July 15, 2020 |
Updated July 31, 2020
Around the country, rental housing providers (and in some cases, apartment associations on behalf of their members) are filing lawsuits asking for relief from eviction moratoria. These mandates prevent rental housing providers from compelling their residents to fulfill their rental payment obligations and, importantly, severely restrict providers’ access to eviction courts in light of the COVID-19 emergency. As the crisis persists and policymakers extend these protections, causing great harm to the industry, NAA expects these cases to increase exponentially. Unfortunately, early signs show these cases have not yielded much success as courts give deference to government officials’ broad emergency powers.
Litigation has already been filed in 13 federal and state courts: Arizona; California; Connecticut; Illinois; Kentucky; Los Angeles, Calif.; Massachusetts; New York; Orange County, Calif.; Pennsylvania; San Francisco, Calif.; Texas; and Union City, N.J. The vast majority of the cases scrutinize state or local executive orders or laws that temporarily suspend evictions and, in some cases, seek to strike down other overreaching renter protection provisions. However, in Texas, two Texas-based rental housing owners are challenging the CARES Act’s federal eviction ban. In this case, filed in the U.S. District Court for the Northern District of Texas, the plaintiffs allege the CARES Act eviction moratorium is unconstitutional under both the U.S. and Texas Constitutions.
In these lawsuits, plaintiffs most often seek declaratory and injunctive relief and commonly argue that eviction moratoria:
- Constitute as an improper taking without just compensation (Violation of the Takings Clause of the Fifth Amendment);
- Harm housing providers’ rights against impairment of contracts (Violation of the Contracts Clause of the U. S. Constitution);
- Interfere with their rights to equal protection (Violation of the Equal Protection Clause of the Fourteenth Amendment) and due process (Violation of the Due Process Clause of the Fourteenth Amendment); and
- Violate similar state constitutional protections.
In additional to the above arguments, some plaintiffs are leaning on separation of powers arguments. In California, rental housing providers are challenging the Judicial Council’s injurious Emergency Rule 1, asserting that the state constitution’s separation of powers prevents government agencies like the Judicial Council from overriding the legislature and governor to take the law into its own hands. Emergency Rule 1 suspends all eviction cases unless the court finds there is a health and safety reason and prevents entry of default or default judgments in unlawful detainer cases, unless the court finds there is a health and safety reason and the defendant has not appeared. It remains in effect until 90 days after the Governor declares that the related state of emergency is lifted, or until amended or repealed by the Judicial Council.
In addition to the 13 cases that have already been filed, several more potential plaintiffs are seriously evaluating their legal options as proponents attempt further extensions of eviction bans or to codify these substantial temporary renter protections into law. NAA continues to support the affiliate network and its members as they decide the best path forward. Please submit any applicable legal documents (i.e. complaints or additional information) or questions to Nicole Upano, NAA’s Director of Public Policy. Any information you can provide helps us analyze these cases and understand the latest state of play.