Real Estate Can The United States Federal Government Prevent Landlords From Pursuing Residential Eviction Actions

Dated: March 31, 2021

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Cuevas, Garcia & Torres, P.A.

Vantage Property Title Company

Andrew Cuevas, Esq. – President
E-mail: [email protected]

Tel: (305) 461-9500/(407) 992-2251
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Mr. Andrew Cuevas, Esq., is the President of Cuevas, Garcia & Torres, P.A., and Vantage Property Title Company. Cuevas, Garcia & Torres, P.A., provides legal services in the areas of Community Association Law, Corporate Law, Real Estate law, and Business Immigration, including title insurance services through Vantage Property Title Company. If you have any questions regarding this article or any other questions, you may contact Mr. Cuevas at (407) 992-2251 / (305) 461-9500 or via e-mail at [email protected]. If you are interested in reading previous newsletters, please visit, select the icon for Newsletters, and then choose the area of law you are interested in.

As many know, the COVID-19 worldwide pandemic has led to a series of restrictions imposed on citizens including obligations to wear masks, social distancing, and closures of restaurants and gyms. Some restrictions have even affected citizen rights to gather in their preferred places of worship.  Included in government imposed restrictions has been a series of moratoriums established by some local municipalities, as well as the Federal government (affecting the entire country), on certain types of residential evictions.  This article will not address the political, social, or economic impact of the various COVID-10 related restrictions since those are very “dangerous” topics to address in today’s atmosphere of “social intolerance toward opposing opinions”.  Instead this article will solely address whether or not the Federal Government has a constitutional right to impose residential eviction moratoriums, effectively “trumping” State authority (no pun intended) under the guise of enforcing Centers for Disease Control and Prevention (“CDC”) recommendations.  The State of Texas took up this issue in the matter of Tenkel v. Centers for Disease Control and Prevention, No. 6:20-cv-00564, United States District Court for the Eastern District of Texas (decision dated February 25, 2021).  For those of you who are familiar with issues of State sovereign rights versus Federal government infringement on State rights and protections of citizens, you can imagine how the court in Texas ruled.

In September 2020, the Centers for Disease Control and Prevention, a component of the U.S. Department of Health and Human Services, issued the agency order challenged here.  Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020).  The order was originally set to expire on December 31, 2020.  Federal legislation then extended the order’s expiration date to January 31, 2021.  A subsequent agency order further ex-tended the eviction moratorium, with minor modifications and additional findings, to be effective through the end of March 2021.

In the Tenkel case, the Texas District Court addressed the question of whether the federal government (as opposed to the state government) has the right to restrict certain property owners from evicting certain categories of tenants.  The Federal government argued that pursuant to Article I of the U.S. Constitution (which provides Federal government’s authority to regulate interstate commerce) the Federal government has a right to establish moratoriums on residential eviction matters.  The Plaintiffs who are residential landlords argued that the federal government argument was unconstitutional and that the decision to enact eviction moratoriums should only be a State-level decision.

The Texas court in Tenkel analyzed historical treatment of similar situations.  For example, during the Great Depression, 27 States enacted foreclosure moratoriums and other laws meant to mitigate the effects of a wave of foreclosures [however there was no similar Federal laws enacted].  The Tenkel court also mentioned that no such Federally mandated moratoriums were established during the Spanish Flu pandemic.  What the Tenkel court followed was previous U.S. Supreme Court decisions recognizing that the control which the state retains over remedial processes [such as residential evictions] is part of the State’s “police power and an exercise of the sovereign rights of the [State] government to protect the lives, health, morals, comfort, and general welfare of the people.”  The Texas court in Tenkel went on to cite U.S. Supreme Court rulings that the Federal Government has no such policing power established in the U.S. Constitution.

Here, the regulated activity is not the production or use of a commodity that is traded in an interstate market.  Rather, the challenged order regulates property rights in buildings, specifically, whether an owner may regain possession of property from an inhabitant.  Residential buildings do not cross State lines.

The Texas District Court in Tenkel therefore rejected the federal government’s imposed moratorium and allowed the State of Texas to proceed with evictions if the State law so allows, i.e., the State can determine if it wanted to impose a moratorium on evictions but the Federal government cannot.  This is an important decision as it reflects an example of Federal government overreach into State sovereign rights, as well as the Federal Government’s creative interpretation of the U.S. Constitution to justify its actions.

There are many commercial and residential landlords who are being financially destroyed by tenants not paying their rents, even in many circumstances where the tenant clearly has the financial means to pay the rent.  In Miami-Dade County, Florida, there are a series of pending State court actions which are having positive results for landlords by requiring local municipalities to instruct local Sheriff Departments to proceed with the enforcement Writs of Possession to force tenants out of rented properties if a final judgment of eviction has been issued by a court of competent jurisdiction.  As a law firm that handles many eviction matters for commercial and residential landlord, the recent Texas court decision as well as other actions being pursued in the State of Florida, seems to finally set the stage for a swing in favor of landlords who have been negatively affected by tenants refusing to pay rents.  It seems like the tide is turning to getting back to the rule of law.

This article is solely a partial explanation of all the issues related to the topic of this newsletter and is not to be considered legal advice. Individuals should seek legal advice for all issues related to this article. This Newsletter is for informational purposes only and should not be relied upon as a legal opinion.