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The Eviction Cloud Over the Sunshine State

By Garry Louima

In a year of political upheaval, job loss, and infectious disease, the looming fear of mass evictions still remains. The monthly renewals of the state’s stay-on-evictions order by Governor DeSantis had been staving off the thousands of impeding evictions and foreclosure actions in Florida. However, Governor DeSantis allowed the state’s eviction and foreclosure relief to expire at the end of September 2020, in order to defer to the Center of Disease Control (“CDC”) Temporary Halt In Residential Evictions To Prevent The Further Spread Of Covid-19 (“CDC Order”), despite the fact that it does not provide foreclosure protection.

Although the stay-on-evictions, and now the CDC’s Order, have provided protections for tenants, the same degree of protections and considerations have not been afforded to landlords. Some landlords qualified for SBA funds through the Paycheck Protection Program and/or the Economic Injury Disaster Loan, or were fortunate enough to receive relief from their mortgage provider through the CARES Act. There are programs around the state such as the Covid-19 Eviction Diversion Program[1] in Orange County, FL, which pays rent to landlords for qualifying tenants. However, the forms of relief provided are not long-term solutions.

Landlords, property owners, and organizations have banded together around the country to challenge the constitutionality of the CDC’s Order, asserting that it violates the Administrative Procedure Act, limits plaintiffs’ right of access to courts, infringes on powers reserved for the states granted by the Tenth Amendment, among other claims. See Richard Lee Brown et al. v. Alex Azar et al., C.A. 1:20-CV-3702-WMR, filed 09/18/20 (Ga. N. Dist.). The CDC maintains the Order is not a rule under the Administrative Procedure Act, but an emergency action made under the authority of 42 C.F.R. 70.2, which allows the CDC Director to take “measures to prevent the spread of diseases as he/she deems reasonably necessary…”. Unless extended, the CDC’s Order is set to expire on December 31, 2020, thus possibly postponing mass evictions until 2021 .

The complaint in Brown calls into question the emergency powers of federal governmental agencies, but fails to take into account Building & Loan Association v. Blaisdell, 290 U.S. 398, 425 (1934), which states “[e]mergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.” Blaisdell was decided during the Great Depression, when Minnesota mortgagers were able to alter their mortgage payment schedule in state courts through the Minnesota Mortgage Moratorium Act (“MMMA”) because of the high rate of foreclosures. The Plaintiffs in Brown also ignore the Blaisdell holding that “[w]hile emergency does not create power, emergency may furnish the occasion for the exercise of power.” Id. at 426. The opinion in Blaisdell upheld the MMMA, as there was an existence of an economic emergency; action was taken for the “protection of a basic interest of society;” the relief given is appropriate to the emergency and given upon reasonable conditions; the relief from the contractual obligation was reasonable; and the legislation was temporary. Id. at 444-448.

The reasoning in Blaisdell seems to align closely with our current circumstances with the Covid-19; however, Blaisdell upholds the police power of the states. Even if the plaintiffs in Brown prevail, states can intervene to impose moratoriums again with reliance on Blaisdell or an act of Congress could produce legislation to provide a more holistic solution, such as providing funds to cover rent owed by tenants or giving landlords the option to restructure mortgage payments.

Experts estimate 30 to 40 million people around the country are at risk of being evicted once restrictions are lifted. There are thousands of cases filed in county courts throughout Florida, with 818,000 to 1,110,000 people at risk for eviction in the state. [2] Mass evictions would most likely have a severe impact on the real estate market in Florida, as well as the societal impact of a significant rise in the homeless population in a very short period of time. Provisions in the Order allow landlords to charge late fees, interest, and full payment of rent owed. However, even if landlords are successful in their eviction actions when moratoriums are lifted, it could take a great deal of time to recoup the rents owed by tenants, as it is very likely tenants simply may not have the money. This could leave some landlords in a peculiar situation as they regain possession of their property, with no means of compensation for the months their tenants did not pay rent, in addition to the uncertainty of obtaining new tenants.

As the mass eviction cloud looming over Florida gets darker, landlords and tenants should follow cases like Brown, Congress, and any action from the state to prepare for the flood…if it comes.

[1] The Orange County COVID-19 Eviction Diversion Program was created by the County Board of County Commissioners, which is in partnership with the Orange County Bar Association, Community Legal Services of Mid-Florida and other local legal assistance nonprofit agencies. https://www.orangecountyfl.net/economicdevelopment/orangecares/covid19evictiondiversionprogram.aspx#.X6-kYchKjIU

[2] Statistics provided by the Aspen Institute Financial Security Program; Emily Benfer et al., The COVID-19 Eviction Crisis: an Estimated 30-40 Million People in America Are at Risk The Aspen Institute (2020), https://www.aspeninstitute.org/blog-posts/the-covid-19-eviction-crisis-an-estimated-30-40-million-people-in-america-are-at-risk/ (last visited Nov 9, 2020).

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