The eviction moratorium is unconstitutional

The Centers for Disease Control and Prevention has enacted an eviction moratorium that’s entirely outside of its expertise and proper area of administrative governance, was completely unnecessary, harmful to the state of Colorado, and frankly, unconstitutional. Colorado’s housing providers and residents have been working to keep residents in their homes since the start COVID- 19 closures. Rent payment rates have remained high and eviction levels are at an alltime low.

The moratorium on evictions for some residents through the end of 2020, may create the very problem the misguided government officials were worried about when they decided to start dictating housing policy.

Like renters, housing providers are also experiencing financial hardships and struggling to keep the housing market healthy. Over 70% of Colorado’s rental housing properties are seven units or less. Small business owners are a key part of Colorado’s housing supply. Mortgage bills, property taxes, employee paychecks, maintenance expenses still must be paid. There is no mortgage relief or other subsidy available under this eviction moratorium, and housing providers and management companies depend on monthly rental payments to pay these expenses.

For any market to work, legal obligations and contracts must be enforceable. Housing providers and customers have a legal obligation to one another with the understanding that housing will be provided in exchange for rent being paid. When there is no mechanism to enforce the obligation to pay, there is no incentive to rent the unit in the first place.

To keep the housing market functioning, we must protect a reasonably predictable, reasonably priced and reasonably timed method of recovering the property loaned. An eviction ban destroys these contractual lease agreements and removes any solutions for payment between the housing provider and resident.

The CDC is attempting to decree that certain people be given free rent. However, the agency isn’t funding that decree. It’s not a welfare program where the cost is spread among society as a whole. Rather, it is simply demanding that one person pay the other person’s rent. This is exactly what the “takings clause” of the Fifth Amendment was designed to prevent. It was put into place “to bar government from forcing some people alone to bear public burdens ( in this case, the inability to pay rent due to COVID- 19 closures) which, in all fairness and justice, should be borne by the public as a whole.”

The economic upheaval brought on by a global pandemic is not housing providers’ burden to bear alone and forcing them to foot the bill when banks, employees and other goods and services still expect payment, is not only unjust; it will reduce the housing supply for Coloradans. If you can’t get compensated for renting property, there’s no incentive to rent the property. This makes affordable housing less attainable, by reducing the supply and availability of rental properties, and backfires on the renters it’s meant to help.

Telling the country’s housing providers that they can’t file a legal action to get a court to hear their grievances is a textbook case First Amendment violation.

What may save Colorado’s housing market from the CDC’s moratorium are limits on its applicability. The moratorium only applies to residents who can income qualify, demonstrate an inability to pay the full rent, have paid the full partial portion of the rent possible, and have exhausted all available rental assistance programs. It remains to be seen how courts will interpret these standards and how they will deal with disputes over false claims of protections.

If the CDC wants renters to avoid financial evictions, it should be finding other solutions, such as direct rental assistance. Simply stealing from one group is not good advice.