: Biden’s latest eviction moratorium aims to protect renters, but also brings ‘new level of uncertainty’

“This moratorium is the right thing to do to keep people in their homes and out of congregate settings where COVID-19 spreads,” said Dr. Rochelle Walensky, director of the CDC. “It is imperative that public-health authorities act quickly to mitigate such an increase of evictions, which could increase the likelihood of new spikes in SARS-CoV-2 transmission.  Such mass evictions and the attendant public-health consequences would be very difficult to reverse.”

Throughout the pandemic, public-health experts have warned that the associated eviction crisis could hamper the country’s efforts to combat the coronavirus. Research has shown that higher rates of eviction promote the spread of the virus that causes COVID-19, since people often up living live in more crowded conditions when forced out of their own homes.

But consumer advocates argue that the Biden administration’s new moratorium continues to miss the mark in adequately protecting struggling renters across the country.

“It’s just going to introduce a new level of uncertainty,” Eric Tars, legal director of the National Homelessness Law Center, said of the new moratorium.

Existing gaps in the moratorium were not addressed

An ongoing concern among consumer advocates since the first nationwide eviction moratorium was issued by the CDC in September under the Trump administration is that loopholes existed in the order that landlords could exploit.

In particular, the new moratorium like the one that preceded it only prohibits evictions on the basis of non-payment of rent. Evictions pursued for other reasons, including criminal activity or other lease violations, can continue under the new CDC order, as before.

“What we found under the last moratorium is that landlords just are very clever at finding out ways to exploit that loophole, get around it and still evict people from their homes,” said Sarah Saadian, vice president of public policy at the National Low Income Housing Coalition.

Landlords have already taken umbrage with the new moratorium, on their part.

“Shame on me for assuming the moratorium would not be extended after the president announced he has no legal authority to do so nor was Congress able to pass legislation to do so,” David Howard, executive director of the National Rental Home Council, told MarketWatch in an email. “Meanwhile, rental-home property owners have lost billions of dollars they will never recover.”

Another major concern is that the order does not address what happens to struggling tenants when their leases expire. Given that the pandemic has now lasted for well over a year, many households at risk of eviction could be in this position. Those issues were left unaddressed by the new order.

Determining who qualifies isn’t straightforward

As before, the protections of the moratorium aren’t automatic. Instead, renters must sign declarations to their landlords stating that they cannot afford to pay the rent and that they are attempting to receive assistance. And now they must also attest that they qualify based on the risk of COVID-19 transmission in their area.

The new moratorium is more targeted than the blanket prohibition that was in place previously, according to the details released late Tuesday by the Centers for Disease Control and Prevention. It only applies to counties “experiencing substantial and high levels of community transmission levels” of the virus that causes COVID-19, the CDC said.

A spokesperson for the CDC noted that information on whether a county’s COVID-19 transmission risk meets the CDC’s threshold for the moratorium is available on its website. But some advocates pointed out that the tool isn’t foolproof.

“Already some advocates have reported to me that the CDC map is incomplete and there are some areas that show up as grey ‘no data’ zones, so one question is going to be what happens in those jurisdictions,” said Eric Dunn, director of litigation at the National Housing Law Project. That was the case, as of Friday, for the borough of Valdez-Cordova in Alaska, for instance.

Putting the onus on tenants, advocates say, creates significant challenges to begin with. Adding to their struggles is the fact that few renters manage to retain legal representatives before they head to eviction proceedings. There are only three states and a handful of cities where tenants have a right to counsel, meaning that everywhere else an eviction case can proceed even if the renter doesn’t have a lawyer.

“We are tremendously grateful for the moratorium, but the effectiveness is often only as good as the enforcement,” said John Pollock, coordinator of the National Coalition for a Civil Right to Counsel. “And without counsel, the enforcement is very, very spotty.”

Evictions have proceeded throughout the pandemic when other moratoria were in place, including the moratorium established by the CARES Act that was meant to ban any evictions for tenants living in properties that received federal funding. But without a lawyer to inform them of their rights, tenants may not receive the protection they are entitled to.

The pandemic is a moving target

Some consumer advocates argue that the new limits on who qualifies lacks logic. The new moratorium, they say, punishes Americans who live in areas of the country with less COVID transmission, even though those residents aren’t necessarily in a better financial situation.

The pandemic is also a moving target. “The fact that case counts lag behind the actual infection rate shows how problematic this approach is going to be,” Tars said.

As he put it, if a tenant could live in a county with low enough transmission so that the moratorium doesn’t apply, they could face eviction. But the next county over could have higher transmission. The tenant could then be forced from their home and have to move in with family a county over where their risk of catching the virus is greater, defeating the purpose of the moratorium in the first place.

Similarly, a tenant could be evicted because she doesn’t qualify given her county’s COVID situation one week, only for the situation to get worse a week later.

Will the moratorium stand up in court?

Since the CDC issued its moratorium back in September, the strategy has faced legal tests from property owners who argued the move was unconstitutional. Some federal judges have sided with those landlords in the past.

Back in June, the Supreme Court held off on taking up a challenge the CDC’s prohibition, with justices citing the moratorium’s impending end date as their main reason. But the Court warned that if the moratorium were extended again that might not be the case. Before it issued the new moratorium, the Biden administration referred to that decision as its justification for not extending the previous ban.

By having the CDC issue a new moratorium, Biden took a big risk. The move could end up backfiring, as Ben Koltun, director of research at Beacon Policy Advisors, warned prior to the new moratorium being enacted. “Not just in the order being struck down by the courts but having future public-health emergency orders curtailed,” Koltun said.

Already, one federal judge who had ruled against the previous moratorium has signaled she will take up a case brought forward against the new one the Biden administration issued.

For tenants, their fates will be in the hands of local judges — and how receptive those judges are to the Biden administration’s approach. A judge could choose to heed the Supreme Court’s warning and proceed with an eviction even if the CDC ostensibly prohibits it.

But Biden does appear to be aware of that risk. The White House has suggested the new moratorium is meant to buy time for tenants to receive the billions of dollars in emergency rental assistance that’s still outstanding months after it was appropriated by Congress.

And consumer advocates, while critical of how the measure was designed, do believe the moratorium serves a purpose. “At the end of the day, it will keep millions of renters stably housed, and we’re deeply appreciative of that given the rise of the delta variant and the fact that state and local governments just haven’t spent down their emergency rental assistance money quick enough,” Saadian said.