Posternak Blankstein & Lund LLP is now Arent Fox. Read the press release

DC Superior Court Rules Eviction Filing Moratorium Unconstitutional

DC Superior Court Judge Anthony Epstein ruled on December 16, 2020, that the District’s ban on the filing of new eviction cases during the public health emergency is unconstitutional.

The decision does not allow evictions to take place while the public health emergency is still in effect. However, it does allow for landlords to begin the eviction process.

Judge Epstein stated that the city’s moratorium on eviction filings denies “property owners their day in court for an extended indefinite period” and therefore violates the owners’ Constitutional right to regain possession of their property in a summary proceeding. Epstein clarified that his ruling will not directly result in any evictions during the public health emergency nor prompt a flood of new eviction cases. The short-term impact of the court’s ruling is that the court will begin scheduling hearings in these eviction cases.

As Epstein pointed out in the ruling, the moratoriums “only delay the day of reckoning that [renters] face.” Eviction moratoriums have been in place since March. In May, DC Mayor Muriel E. Bowser signed into law a provision banning eviction filings for 60 days after the state of emergency lifts. The state of emergency was scheduled to end December 31, 2020, but the DC Council voted to give the mayor the authority to extend the public health emergency to March 31, 2021. While DC Council could allow the mayor to extend the public health emergency again later this year, such action would appear to only delay the inevitable for renters facing evictions.

Beth Mellen, the supervising attorney of the Legal Aid Society of the District of Columbia’s Housing Law Unit, reported that there is a concern that landlords will now challenge other parts of the law, thereby weakening the District’s eviction protections further. Concerns aside, there is presently an ongoing ban not only on actual evictions but also on eviction notices, which landlords must provide to tenants before filing an eviction case. Thus, Mellen concurs with Judge Epstein that the ruling is not likely to unleash a wave of new eviction filings or actual evictions. According to Judge Epstein’s order, 1,854 eviction cases were filing in Landlord & Tenant court between March 11, 2020, and December 1, 2020. However, only 458 of those cases remain open. The rest of the cases have been dismissed, are working towards a settlement agreement, or are otherwise inactive. It is those 458 cases that will see hearings scheduled as soon as the court reasonably can.

More constitutional challenges may come. In the order, Judge Epstein stated that the District had a demanding burden to demonstrate a reasonable fit and proportionality between the legislature’s goals and the means it chose to achieve the goals, and ultimately found that the District had not carried that burden, and thus the filing moratorium did not “pass constitutional muster.” Whether the DC Superior Court feels similarly about the other eviction protections remains to be seen.

While the current ruling is in immediate effect, tenants still have an opportunity to appeal. On January 15, 2021, the Office of the Attorney General for the District of Columbia issued a statement that it plans to appeal Judge Epstein’s finding that DC Council’s moratorium on eviction filings is unconstitutional. We will continue to monitor this and related real estate matters as they develop and update this alert accordingly.

Contacts

Continue Reading