The Centers for Disease Control (CDC) is facing all sorts of lawsuits regarding its eviction ban. Even President Biden says the eviction moratorium isn't likely to "pass constitutional muster," adding "but … it's worth the effort" to try anyway.
That brings us to the latest lawsuit, filed July 27 by the National Apartment Association (NAA). It seeks to recover damages suffered by rental property owners under the CDC's likely unconstitutional federal eviction moratorium, which in effect regulates what property owners, in this case landlords, can and cannot do with their own private property.
The NAA lawsuit
Other lawsuits have been filed from groups like landlords, trade associations, and property owners. But this one by the NAA is the first one that seeks compensation for landlords.
The NAA figures landlords have been left with $26.6 billion in debt (and climbing) even after factoring in the $47 billion allocated in rental assistance funds (that are not even being properly doled out -- see next section) after operating under unprecedented conditions.
Arguments the NAA is making against the eviction moratorium are that this policy "jeopardizes the long-term viability of housing infrastructure and sets a dangerous precedent for future disaster-response measures." The NAA wants to ensure the commandeering of property by the government doesn't happen again.
The Fifth Amendment and property rights
What most people know about the Fifth Amendment comes from the phrase "taking the FIfth," meaning the Constitution guarantees a person the "right to remain silent" and not incriminate themselves.
But there are more clauses packed into this constitutional amendment. One is called the "Takings Clause," which reads, "Nor shall private property be taken for public use, without just compensation."
"Taking" refers to the government physically taking property, or it could be a regulatory taking where the government restricts an owner's rights so much it's equivalent to a physical taking.
The Takings Clause is in the Fifth Amendment with the intent that individuals (in this case, landlords) should not be singled out to bear excessive burdens, even if it's for the public good.
Federal money is difficult to get
It's true that tenants and landlords (on behalf of tenants) can apply for federal relief if renters can't pay their rent due to job loss from the pandemic. Congress authorized $47 billion in aid to renters, but as of August, almost a year after the CDC's ruling on eviction moratoriums went into effect, only $3 billion has been dispersed.
Where is the money going? Are states holding on to it? Whatever the reason, getting relief funds is difficult if not impossible for the people it's intended for. On a personal note, I tried as a landlord on behalf of a tenant and struck out every time. Here was my experience.
The Millionacres bottom line
The lawsuit by the NAA is open to all rental housing providers, so if you're a building or property owner, it would be in your best interest to join the lawsuit. You can do so here.
Keeping people off the streets during a pandemic is a public health goal, of which the CDC can and should control. But making landlords pay the tab has made life difficult for them. Not closing down businesses in the first place may have been a wiser decision.