Comparing Federal, State, and Local Covid Rent Eviction Moratoriums: Variations in Scope, Duration, and Eligibility
A Patchwork of Overlapping Moratoria
COVID-19 eviction moratoria were not a monolithic, uniform policy. Instead, landlords across America faced a confusing and often overlapping patchwork of federal, state, and local orders—each with distinct scope, duration, eligibility requirements, and compensation provisions. These variations have profound implications for landlords’ takings claims, as different moratoria present different constitutional challenges and different levels of severity.^1^3^5
This article analyzes the key moratoria that shaped landlords’ experience during the pandemic and explains why these variations matter for constitutional analysis.
Tier 1: The CARES Act Moratorium (March-July 2020)
Timeline: March 27, 2020 – July 24, 2020 (120 days)^2^1
What It Did:
Congress enacted the first nationwide eviction moratorium as part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law on March 27, 2020.^4^2
The CARES Act moratorium prohibited landlords from:
- Commencing eviction proceedings for nonpayment of rent
- Charging late fees for nonpayment of rent during the covered period^1^4
Scope—Limited Coverage:
Unlike later moratoria, the CARES Act moratorium applied only to federally backed properties:^2^1
- Properties with federally backed mortgage loans (Fannie Mae, Freddie Mac, FHA, VA, USDA)
- Properties participating in federal assistance programs (Section 8, LIHTC, public housing, etc.)
- Properties receiving federal subsidies or assistance^4^2
This meant millions of rental properties nationwide were not covered by the CARES Act moratorium.^1
Eligibility—No Declaration Required:
The CARES Act contained no tenant eligibility requirements. If a property was federally backed, all tenants in that property were protected, regardless of income or COVID-19 hardship.^4
Duration—Relatively Short:
The moratorium lasted exactly 120 days—from March 27 through July 24, 2020—with no extensions.^2^4
Compensation:
The CARES Act provided no direct compensation to landlords for lost rent. However, Congress appropriated massive amounts of emergency rental assistance funds that states and localities could use to help tenants pay rent (though these funds went to tenants, not directly to landlords).^1
Tier 2: The CDC Moratorium (September 2020-August 2021)
Timeline: September 4, 2020 – August 26, 2021 (nearly 13 months)^3^4
What It Did:
On September 4, 2020, the Centers for Disease Control and Prevention (CDC) issued an order titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.”^3^4
The CDC Order prohibited landlords from:
- Completing evictions for nonpayment of rent
- Physically removing covered persons from residential property^3^4
Importantly, the Order:
- Did not relieve tenants of rent obligations
- Did not prevent landlords from commencing eviction proceedings (but prevented their completion)^2
- Did not prevent evictions for reasons other than nonpayment (criminal activity, property damage, etc.)^4
Scope—Nationwide:
Unlike the CARES Act, the CDC moratorium applied to essentially all residential rental properties nationwide—regardless of federal backing or assistance. This included:^3^2
- Single-family homes
- Apartments
- Condos
- Mobile homes
- Any residential property leased for residential purposes^1
Eligibility—Declaration System:
The CDC moratorium applied only to “covered persons” who submitted a declaration under penalty of perjury attesting that:^2^4
- Income threshold: Expected to earn no more than $99,000 annually ($198,000 joint) for 2020, OR received an Economic Impact Payment (stimulus check), OR not required to report income in 2019^4
- Used best efforts to obtain all available government assistance for rent/housing^1
- Unable to pay full rent due to substantial loss of household income, loss of work hours/wages, layoff, or extraordinary medical expenses^4
- Using best efforts to make timely partial payments as close to full payment as circumstances permit^1
- Eviction would likely render the individual homeless or force them into close-quarters shared living^4
The Critical Problem:
The declaration system was self-executing. Tenants simply provided the form declaration to landlords—no verification required, no government review, no ability for landlords to challenge. As the complaint in Darby Development noted, “there is no process under the CDC Order to challenge such a declaration.”^1
Combined with harsh criminal penalties ($100,000-$250,000 fines and up to one year in jail), landlords had no realistic ability to dispute tenant declarations, even if obviously false.^1
Duration and Extensions:
The CDC moratorium was repeatedly extended:^2^1
| Period | Authority |
|---|---|
| Sept. 4, 2020 – Dec. 31, 2020 | Original CDC Order |
| Dec. 31, 2020 – Jan. 31, 2021 | Congressional extension (Consolidated Appropriations Act) |
| Jan. 31, 2021 – Mar. 31, 2021 | CDC extension |
| Mar. 31, 2021 – June 30, 2021 | CDC extension |
| June 30, 2021 – July 31, 2021 | CDC extension |
| Aug. 3, 2021 – Oct. 3, 2021 | CDC extension (narrowed to counties with high COVID transmission) |
The moratorium ended August 26, 2021, when the Supreme Court vacated the district court’s stay in Alabama Association of Realtors.^2^1
Total duration: Nearly 13 months.^2
Compensation:
The CDC Order provided zero compensation to landlords. Congress did appropriate $46.55 billion in emergency rental assistance ($25 billion in December 2020, $21.55 billion in March 2021), but these funds went to tenants or states—not directly to landlords.^4^1
Tier 3: State and Local Moratoriums—Wide Variations
State and local governments imposed their own moratoria, which varied dramatically in scope, duration, and compensation.^5^7
Minnesota (Example: Moderate Duration, No Compensation)
Timeline: March 2020 – Summer 2020 (several months)^7
What It Did:
Governor Tim Walz issued an executive order prohibiting evictions for nonpayment except when tenants:^7
- Seriously endangered safety of other residents
- Significantly damaged property
- Engaged in certain criminal activities^7
Scope: Statewide^7
Eligibility: No declaration required; automatic coverage^7
Duration: Several months (ended before CDC moratorium)^7
Compensation: None provided^7
The Eighth Circuit held this moratorium stated a claim for a per se physical taking in Heights Apartments v. Walz.^7
Los Angeles (Example: Extremely Long Duration, Minimal Compensation)
Timeline: March 2020 – January 2024 (nearly four years)^6
What It Did:
Los Angeles Ordinance No. 186585 prohibited landlords from:^5
- Terminating tenancies based on nonpayment of rent
- Evicting for nonpayment
- Charging late fees^6
Scope: Citywide (all residential rental properties)^6
Eligibility: Initially broad; later narrowed but still extensive^6
Duration: Nearly four years—one of the longest moratoria in the nation^5
By August 2021, landlords alleged over $20 million in unpaid back rent.^5
Compensation Provided:
Los Angeles created the Emergency Rental Assistance Subsidy Program (ERASP):^5
- Maximum payment: $2,000 per household (two months × $1,000)^5
- Paid only to low-income qualifying tenants^5
- Application window: One week only (July 13-17, 2020)^5
- Lottery system: Only 50,000 randomly selected applicants received assistance^5
Problem:
Average rent in Los Angeles in 2020: approximately $2,524/month. Thus, the $2,000 maximum didn’t even cover one month of average rent—much less the years of unpaid rent landlords absorbed.^5
The Ninth Circuit nevertheless held this moratorium did not constitute a physical taking.^6
Oregon (Example: Full Compensation)
Timeline: March 2020 – Summer 2021 (over one year)^5
What It Did:
Oregon imposed a statewide eviction moratorium prohibiting evictions for nonpayment.^5
Scope: Statewide^5
Compensation Provided:
Unlike most jurisdictions, Oregon actually compensated landlords:^5
Phase 1 (House Bill 4401, December 2020):
- Compensated landlords for 80% of unpaid rent after April 1, 2020
- Required landlords to forgive 20% of unpaid rent^5
Phase 2 (Senate Bill 278, June 2021):
- Amended HB 4401 to compensate landlords for 100% of unpaid rent
- Applied retroactively to prior distributions
- $150 million allocated to the Landlord Compensation Fund^5
Result:
Oregon landlords recovered essentially full compensation for pandemic rent losses, making Oregon’s moratorium constitutionally compliant.^5
As amicus brief noted: “Oregon’s approach demonstrates it was feasible for states to comply with their Fifth Amendment obligation to compensate property owners for takings.”^5
Why These Variations Matter for Takings Claims
The differences between moratoria affect the strength and nature of landlords’ takings claims:
1. Duration Affects Compensation Amount (Not Liability)
Under Cedar Point Nursery, duration affects only compensation, not whether a taking occurred. A 13-month moratorium and a 4-year moratorium are both takings—the latter just requires more compensation.^4
2. Scope Affects Number of Affected Landlords
- CARES Act: Limited to federally backed properties
- CDC: All residential properties nationwide
- State/local: Varies (some statewide, some city-only)^2^4
3. Eligibility Requirements Affect Administrative Feasibility
- CARES Act: No eligibility screen → all tenants protected
- CDC: Self-executing declaration → effectively all tenants protected
- State/local: Varies^1^4
4. Compensation Provisions Affect Constitutional Compliance
| Jurisdiction | Compensation | Constitutional? |
|---|---|---|
| Oregon | 100% of unpaid rent | ✓ Likely constitutional |
| Los Angeles | Max $2,000 | ✗ Inadequate |
| Minnesota | None | ✗ Unconstitutional taking |
| CDC (federal) | None | ✗ Unconstitutional taking |
5. Overlapping Moratoria Created Complexity
Many landlords faced multiple overlapping moratoria simultaneously:^2
- CARES Act (March-July 2020)
- CDC Order (Sept. 2020-Aug. 2021)
- State moratorium (various dates)
- Local moratorium (various dates)
This created confusion about which rules applied and made compliance extremely difficult.^1
Quantifying the Financial Impact
By January 2021—just five months into the CDC moratorium—industry analysts estimated:^1
- 10+ million delinquent renters nationwide^1
- $57 billion in accumulated unpaid rent obligations^1
- Estimated 30-40 million people at risk of eviction absent government intervention^1
The CDC Order itself acknowledged it had “an annual effect on the economy of $100 million or more” (qualifying as a “major rule” under the Congressional Review Act). The actual effect was tens of billions of dollars.^1
Conclusion: A Patchwork with Constitutional Consequences
COVID-19 eviction moratoria varied dramatically across jurisdictions in scope, duration, eligibility, and—most critically—compensation. Oregon’s approach demonstrates that constitutional compliance was feasible: governments could protect tenants while compensating landlords. Most jurisdictions, however, chose to force landlords alone to bear the public burden—without just compensation.
These variations create different takings claims:
- CDC moratorium: Claims proceed in Court of Federal Claims under Tucker Act
- State/local moratoria: Claims proceed in state or federal district courts
But the constitutional analysis is the same: when government appropriates landlords’ right to exclude by preventing eviction of non-paying tenants, it effects a per se physical taking requiring just compensation—regardless of duration, scope, or stated purpose.
Oregon complied. Los Angeles did not. The CDC did not. Minnesota did not. And landlords nationwide continue fighting for the constitutional protection they were promised: that private property shall not be taken for public use without just compensation.
This article is for informational purposes only and does not constitute legal advice. Property owners with questions about takings claims should consult qualified legal counsel.
