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Law360 (May 18, 2021, 6:01 PM EDT) -- Florida Realtors have filed suit in federal court seeking to overturn a national eviction moratorium prompted by the COVID-19 pandemic, slamming the measure's "terrorizing terms" and saying it could cause them to lose tens of millions of dollars.
In a 28-page complaint filed Monday in Tampa, the Florida Association of Realtors and a Gulfport agency claim the measure exceeds federal power and is not backed by evidence that a prohibition on evictions of tenants who are unable to pay rent stops interstate transmission of the disease. Additionally, they said the threat of severe monetary and criminal penalties for violations has left Realtors who own and lease their own properties or serve as property managers afraid to enforce their remaining rights.
"The CDC's eviction moratorium is gravely impacting Florida's landlords," plaintiffs' co-lead counsel Matthew J. Conigliaro of Carlton Fields PA said. "On behalf of the Florida Association of Realtors and R.W. Caldwell Inc., we bring this suit to put an end to the CDC's overreach on landlord-tenant rights."
The suit names the Centers for Disease Control and Prevention, which issued the current moratorium, along with the U.S. Department of Health and Human Services, the U.S. Department of Justice and their respective agency heads as defendants.
The federal government first put into effect a 120-day nationwide eviction moratorium in March 2020 through the Coronavirus Aid, Relief and Economic Security, or CARES, Act. That measure covered only certain rental properties connected to federal assistance and loan programs, according to the suit.
On Aug. 8, then-President Donald Trump ordered HHS and the CDC to consider whether a temporary halt on residential evictions for failure to pay rent was "reasonably necessary," and on Sept. 1, the CDC issued an order barring residential landlords from evicting tenants who make certain declarations that they are unable to pay rent. The order remains in place under extensions from Congress and the CDC.
Florida Gov. Ron DeSantis also imposed a state moratorium on residential evictions, which expired in October, according to the suit.
The CDC's order does not relieve tenants of their obligation to pay rent or prohibit interest charges on unpaid rent, and it does not bar evictions for reasons other than nonpayment. But with what the Realtors describe as "terrorizing terms," including penalties of up to $100,000 for violations by individuals and $250,000 for organizations — which can double if they lead to a death — plus the potential for one year in jail, landlords have been dissuaded from taking any steps that might be viewed as violating the order, the suit said.
The suit notes that the CDC's order does not give landlords any relief from paying their property taxes, mortgage payments, or utility and maintenance costs, and points out that while Congress has spent trillions to address the economic impact of COVID-19, it has opted against direct assistance for landlords.
Across multiple counts, the complaint presents a variety of theories challenging the CDC's and Congress' authority to implement these sorts of restrictions, and asks the district court to find the eviction moratorium is unlawful and set it aside.
The Realtors argue that the CDC's order exceeds the authority granted to it by Congress, that Congress was not allowed under Article I of the U.S. Constitution to delegate its legislative power to the executive branch, and that the moratorium exceeded the federal government's authority.
"The power to interfere with private contracts between landlord and tenant, forcing a landlord to continue as such and prohibiting the landlord from exercising contractual and state-based rights to repossess property from nonpaying residential tenants who materially breach their lease agreements, is not contained within the Constitution and any enumerated power," the complaint says.
It also challenges the moratorium as an arbitrary and capricious regulation and says it denies landlords access to the courts.
"Indeed, the eviction moratorium makes it a federal crime for landlords to exercise the only option available to them under state law to recover their property: an action to retake possession," the Realtors said.
Landlords and associations in other states have pursued similar legal challenges with mixed results, according to the complaint, noting that while some suits have succeeded at the district court level, the CDC has appealed those and managed to limit their impact or obtain a stay.
A representative for the CDC referred an inquiry to the DOJ. The representatives for the DOJ and HHS did not immediately respond to requests for comment Tuesday.
The Realtors are represented by Matthew J. Conigliaro and D. Matthew Allen of Carlton Fields PA and David C. Gibbs III of Gibbs Law Firm PA.
Counsel information for the government was not immediately available.
The case is Florida Association of Realtors et al. v. Centers for Disease Control and Prevention et al., case number 8:21-cv-1196, in the U.S. District Court for the Middle District of Florida.
--Editing by Kelly Duncan.
Correction: An earlier version of this story inaccurately described who extended the moratorium.
For a reprint of this article, please contact reprints@law360.com.
