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Divided Supreme Court sides with landlords, lifts part of New York eviction moratorium

August 12, 2021 at 8:42 p.m. EDT
Activists protest evictions in Manhattan this week. (Spencer Platt/Getty Images)

The Supreme Court on Thursday night lifted New York’s pandemic-related ban on residential evictions, siding with a group of landlords who said their rights were being violated.

The short emergency order was opposed by the court’s three liberal justices, who noted the moratorium was scheduled to expire at the end of the month.

“We must balance against the landlords’ hardship the hardship to New York tenants who have relied on [the law’s] protections and will now be forced to face eviction proceedings earlier than expected,” wrote Justice Stephen G. Breyer. He said ending the moratorium early “may lead to unnecessary evictions.”

But the practical effect of the court’s order is unclear. The New York moratorium is separate from a federal eviction moratorium that the Centers for Disease Control and Prevention issued and which recently has been extended.

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That ban on evictions covers much of the country, though it has been part of a controversial battle in Congress and the White House and is being challenged in courts.

The Supreme Court’s New York action came on an emergency request from the landlords, and was settled without customary briefing and argument. Such emergency motions are sometimes referred to as the court’s “shadow docket.”

It concerns part of New York’s COVID Emergency Eviction and Foreclosure Prevention Act (CEEFPA), passed in 2020.

That law says that if a tenant self-certifies financial hardship, landlords are generally precluded from contesting that certification and seeking an eviction hearing in court.

“This scheme violates the Court’s longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause,” the majority wrote in the short, unsigned order.

It noted that other protections in the law are undisturbed. For instance, the law “instructs New York courts to entertain a covid-related hardship defense in eviction proceedings, assessing a tenant’s income prior to covid, income during covid, liquid assets, and ability to obtain government assistance.”

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If the court finds the tenant has “suffered a financial hardship” during the covered period, the court shall not issue an eviction warrant, the Supreme Court order noted.

The order did not identify which justices agreed with the outcome, only those who dissented — Breyer and Justices Sonia Sotomayor and Elena Kagan.

Breyer said the “drastic relief” the majority ordered is supposed to come only in cases where the legal rights at issue are “indisputably clear.”

“I conclude that this strict standard is not met here, for three reasons,” he said.

One, he said the law is “best viewed not as a deprivation of the right to challenge a tenant’s hardship claim but as simply delaying the exercise of that right — as of now for less than three weeks until the law expires.”

Second, landlords might simply be delayed in getting the payments they deserve. “New York is currently distributing more than $2 billion in aid that can be used in part to pay back rent, thereby helping to alleviate the need for evictions,” Breyer wrote.

And, he said, the court in weighing government responses to the pandemic should defer to elected officials.

The legislature is “responsible for responding to a grave and unpredictable public health crisis,” Breyer wrote. He added: “The legislature does not enjoy unlimited discretion in formulating that response, but in this case I would not second-guess politically accountable officials’ determination of how best to guard and protect the people of New York.”

The case is Chrysafis v. Marks.