In an effort to curtail the COVID-19 health crisis, the Centers for Disease Control issued an order on Sept. 4, 2020, halting the eviction of any covered person from residential property in jurisdictions covered by that order. Unfortunately, the order’s guidance stops there, leaving practitioners to navigate disparate treatment from jurisdiction to jurisdiction (sometimes within the same jurisdiction) and leaving landlords and tenants alike to plead with courts for varying degrees of relief. While this commentary is not an exhaustive discussion of this order’s varying interpretations, it aims to highlight areas of uncertainty that have arisen since its inception and how the legal community has responded in practice.

The first ambiguity lies in determining whether the order applies in a particular jurisdiction. The order “does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.” The CDC order offers no further guidance on how to make such a determination. Instead, the CDC suggests, through a frequently asked questions publication, that “relevant courts deciding these matters should make the decision about whether a state order or legislation provides the same or greater level of public health protection.” This approach saddles courts with the responsibility of analyzing an ever-evolving body of existing local and state law and determining whether public health benefits are equal to or greater than those offered under the order. Unsurprisingly, it also has the potential to create inconsistent court decisions between counties within the same state. In extreme situations, jurisdictions without dedicated resources to manage this ever-evolving analysis may even see disparate rulings within the same jurisdiction.

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