05/11/2021
What the end of the eviction ban means for landlords and tenants
Mortgage foreclosure litigation attorney Jason Vanslette shares how the moratorium ruling impacts landlords and property owners — and why waiting to evict may be the smart move
Credit: Canva Pro Photos
BY MARIAN MCPHERSON
May 06, 2021
On Wednesday, Judge Dabney L. Friedrich passed down a ruling that’s shaken renters, landlords, investors, and housing advocates.
After a seven-month legal battle between the Alabama Association of Realtors and the United States Department of Health and Human Services, Freidrich vacated the nationwide eviction moratorium, saying the Centers for Disease Control and Prevention overstepped its bounds when it extended the protections to include non-federally-funded rental housing.
“It is the role of the political branches, and not the courts, to assess the merits of policy measures designed to combat the spread of disease, even during a global pandemic,” her memorandum opinion read. “The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not.”
Inman sat down with Florida-based mortgage foreclosure litigation attorney Jason Vanslette to talk about what the ruling means for landlords looking to begin eviction proceedings as the United States Department of Justice is expected to file an appeal soon.
After the ruling, National Low Income Housing Coalition Director Diane Yentel told Inman the ruling will likely only apply to renters in Alabama and Georgia, the states where the plaintiffs are based. Is that true? Just how far-reaching is yesterday’s ruling?
There are federal and state moratoriums attorneys still have to take into account, and that also applies to landlords, property owners, and certainly tenants. Another really important point is the judge specifically denounced any application [of the ruling] applying to the plaintiffs only.
In other words, she felt the moratorium itself was unlawful and unauthorized under the Public Health Service Act, therefore its application should be on a nationwide scale. That’s important because a lot of the issues that we’re having in the court systems is that many tenants are coming in with both defenses from the CDC moratorium and local and state eviction moratoriums.
What’s important is, at least for your readers, to know is that at the very least the federal moratorium as applied should not be inhibiting any type of eviction action on the state level. The problem is, of course depending on what city or state you’re in, you might have some local eviction moratoriums or some other restrictions that this order would not have any effect on.
You have to look at your local areas, on a state and city level. Is there an eviction moratorium ongoing? Obviously, the CDC can try to make a nationwide moratorium, but they can’t override a state’s moratorium at this time.
That makes sense. How can landlords and property owners research their local and state eviction laws and figure out what eviction moratoriums or other restrictions are in place?
With the federal decision and the order suggesting [the CDC moratorium] is unlawful and that the application should be nationwide, that is invariably going to be appealed by the Department of Justice. So [the moratorium] may be stricken currently, but you could be midway through the eviction action, and sure enough, [the DOJ overturns the order] and then you’re stuck in the same situation as you were before.
That being said, on a state and local level, you can look at your governor’s orders. Under their inherent executive powers, they can make Safety Executive Orders, such as moratoriums for evictions and foreclosures. Also, every county and city has the ability to take public safety and welfare into account and make their own rules and regulations.
So you have to look at city-level, county-level and state-level administrative orders and executive orders to see if there’s anything that would prevent you from moving forward with an eviction. Look at the restrictions and how to comply with them. They could allow full-out evictions, or they could allow eviction notices or perhaps a delay of 30 days instead of a full-on moratorium.
It just depends. Seeking an experienced division, landlord, and tenant attorney would probably be the best place to start.
Can you explain a little more about the various eviction options? When people think of evictions, they often go straight to the image of a sheriff removing a tenant from a property.
Again, every state is different. At least in Florida, there’s usually time requirements landlords and property owners must follow. If it’s a lease eviction for default on the payment, that’s a three-day notice. Now, if it’s a default on the lease for something else, like too many occupants, that extends the notice deadline from three days to maybe to 14.
So once the notice requirements are done, you post a notice that they’re going to be evicted, then you have to file an action in the local county courthouse, after which everybody gets served. That could take typically about five days. At that point, if nobody responds to the complaint itself, you can file a motion for judicial default and writ of possession.
At that point, the clerk will send the writ to the local Sheriff’s Department [and] the department will contact the plaintiff and coordinate and schedule the eviction process. So, in Florida at least, an eviction typically takes between 30 and 45 days, assuming there are no state, local or federal moratoriums in place that would make judges uncomfortable moving forward.
But I should say, though, that there are several different types of evictions. So, residential evictions for tenants is one thing, but squatters are another issue. At that point, you would not do an eviction, you would file an unlawful detainer, which is a completely different cause of action. So if you have a squatter, which is someone you don’t have a lease contract with, that should be a much more quick process.
So depending on whether it’s residential, whether it’s commercial, and whether or not it’s actually a tenant with a lease makes a big difference with what type of action you want and whether or not the moratoriums apply to your eviction.
That makes sense. So, going back to the DOJ. I know you don’t have a crystal ball and can’t predict exactly what will happen. But, what’s your best guess about when the DOJ will file the appeal? How would that appeal complicate the process for landlords and property owners who want to begin eviction proceedings?
No orders are filed until obviously, you exhaust all your appellate remedies, and as a landlord and as an attorney giving advice to landlords, we have to take into consideration that the DOJ is likely going to immediately appeal. That process can take anywhere between 30 to 60 days to be heard. If the rehearing is denied and the Supreme Court decides to take the issue itself and review it, that could take even up to a year or more.
In that time period, the CDC or the DOJ might seek an injunction to maintain the status quo until [Judge Friedrich’s] ruling is heard. Or the alternative could say that, you know, until [Judge Friedrich’s] ruling is found to unlawful, we won’t hold injunction on the moratorium and allow for evictions to proceed.
The ironic part is, by the time it gets to the Supreme Court, we might already be out of the pandemic, which is the whole basis of the moratorium and of itself.
So I understand it’s extremely frustrating for landlords and it’s certainly frustrating for attorneys. But the federal relief landlords recently obtained should be enough for them to feel comfortable and not risk breaking any federal regulations.
So it seems that landlords and property owners are in legal limbo right now. For those who aren’t beholden to city or state eviction moratoriums, how can they weigh the risks of starting eviction proceedings before this all shakes out in court?
The wait-and-see approach is always something that you can do. Unfortunately for landlords, time is money. I think if you were to file your action now, I think you’d have every legal right to do so, at least based on [Judge Friedrich’s] federal ruling, assuming that it’s applied on a nationwide level.
Then, you just have to understand the risk financially, that halfway through your eviction case, there might be a hold on it. It’s really a business decision the landlord has to make as to whether or not you know, the immediacy of the eviction is something they need.
Regarding relief, there have been several stimulus packages and relief bills passed over the past year to help renters and landlords. What relief do landlords have available to them and how can they access it?
Under the CARES Act and the latest stimulus package, there are millions, if not billions of dollars of relief for both renters and those with tenancy issues. That comes in the form of mainly local and county-specific allocation of those funds, assuming that their local governments are creating the programs and the applications to access those funds. Whether or not that’s actually happening on a county-level or on a local level remains to be seen.
Landlords and property owners really seem to be the forgotten ones throughout the moratorium, and that’s both on the foreclosure side and the eviction side. You know, I’ve seen a lot of reports on the demand for housing and the increase in real estate prices. Some are saying is derived from a lumber shortage and other factors, when in reality, ongoing foreclosure and eviction moratoriums have a big part to play.
As far as the relief for the tenants and the homeowners, it’s all there, but for the landlords and owners, it’s a harder road to access state and local help.
