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Judges Find No Irreparable Harm on Landlords From Federal Eviction Moratorium

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The Eleventh Circuit, in a split decision, ruled that the National Apartment Association and four landlords did not show irreparable harm to justify enjoining the federal eviction moratorium. The majority determined that the property owners and rental agencies involved in the suit have the resources needed to collect rent from non-paying tenants after the eviction ban is lifted. They also referred to the owners and agencies’ capability of bringing civil suits and garnishing wages. Having these resources means they cannot show that they would suffer an irreparable injury that would lead to a preliminary injunction of the eviction moratorium. [1] 

One of the majority judges, Judge Gerald Bard Tjoflat, added that the landlords and agencies would have to bring their lawsuit back to state court, even if the Eleventh Circuit enjoined the moratorium, because they would still have to determine the constitutionality of “the CDC’s order during eviction proceedings”. Judge Tjoflat also stated that “if the alleged harm would be the same with or without an injunction, he couldn’t see a way that the injury could be ‘irreparable’”. [2]

One dissenter, Judge Elizabeth Branch, determined that landlords do, in fact, face an irreparable injury due to the eviction ban. She stated that their irreparable injury is all the lost income that they are unlikely to “ever recover” and that it is in the favor of public interest to suspend the ban. The majority instead believes that landlords being deprived of access to their properties and being unable to ever recover rent are not the kind of irreparable harms that can be addressed by a preliminary injunction. The majority’s reasoning is that the CDC order does not relieve tenants of their obligation to pay rent and that landlords are limited in recuperating lost income through evictions only while the eviction ban is in effect. The majority believes that landlords’ conclusions about tenant’s being unable to pay their rent after the moratorium is lifted is unfounded. [3]

Judge Branch, however, believes that landlords are in the right by attempting to also prevent future losses and not just remedy the loss of past unpaid rent. Judge Branch was persuaded by landlords’ arguments that they are unlikely to recover past-due rent from insolvent tenants after the moratorium is lifted. She also added in her dissent that the CDC actually overstepped its authority by ordering the nationwide eviction moratorium, which she stated is not authorized by the CDC’s enabling statute as the ban does not consider whether the tenants affected are infected with COVID-19. [4]

Judge Branch’s dissent seems to be more in line with Justice Brett Kavanaugh’s reason for voting, in Alabama Association of Realtors et al. v. U.S. Department of Health and Human Services et al., to leave the eviction ban untouched until it expires at the end of this month. Justice Kavanaugh agreed with a federal judge in Washington that the ban should be struck down, and he voted differently because, by letting the ban naturally expire in a few weeks, there would be a better distribution of congressionally appropriated rental assistance funds. [5]

The eviction moratorium has helped tenants who have lost their jobs due to the COVID-19 pandemic or have disabilities putting them at much higher risk of contracting the virus and getting sicker than others would. [6] Moreover, even though the CDC set a nationwide moratorium, states, such as New York, have set their own moratoriums as well. [7] Additionally, landlords will soon get assistance indirectly through rental assistance programs. More information can be found through the Office of Temporary and Disability Assistance website.[8]

[1] The Eleventh Circuit has jurisdiction over federal cases originating in Alabama, Florida, and Georgia. Brett Barrouquere, “11th Circ. Finds No Irreparable Harm In CDC Eviction Halt”, Law360, 14 Jul. 2021,, acc. 19 Jul. 2021.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.; Jimmy Hoover, “Supreme Court Refuses To Lift CDC’s Eviction Moratorium”, Law360, 29 June 2021,, acc. 19 Jul. 2021.

[6] “CDC Eviction Extension Order Final 06242021.pdf”, CDC, 24 June 2021,, acc. 19 Jul. 2021.

[7] “Eviction Moratoria and Courthouse Operations”, NYC,, acc. 19 Jul. 2021.

[8] “Emergency Rental Assistance Program (ERAP), NYC,, acc. 19 Jul. 2021.

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