Jaime Cain, a real estate attorney in Rochester, New York, nabbed one of the first court dates for a pre-Covid eviction as trials slowly picked up after a months-long shutdown.
But just two days before the scheduled conference, the federal government may have dashed those plans. “Is it still happening? Is it canceled? I don’t know,” Cain said of her day in court.
Washington’s new eviction ban shocked landlords and tenants when it came not from the agencies that oversee housing or fiscal policy — but from the Centers for Disease Control. Tenants say it leaves too many out, while landlords warn it will push property owners over the precipice.
The order also surprised many inside and outside of the real estate industry because of its relatively broad applicability. Previous federal eviction bans were limited to only properties with federally backed mortgages, but the new order applies to all residential properties.
The mandate leaves a lot of unanswered questions about local eviction bans, which can still remain in place if they are stricter than the federal ban. Some legal practitioners are now wondering if New York’s recently signed law allowing money judgments instead of evictions for nonpayment of rent will be voided by the new federal ban.
“You’re leaving the most crucial industry except food out in the cold,“ said Cain. “And what if New York passes more restrictive laws?”
Several laws to cancel rent, provide rental vouchers, and extend the eviction moratorium indefinitely have been proposed in New York, but have not yet passed the state legislature.
The cost of not adhering to the new federal eviction order is steep. Despite the confusing barrage of state eviction bans, court guidance, and now the CDC-mandated federal eviction ban, those who violate the newest order could face steep penalties of up to $250,000 for individuals and $500,000 for organizations.
Joseph Strasburg, president of the Rent Stabilization Association, called the federal move “a scheme that addresses one group at the expense of another.”
“Tenants who haven’t had the rent money for five months are not going to come up with nine months of rent in December,” he said.
Tenant advocates aren’t happy with the eviction moratorium, either.
The new order does not prevent evictions that are not related to non-payment, and it does not prevent non-renewal of leases. That can amount to an unofficial eviction notice for many renters, especially unregulated tenants who are not guaranteed a lease renewal, or are on informal month-to-month leases.
Evictions for non-renewal could be carried out for tens of thousands of tenants in New York, said Ellen Davidson, a staff attorney at the Legal Aid Society. While the order blocks many evictions until Dec. 31, Davidson said that an end-of-year expiration date could make things worse, since Congress is not in session in the winter months and will not be available to act further.
“What exactly do you think is going to happen January 1? It can’t be that as of January 2, everyone gets evicted,” Davidson said. “And what happens to rent in the meantime?”
The Right to Counsel Coalition — which pushed New York City to provide free representation for tenants in housing court — called the federal mandate a “moral failure.” The group criticized the order in part because it only lasts until Dec. 31, and said it does not expect new eviction cases to move forward before then.
At the same time, the federal ban on evictions could spur landlords to seek alternatives to filing evictions in housing court. That includes ejectment actions filed in state supreme court for cases that don’t involve non-payment of rent.
Some attorneys say the order from Washington may also lead to a proliferation of evictions for violations of lease terms.
“As a practical matter, you might see desperate landlords bring more holdover evictions,” said Cain. “The New York version of this moratorium was much more pragmatic.”