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The Centers for Disease Control and Prevention Issues New Eviction Moratorium in Wake of Surging Covid Cases

UPDATE: On August 26, 2021, the Supreme Court lifted the stay and evictions that were previously prohibited by the CDC Eviction Moratorium may resume, unless otherwise prohibited by state and local law.  https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf

Effective August 3, 2021, the Centers for Disease Control and Prevention (“CDC”) issued a new order (“Order”) placing a moratorium on residential evictions. The Order is targeted only to those U.S. counties experiencing high or substantial community transmission, which in Oregon (as of the date of this blog post) includes every county except for Grant.  This CDC map shows the community transmission levels in each U.S. county. The Order expires on October 3, 2021.

Where the Order applies, the restrictions are very similar to the restrictions imposed under the old CDC eviction moratorium. A landlord may not evict a covered residential tenant, while COVID-19 transmission in that county remains substantial or high, and while the relevant state or county has not provided a level of protections above those provided in the Order. A covered person is anyone who submits a declaration to their landlord that states: that the person has made best efforts to obtain government assistance, the person made no more $99,000 in 2020 (198,000 if filing a joint tax return), and the person is unable to pay full rent due to a loss of income or health expenses. A form of declaration is available on the CDC’s website.

Because the Order is targeted, it will stop applying in counties whose transmission rates drop below the community transmission thresholds established by the CDC. When community transmission rates drop below substantial levels for 14 consecutive days, the Order will cease to apply. The Order will apply immediately to counties whose community transmission rate increases to substantial or high after the Order’s August 3, 2021, effective date.

The Order is at risk of being overturned by the Supreme Court. In June 2021, the court ruled 5-4 in Alabama Association of Realtors v. Department of Health and Human Services to leave the old CDC order in place. Justice Kavanaugh joined the majority but wrote separately to say that he believed the old CDC order exceeded the CDC’s authority. Justice Kavanaugh’s concurrence explained that he only voted to uphold the original order because it was set to expire in a few weeks. He also noted that Congress would need to pass legislation to support extension of the old order past July 31, 2021. Justice Kavanaugh’s concurrence signals that if the Order were to come up before the Court, he would vote with Justices Barrett, Gorsuch, Alito, and Thomas to overturn the order. The Alabama and Georgia Chapters of the National Association of Realtors have already filed suit to overturn the Order.

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