by Kevin Hildebeidel, Esq.
Cohn, Goldberg & Deutsch, LLC
USFN Member (DC, MD)
There are two separate eviction moratoriums governing the District of Columbia,
one national and one local. Both have been challenged and, as of the date of
this article, both remain in effect. The District Court in Washington, D.C.
released a decision on May 5, 2021, in the case of Alabama Association of
Realtors et al. v. United States Dep’t of Health and Human Services, et al.
20-cv-3377 (DC DC 2021), in which it found the national eviction moratorium
issued by the Center for Disease Control unsupported in the applicable law. The
Court indicated it would vacate that moratorium. An appeal to the U.S. Court of
Appeals for the District of Columbia Circuit has been noted and an emergency
motion to stay the effect of the order was filed by the Department of Health
and Human Services. On May 14, 2021, that motion was granted.
A few days later the Realtors stated their intention to file an application
with the United States Supreme Court to vacate the stay. On June 2, 2021, the
stay was sustained by the D.C. Circuit Court. The Supreme Court matter remains
pending with a response to the application due by 5 P.M. June 10, 2021.
The local District of Columbia prohibition codified at D.C. Code § 16-1501(b) continues
to prohibit evictions during a public health emergency and for 60 days
following the end of the emergency. The emergency was recently extended for an
indefinite period of time, see May 17, 2021, Order 2021-069.
District of Columbia law is unclear on exactly when that will end although a
vote in mid-May indicated the emergency was extended to July 25.
The stated reasons for the extension were to continue to receive federal funds
and aid.
The local eviction prohibition in D.C. was directly challenged on Constitutional
grounds as was the 60-day period following the end of the emergency. The D.C. Superior
Court combined multiple challenges and held in December 2020 that there was no
rational connection and no rational purpose to prohibit evictions generally and
even less reason for the 60-day period after the end of the emergency. It
specifically noted the problem of tenants who commit non-monetary violations of
their lease or have been foreclosed or are simply squatters and found D.C.
failed to show proper cause for the denial of the Plaintiff landlords’ rights
or how the dramatic relief would result in any net public benefit (although the
Court did not reach the Constitutional taking issue).
Accordingly, D.C. Code § 16-1501(b) was held unenforceable. Although initially
favorable for landlords and lenders, those cases have been appealed and,
partially at the urging of local legal aid providers,
an administrative stay has been entered pending that appeal, so the law remains
in effect at this time.
The D.C. City Council appears to be proceeding as if their ban will be
sustained, recently passing a measure which would allow very limited evictions
to proceed against persons who pose a physical risk to their neighbors. That
bill is currently with the mayor for review and no other evictions were
permitted. There remains a substantial likelihood that the council, Office of
Attorney General and other enforcement agencies in the District will take the
position that D.C. law is broken by filing any other eviction proceedings until
60 days following the end of the emergency.
It should also be noted that federal GSE moratoriums may still apply to
owner-occupied residential property.
All of the foregoing factors should be considered and reviewed before deciding when
to pursue evictions in the District of Columbia. Since this is a rapidly evolving situation,
consultation with knowledgeable counsel is recommended before action.
Copyright © 2021 USFN. All rights reserved.
June 2021 e-Update
[1] The trial judge found DHHS had little chance of success on the merit but appears to have been swayed by the risk of irreparable harm if the stay was not granted.
[2] See S, Ct. Case 21-5093 docket here https://www.supremecourt.gov/docket/docketfiles/html/public/20a169.html (last accessed 6/9/21).
[3] “… the public emergency and public health emergencies first declared on March 11, 2020 by Mayor’s Orders 2020-045 and 2020-046 are extended for so long as District of Columbia law extends the emergency.” (last accessed June 9, 2021).
[4] https://dccouncil.us/council-passes-comprehensive-plan-allows-mayor-to-extend-public-health-emergency/
[5] See decision in the consolidated cases here https://www.dccourts.gov/sites/default/files/matters-docs/General%20Order%20pdf/order-re-filing-moratorium-for-eviction-cases-12-16-20.pdf.
[6] https://www.legalaiddc.org/wp-content/uploads/2021/02/Amici-Curiae-Filing-in-Support-of-Districts-Motion-for-Stay.pdf
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