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Landlord files lawsuit against CDC eviction moratorium

The plaintiff is a landlord who argues that the order is an “affront to core constitutional limits on federal power.”

A landlord filed a legal challenge this week to the Centers for Disease Control and Prevention’s sweeping order suspending evictions nationwide, arguing that it was an “affront to core constitutional limits on federal power” that stripped him of his rights to access the courts.

The filing is the first direct legal challenge to an order that many expected would bring a slew of suits from landlords who have been deprived of rental income for months as the coronavirus pandemic continues to drag on and leave many renters unemployed.

Richard Lee Brown owns a house in Winchester, Va., for which he pays $400 in monthly mortgage and tax payments and that he rents out, according to the complaint, which was filed Tuesday. His tenant has fallen behind on rent by more than $8,000 and she told him it was because of “economic stress arising from the COVID-19 pandemic,” the complaint says.

Related: CDC announces new federal eviction moratorium through end of year

Brown had tried to begin eviction proceedings in August, but was prevented by an order halting evictions by the Supreme Court of Virginia, the court documents state. Now, even though that order has expired, he is still unable to do so because of the Centers for Disease Control.

Because of the new order, Brown “suffers significant economic damages,” including his lost rent and the missed opportunity to lease out the property to a new tenant. The Center for Disease Control’s order does not cancel rent, but because his his tenant is unable to pay their debts, “Mr. Brown will not be able to obtain any economic relief or damages from the tenant once the CDC order expires at the end of December,” the documents state.

Despite Brown’s residence in Virginia, the case was filed in a federal court in Georgia, the state where the Centers for Disease Control is headquartered. That means that if the case is appealed, it would go to the 11th Circuit court that oversees three states including Florida. It also has two judges, Barbara Lagoa and Robert Luck, who were appointed by Florida Gov. Ron DeSantis to the state supreme court but then were quickly elevated by President Donald Trump to their current roles.

Brown’s case was taken on by the New Civil Liberties Alliance, a Washington-based organized whose mission is to “defend constitutional freedoms—primarily against the Administrative State,” according to its website.

The Centers for Disease Control did not immediately respond to an email requesting comment Friday, but in its original order, it laid out the case for why halting evictions was essential for public health, saying that forcing people to move in with loved ones or into homeless shelters would increase the spread of the coronavirus.

DeSantis' office has not responded to questions sent by email and text about whether the federal order supersedes the governor’s, but local housing lawyers have said they believe the Centers for Disease Control’s protections apply here.

Natalie Maxwell, the director of advocacy and litigation at Three Rivers Legal Services, which offers free representation to low-income residents in North Florida, said the lawsuit was expected given that there is still a need for more government financial assistance to renters, which is something both tenant and landlord groups have been requesting from Congress for months.

“While the eviction moratorium is a step in the right direction, the other part that’s needed is financial relief,” she said. “If (landlords) were receiving some portion of rent, not only would they have a moral incentive they’d also have a financial incentive to not contest the moratoriums.”

Eric Dunn, director of litigation for the National Housing Law Project, which advocates for tenants' rights, said based on past cases, the chances of this new lawsuit being successful are not high.

“All the way back to March there have been a number of moratoria on evictions entered by state governments, the CARES act, some cities have done their own, some done by courts, and there were a number of lawsuits challenging those and every single one ... resulted in the moratoria being upheld,” he said. “That could be one thing deterring (more) potential challenges.”

Dunn added that the Centers for Disease Control’s argument was particularly powerful in its order.

“The court is going to be weighing public interest against what the plaintiff is complaining about and it just seems like there’s no contest,” he said, noting that the Centers for Disease Control estimated there could be 30-40 million renters at risk. “With that many evictions you’d be wiping out entire neighborhoods, displacing entire communities.”

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