SCOTUS Says Eviction Bans Trespass on Fundamental Element of Real Estate Ownership | Nossaman LLP

The United States Supreme Court ruled last week that the Centers for Disease Control and Prevention (CDC) had exceeded its powers by imposing a national moratorium on evictions. More precisely, in Alabama Association of Realtors v. Ministry of Health and Social Services, the court accepted a district court ruling that the CDC acted illegally by prohibiting evictions of residential tenants who say they need financial assistance in counties with high COVID-19 rates. In its ruling, the Supreme Court concluded: “If a moratorium on evictions imposed by the federal government is to continue, Congress must specifically authorize it. Although the ruling is based on the authority of the CDC, it is filled with unconstitutional innuendos.

Even if Congress allowed a new moratorium on evictions, the Supreme Court could still find it unconstitutional. In the Alabama Real Estate Association decision, the Court found the moratorium unfair because “to prevent [landlords] evicting tenants who violate their leases infringes on one of the most basic elements of real estate ownership: the right to exclude. In support of this assertion, the Court cited its famous 1982 decision in Lorette that requiring landlords to allow the installation of cable television equipment on their property was an unconstitutional decision. The Court also underlined the importance of the right to exclude in its decision of June 2021 Cedar Point Nursery decision made, in which it overturned a California regulation allowing labor organizations to access the property of agricultural employers for up to three hours a day, 120 days a year. In summary, the court ruled that violations of the “fundamental right to exclude” are unconstitutional levies, and in its recent ruling, the court declared that the right to exclude tenants who break their leases is also fundamental. While this decision is primarily based on the CDC’s lack of authority to impose a moratorium on evictions, the court left the door wide open to claims by owners that eviction bans unconstitutionally violate their fundamental right to ‘evict or exclude non-paying tenants.

It is unclear whether the Supreme Court will rule on another deportation moratorium case. Landowners and property management companies have sued the state of California, local cities and other public entities to overturn eviction bans, citing the strike clause among other arguments. However, moratoria in California and many other states and cities are expected to expire this month. Thus, they can end before the proceedings against them reach the Supreme Court. On the flip side, New York State just extended its moratorium on evictions until January 2022. We’ll wait and see – and report here – whether the Supreme Court rules on whether the bans on deportation violate the withholding clause.

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