Going, Going, Gone: Takings Clause Challenges to the Cdc's Eviction Moratorium

• Publication year: 2021

Going, Going, Gone: Takings Clause Challenges to the CDC's Eviction Moratorium

Meredith Bradshaw
University of Georgia School of Law, mab90484@uga.edu

Going, Going, Gone: Takings Clause Challenges to the CDC's Eviction Moratorium

Cover Page Footnote
* J.D. Candidate, 2022, University of Georgia School of Law; B.A. 2017, Vanderbilt University. I would like to thank Professor Randy Beck and Professor Jean Mangan for their insight and guidance on this Note. I would also like to thank my parents, Robert and Amy Bradshaw, for their continual support of my academic endeavors.

GOING, GOING, GONE: TAKINGS CLAUSE CHALLENGES TO THE CDC'S EVICTION MORATORIUM

Meredith Bradshaw^*

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In September 2020, in response to the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services issued a residential eviction moratorium to prevent the further spread of COVID-19. One year later, the U.S. Supreme Court terminated the moratorium. During the year that the moratorium was in effect, landlords across the country filed lawsuits against the CDC because they were unable to evict tenants who did not satisfy their rental obligations. Because the moratorium allowed tenants to remain on the property without paying rent, some landlords argued that the regulation effected an unconstitutional taking under the Fifth Amendment. This Note evaluates arguments that landlords could still raise under the Fifth Amendment Takings Clause and concludes that landlords will not be able to prevail with takings claims to challenge the moratorium based on current takings jurisprudence.

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Table of Contents

I. Introduction....................................................................459

II. Background....................................................................463

A. THE COVID-19 PANDEMIC...............................................463
B. INITIAL STATE, LEGISLATIVE, AND EXECUTIVE MEASURES TO ADDRESS THE RISK OF MASS EVICTIONS....................465
C. THE CDC'S EVICTION MORATORIUM................................468

III. Takings Clause Jurisprudence & The CDC's Moratorium.........................................................................474

A. PHYSICAL TAKINGS: THE MORATORIUM WAS NOT A GOVERNMENT OCCUPATION OF PROPERTY.......................476
B. REGULATORY TAKINGS...................................................481

1. Categorical Regulatory Takings: The Moratorium Did Not Deny Landlords of All Economically Viable Use.........................................................................482
2. Noncategorical Regulatory Takings: The Penn Central Analysis Would Not Provide Takings Relief for Landlords ........................................................ 484

IV. Conclusion....................................................................493

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I. Introduction

For seven consecutive years, a mother renewed her lease at the same suburban Atlanta apartment complex.¹ To make her rental payments, which consumed half of her income, she worked two jobs while she finished her teaching degree.² Despite annual rent increases, the cost was worth it; as a single mother, she wanted her two children to be comfortable and safe.³ But when she lost her jobs at the onset of the COVID-19 pandemic, she fell behind on her rent, and the specter of eviction loomed over her family as her landlord added fees to the unpaid back rent.⁴ With no family in the Atlanta area, she would either become homeless or she would have to move back in with her family in Illinois.⁵

This story is not unique. The pandemic's major economic impacts caused many people to lose their jobs, making it harder for renters—especially low-income renters—to make timely rental payments.⁶ By August 2021, more than fifteen million people in the United States were behind on rental payments, putting them at risk of eviction.⁷

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Evictions are lose-lose situations for both landlords and tenants: tenants lose their homes, and landlords may not earn the money they anticipated from the rental terms agreed to under the lease agreement.⁸ Still, evictions are an important tool for landlords because they gain the opportunity to rent the property to someone else. Landlords may lose some rent from an initial tenant at the time of eviction, but they can potentially mitigate that loss by gaining a new, paying tenant.⁹ Unsurprisingly, when Congress, state governments, and the Centers for Disease Control and Prevention (CDC) issued temporary residential eviction moratoria, citing public health concerns as the reason for their necessity,¹⁰ many landlords were angry because these moratoria prevented them from evicting tenants who could not make rent payments.¹¹

Despite the public health reasons behind the CDC's moratorium (the Moratorium), the CDC's order issuing the Moratorium (the Order) left many questions unresolved for landlords and tenants alike. The Order did not relieve tenants of their obligation to pay

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rent,¹² so once the Moratorium expired in August 2021, the Order bound tenants to pay all accrued back rent.¹³ However, over seven million renters were behind on rent as of July 2021,¹⁴ and over four million renters had "no confidence" in their ability to make the next month's rental payment,¹⁵ raising questions as to whether landlords will actually receive the accrued back rent. The absence of a few months' rental income could pose further problems for landlords—especially small "mom-and-pop landlords"—who find it increasingly hard to repair their rental properties and pay their mortgages without rental income.¹⁶ The Moratorium effectively shifted the

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costs and responsibilities to maintain the property onto the landlords while renters were temporarily alleviated of the responsibility to pay rent.¹⁷ Under ordinary circumstances, landlords would be able to evict tenants who failed to meet their rental agreement obligations, but the CDC's Moratorium placed a temporary halt on all residential eviction proceedings.¹⁸ Unable to resort to eviction proceedings, some landlords turned to litigation to challenge the validity of the Moratorium and to receive injunctive relief from the courts.¹⁹

While the Moratorium posed a number of legal questions that resulted in a flurry of litigation,²⁰ this Note will evaluate only arguments that landlords could raise to challenge the Moratorium under the Takings Clause of the Fifth Amendment. Because the Takings Clause provides that the federal government shall not take property without just compensation,²¹ landlords may argue that the government, through the Moratorium, "took" their property by permitting tenants to remain on the property without paying rent. This Note relies on current Takings Clause jurisprudence and failed eviction moratoria claims in lower courts to explain why landlords likely cannot successfully challenge the Moratorium under the Takings Clause.

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Part II briefly describes the COVID-19 pandemic context relevant to this Note and then examines governmental efforts to prevent evictions during the pandemic, including both the CDC's Moratorium and challenges to state moratoria that provide important parallels to a potential federal Moratorium takings challenge. Part III evaluates Takings Clause jurisprudence to determine whether the Moratorium constituted a taking under the Fifth Amendment. Part IV concludes that landlords likely will not prevail on Takings Clause claims, pursuant to current takings jurisprudence and caselaw concerning state moratoria.

II. Background

A. THE COVID-19 PANDEMIC

Many will undoubtedly remember the year 2020 as the beginning of the COVID-19 pandemic in the United States.²² Even as people adjusted to new health precautions like wearing masks and social distancing to curb the COVID-19 virus's spread, the virus continued to ravage the country.²³ Nationwide vaccination efforts in early 2021 helped decrease the number of COVID-19-related cases and deaths.²⁴ At the end of summer 2021, however, the Delta variant ran rampant through the country, negatively affecting

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unvaccinated populations in particular.²⁵ By fall 2021, the United States had experienced over forty million COVID-19 infections²⁶ and 700,000 COVID-19-related deaths.²⁷

The pandemic fundamentally altered many aspects of life across the country, particularly jobs.²⁸ Many people transitioned to working remotely, relying on new video technologies to stay virtually connected to other professionals.²⁹ People in fields that could not be moved to an online platform, however, especially in service industries, suffered from the reduced activity.³⁰ Consequently, as those businesses shuttered, many workers lost

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their jobs.³¹ Without this income, renters were placed in a difficult position: pay their rent or risk eviction.

B. INITIAL STATE, LEGISLATIVE, AND EXECUTIVE MEASURES TO ADDRESS THE RISK OF MASS EVICTIONS

Many states recognized the impending risk of mass evictions at the outset of the COVID-19 pandemic because significant job losses would result in many people not being able to make their monthly rental payments.³² In response, some states issued moratoria on residential evictions in an effort to reduce the number of residents who could become homeless.³³ But eviction moratoria lacked uniformity across states that implemented them.³⁴ The stringency of moratorium provisions varied by state, and most measures expired at the end of summer 2020.³⁵ As a result, tenants who no longer (or never) had protection under state moratoria could only apply for eviction protection under the federal Moratorium.³⁶

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In response to state moratoria, various groups of landlords filed federal lawsuits to challenge their states' measures.³⁷ For example, in Baptiste v. Kennealy³⁸ the U.S. District Court for the District of Massachusetts found that the state's residential rental moratorium enacted in response to the COVID-19 pandemic...