Throughout the COVID-19 pandemic, federal and local governments have adopted varying moratoria on evictions, enacted as emergency legislative protections for tenants facing eviction. The federal moratorium on eviction, promulgated by the Centers for Disease Control and Prevention (CDC), is set to expire on July 31. While the Supreme Court recently left the moratorium in place, the Court signaled that it would likely be held unconstitutional if extended and challenged again. With the sole federal moratorium expiring, state and local protections may remain in effect; however, many of these local orders are also beginning to expire. Washington, DC’s eviction moratorium, one of the most tenant-friendly pieces of emergency legislation in the country, is one such example, beginning a phaseout process that allows the pace of evictions to slowly begin throughout 2021 before a final legislative sunset in February 2022.
In response to the COVID-19 pandemic, the Council of the District of Columbia and Mayor Muriel Bowser enacted a series of public health emergency legislation. Under the Coronavirus Omnibus Emergency Amendment Act of 2020, the Council put a pause on evictions for nonpayment of rent or violations of lease provisions, prohibiting landlords from filing a complaint to evict a tenant who detained “possession of real property without right” or whose “right to possession has ceased.” Under the moratorium, the Council effectively banned residential evictions, unless a court found that a tenant had performed an “illegal act” within the rental unit, that the tenant was causing undue hardship on the health, welfare, and safety of other tenants or neighbors, or that the tenant had abandoned the premises. The moratorium and other tenant-protections were initially set to remain in place indefinitely, expiring 60 days after the end of Mayor Bowser’s declared COVID-19 emergency period.
Despite the enactment of the eviction moratorium, the D.C. Superior Court continued to accept eviction complaints. Between March 11 and December 1 of 2020, a total of 1,854 eviction cases were filed. The court designated Judge Anthony Epstein to adjudicate all questions of law common to the eviction cases. In September 2020, plaintiffs moved for judgment, seeking to have the provision that specifically prevented the filing of evictions to be unconstitutional. Judge Epstein agreed, subsequently issuing a declaratory judgment that the filing moratorium was unconstitutional, finding that it limits the right of property owners to go to court to regain possession of their property by denying them “their day in court for an extended and indefinite period.” The D.C. Court of Appeals granted a stay pending appeal, however, finding, among other things, that the District of Columbia made a strong argument that the filing moratorium does not restrict landlords’ access to courts and that tenants would suffer irreparable harm should the trial ruling stand. A full hearing before the Court of Appeals is expected to be held in September 2021.
Meanwhile, the Council of the District of Columbia unanimously passed what will likely be its final piece of COVID-19 emergency legislation pertaining to evictions. With the public health emergency ending on July 31, evictions were set to fully resume by November 2. However, the Council instead choose to slowly phase out certain aspects of the moratorium on evictions through February 2022, to provide what Council Chairman Phil Mendelson called a “soft landing” for tenants.
Under this new law, landlords may begin sending notices for nonpayment of rent immediately after the bill goes into effect, and may begin filing for evictions on October 12, provided the tenant owes at least $600 in rent, the landlord has applied for relief on behalf of the tenant through an existing DC rental relief program, and the tenant has been given a 60-day past due rent notice. Landlords may begin sending notices for non-monetary tenant defaults on September 26, but notices of eviction may not be submitted until January 1, 2022. Through this phase-out plan, all evictions will ultimately be allowed by February 22, 2022. The Council indicated that this staggered calendar allowing differing times for nonpayment of rent and for other non-monetary lease defaults is intended to prevent the courts from becoming overloaded with eviction cases as the moratorium ends. The law also provides tenants with certain new housing protections, including (i) for those tenants who have applied for assistance within the 60-day past-due period, a legal defense against eviction while their application is pending, (ii) for those tenants denied rental assistance, a rent payment plan that will avoid eviction proceedings, and (iii) for all tenants citywide, a prohibition on rent increases through the end of 2021. An additional provision also requires that landlords provide clear, plain language notices when giving notices of past-due rent, including specifying how much rent is owed, that the tenant has a right to remain in a rental unit while on a repayment plan, and contact information for STAY DC, the rental relief program operated by the District of Columbia.
Washington, DC, like many state and local jurisdictions, provided eviction protections for tenants beyond those offered by the federal government. With changing pandemic conditions, however, DC is now phasing out these protections, allowing the pace of evictions to increase throughout the remainder of 2021 and early-2022. While the specific deadlines of DC’s eviction moratorium are unique to the District, and how efficient jurisdictions are in clearing the backlog will vary, this process of ending or phasing out pandemic-related eviction protections is playing out throughout the country. As such, turbulence for both tenants and landlords will likely continue for many months before returning to a post-pandemic normal.
*The authors would like to thank Summer Law Clerk Laura Killalea for her assistance with the research for this article.