Supreme Court Strikes Down CDC Eviction Moratorium
Emergency Rental Assistance Available to Landlords and Tenants
September 21, 2021
When the CARES Act eviction moratorium expired without further action by Congress, the Centers for Disease Control issued an emergency order, “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (“CDC Order”), which was initially effective September 4, 2020 through December 31, 2020, stating, “[A] landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property. . . .” The CDC Order defined eviction as any action by a “person with a legal right to pursue . . . possessory action, to remove or cause the removal of a covered person from a residential property,” but specifically excluded foreclosure on a home mortgage. “Residential property” was defined as any property leased for residential purposes. In order to be a “covered person,” a resident had to provide a declaration, with the form provided in the order, that 1) they had made best efforts to obtain government assistance for rent or housing, 2) their income was below $99k, 3) they were unable to pay rent due to lost wages or extraordinary medical expenses, 4) they were making best efforts to make partial payments, and 5) eviction would likely render them homeless. The CDC Order penalized violators with criminal penalties of fines and/or jail time, with those increasing if the violation resulted in death.
The CDC Order was extended by Congress through January 31, 2021 in the Consolidated Appropriations Act, 2021. The CDC then extended the moratorium through March, then June, then through July 31, 2021.
Realtor associations and rental property managers in Alabama and Georgia sued to enjoin the CDC’s moratorium, and the U.S. District Court for the District of Columbia granted summary judgment for the plaintiffs, holding that the CDC lacked authority to impose the moratorium, but staying the order pending appeal. The D.C. Circuit agreed. The U.S. Supreme Court declined to vacate the stay, partly due to the fact that the moratorium was set to expire in a few weeks, allowing time for orderly distribution of congressionally appropriated rental assistance funds.
When the moratorium expired in July 2021, the CDC reimposed it, though the new version was more narrowly tailored to geographic areas with high rates of COVID-19. The plaintiffs returned to the District Court, D.C. Circuit, then finally the U.S. Supreme Court, again requesting the stay be vacated. The Supreme Court vacated the stay, ending the eviction moratorium as of August 26, 2021, holding that the CDC exceeded its authority in imposing the moratorium. The Court was particularly concerned with the equities and balancing the harms, finding that while the harm to landlords has increased, the government’s interest has decreased due to the distribution of rental assistance funds. The Court stated, “[O]ur system does not permit agencies to act unlawfully even in pursuit of desirable ends. . . . If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.”
Though Congress has not yet passed legislation to impose any further eviction moratoria, they did establish two Emergency Rental Assistance funds to assist households that are unable to pay rent or utilities. Under the Consolidated Appropriations Act, 2021, Congress appropriated $25 billion. Under the American Rescue Plan Act of 2021, Congress provided an additional $21.55 billion. The program is being administered statewide by Emergency Rental Assistance Alabama, and locally for Tuscaloosa County residents by Tuscaloosa County Emergency Rental Assistance Program (“TCERAP”). These programs are available to both landlords and tenants for a tenant’s primary residence, and cover the following costs:
- Past due, current, and up to 3 months of expected rent costs.
- Past due, current, and up to 3 months of expected utility and home energy costs.
- After the initial 3 months of forward assistance, you may apply for 3 additional months of assistance if funds are still available.
In order to qualify, a household must meet the following criteria:
- Combined income at or below 80% of the Area Median Income; AND
- One of more members of the household must attest in writing they have
- Qualified for unemployment benefits; OR
- Due to or during the pandemic they:
- Experienced a reduction in income; OR
- Incurred significant costs; OR
- Experienced financial hardship; AND
- One or more members of the household must demonstrate they:
- Are at risk of homelessness or housing instability by providing an eviction notice of past due utility or rent notice; OR
- Live in an unsafe or unhealthy housing conditions.
Landlords and qualifying tenants may apply online on the TCERAP website with the following required documentation:
- Government or current public school issued ID for at least one household member on the lease
- Copy of rent or lease agreement (or rent receipt)
- Notices of late rent payment or notice to evict, if applicable
- Copies of past due utility bills, if utility assistance is being requested
- Income documentation for all household members above the 18 years old or older (or head and/or co-head of household if all members are under 18) must be provided. 
- Government Issued ID (if individual); Corporate Resolution listing the individual or individuals authorized to execute documents (if incorporated entity);
- Rent or lease agreement (or rent receipt if no current agreement);
- If applying on behalf of a condominium, Authorized Representative proof
- Completed IRS Form W-9
- Household Certification Form (if not being provided by the tenant); and
- Household Income Documentation, as listed above (if not being provided by the tenant).
Landlords who apply on behalf of tenants must have the tenant sign the application. Payments will be made directly to the landlord unless the tenant applies directly and the landlord refuses to enroll.
 85 Fed. Reg. 55292 (2020)
Id. at 55293
Id. at 55296
 Pub. L. 116–260, §502, 134 Stat. 2078–2079
 86 Fed. Reg. 8020, 16731, 34010 (2021)
 Alabama Assn. of Realtors v. Department of Health and Human Servs., 2021 WL 1779282, *10 (May 5, 2021)
 Alabama Assn. of Realtors v. Department of Health and Human Servs., 2021 WL 2221646 (June 2, 2021)
 Alabama Assn. of Realtors v. Department of Health and Human Servs., 141 S.Ct. 2320 (June 29, 2021)
 86 Fed. Reg. 43244
 Alabama Assn. of Realtors v. Department of Health and Human Servs., 2021 WL 3783142, *4 (August 26, 2021). HUD, FHFA, USDA, and VA have an eviction moratorium for foreclosure-related evictions that expires September 30, 2021. See, e.g., HUD Mortgagee Letter 2021-19, https://www.hud.gov/sites/dfiles/OCHCO/documents/2021-19hsgml.pdf
Pub. L. 116–260, §502, 134 Stat. 2078–2079
 Pub. L. 117-2, §3201
 Income limits may be found here: https://www.tuscco.com/wp-content/uploads/2021/07/TuscaloosaCo-AMI.pdf
See https://www.tuscco.com/erap/ for acceptable income documentation.