractual obligation…other than failure to pay rent”. In my interpretation, and that of many judicial officers of which I have first-hand experience, is that expiration of lease based eviction is not restricted by the Moratorium. Now, as others have noted, the Landlord would have to deliver requisite notice of non-renewal and avoid any auto-renewal situation that could arise per the terms of the lease or applicable law. But barring that, this Moratorium should not be able to bind landlords beyond the original term of 2020 leases. And given that 1-year leases are the norm, then many of these cases could be green-lighted by now. Of course, there are some states with protection that is broader than the CDC. There is a lot of misinformation and landlords aren’t aware of this argument. And there are presumably judicial officers who disagree with this interpretation. But you can’t convince me that “expiration of lease” is not a contraction obligation independent from payment of rent, and thus, per the Moratorium’s own language, is not affected/restricted by the Moratorium.

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