The Current State of Law: A Landmark Victory with Uncertain Future for the Covid Rent Eviction Moratorium Cases
During the height of the COVID-19 pandemic, governments across the United States implemented sweeping eviction moratoriums designed to prevent mass homelessness and slow the spread of the virus. While these policies protected millions of tenants, they also left landlords holding the bag—unable to evict non-paying tenants, yet still responsible for mortgages, property taxes, insurance, and maintenance costs. Years later, the legal battle over whether property owners deserve compensation for these losses has reached a critical juncture.
The bottom line: In a groundbreaking August 2024 decision, the U.S. Court of Appeals for the Federal Circuit ruled that landlords can pursue compensation claims against the federal government for losses suffered under the CDC’s eviction moratorium. However, with the government seeking Supreme Court review and the Federal Circuit denying rehearing en banc in June 2025, the final outcome remains uncertain. Meanwhile, landlords face a ticking clock—the Tucker Act’s six-year statute of limitations means claims based on the moratorium (which ran from September 4, 2020 to October 3, 2021) must generally be filed by October 3, 2027 at the latest.^1
The Federal Eviction Moratorium: What Happened
On September 4, 2020, the Centers for Disease Control and Prevention (CDC) issued a nationwide order temporarily halting residential evictions for tenants unable to pay rent due to COVID-19-related hardships. The moratorium required only that tenants provide a self-certification declaring their inability to pay—no proof was required. Landlords who violated the order faced criminal penalties of up to $100,000 or even $250,000 if a death resulted, plus potential jail time.^1
The moratorium was extended multiple times and remained in effect until October 3, 2021. While Congress appropriated nearly $47 billion in emergency rental assistance ($25 billion in December 2020 and $21.55 billion in March 2021), many landlords received only partial aid or none at all. The Supreme Court ultimately struck down the moratorium in August 2021, ruling that the CDC lacked statutory authority to impose such sweeping restrictions without explicit congressional authorization.
The Darby Development Decision: A Game-Changer
The landmark case addressing landlords’ rights to compensation is Darby Development Company, Inc. v. United States. In July 2021, a coalition of landlords and rental property owners sued the federal government in the U.S. Court of Federal Claims, arguing that the CDC’s eviction moratorium constituted a physical taking of their property under the Fifth Amendment’s Takings Clause, which requires “just compensation” when private property is taken for public use.
The trial court initially dismissed the case, reasoning that because the Supreme Court had found the CDC lacked authority to issue the moratorium, it could not support a takings claim. But on August 7, 2024, the Federal Circuit reversed in a divided 2-1 decision, holding that:
1. The moratorium was “authorized” for takings purposes
The court ruled that even though the CDC exceeded its statutory authority, the agency acted within the normal scope of its duties and in good faith implementation of the Public Health Service Act. As Circuit Judge Prost wrote, “an action can be authorized for takings-claim purposes even if it is unlawful or done without legal authority”.
Judge Dyk vigorously dissented, arguing this holding contradicted over 100 years of Supreme Court precedent establishing that unauthorized government actions cannot create takings liability. He warned the decision would “work a sea change in the government’s takings liability” and expose the United States to potentially $50 billion or more in liability for this case alone.
2. The moratorium constituted a physical taking
Relying on the Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid, the Federal Circuit held that by preventing landlords from evicting non-paying tenants, the moratorium deprived them of “one of the most fundamental elements of property ownership—the right to exclude”. This interference with the right to exclude qualified as a per se physical taking requiring just compensation.
The government argued the moratorium merely regulated the landlord-tenant relationship, citing the Supreme Court’s 1992 decision in Yee v. City of Escondido. But the Federal Circuit distinguished Yee as involving rent control where eviction for non-payment remained available.
The Circuit Split and Supreme Court Uncertainty
The Federal Circuit’s decision created a stark divide among federal appellate courts. The Eighth Circuit reached a similar conclusion in Heights Apartments, LLC v. Walz, allowing takings claims against Minnesota’s eviction moratorium to proceed. However, the Ninth Circuit took the opposite view in GHP Management Corp. v. City of Los Angeles, dismissing landlords’ takings claims against Los Angeles’s local moratorium and holding that Yee barred such claims.
On June 6, 2025, the Federal Circuit denied the government’s petition for rehearing en banc by a 7-3 vote. Judge Chen, concurring in the denial, acknowledged that while the majority correctly applied Federal Circuit precedent, “this case presents a consequential question about the Takings Clause that warrants Supreme Court guidance”. Judge Stark dissented, calling the case one of “exceptional importance” warranting full court review.
Meanwhile, on June 30, 2025, the Supreme Court denied certiorari in the GHP Management case involving Los Angeles’s moratorium. Justices Thomas and Gorsuch dissented, arguing the Court should have taken the case to resolve the circuit split and provide clarity on whether eviction moratoriums effect physical takings.
In August 2025, the Solicitor General requested an extension until October 3, 2025 to decide whether to petition for Supreme Court review in Darby. As of November 2025, the government has declined to seek Supreme Court review, allowing the Federal Circuit’s decision to stand and the case to proceed on remand to the Court of Federal Claims.^9
What This Means for Landlords: Practical Implications
Who may be eligible for compensation?
The Federal Circuit’s decision allows landlords to pursue compensation if they can prove three key elements:
- They had a tenant who did not pay rent during the CDC moratorium period (September 4, 2020 – October 3, 2021)
- The tenant could have been evicted under the lease terms and state law but for the CDC order
- The landlord lost rental income as a direct result
Important caveats:
- State and local moratoriums are different. The Darby decision concerns only the federal CDC moratorium. Claims against state or local governments would need to be brought in different courts under potentially different legal theories.
- Rental assistance may offset claims. Landlords who received emergency rental assistance funds may see their recoverable amounts reduced by those payments.
- Proof is essential. Landlords must document their losses with evidence such as lease agreements, payment records, eviction notices, and tenant CDC declarations.
- The statute of limitations is strict. Under the Tucker Act, takings claims must generally be filed within six years of when the claim accrues. For the CDC moratorium, this means landlords likely have until October 3, 2027 to file claims, though specific circumstances may vary.
What happens next in Darby?
With the government declining to seek Supreme Court review, the case returns to the U.S. Court of Federal Claims for trial on the merits. Landlords will need to prove actual damages on a tenant-by-tenant, unit-by-unit basis. This could involve complex factual inquiries about whether each tenant was truly covered by the moratorium, whether units could have been re-rented, and at what price.
If the landlords ultimately prevail, the government could face liability in the tens of billions of dollars. One estimate suggested that back rent, utilities, and late fees owed as of January 2021 alone totaled approximately $57 billion nationwide.
What About State and Local Moratoriums?
The legal landscape for state and local eviction moratoriums is more complex and varies by jurisdiction:^1
California: The California Rental Housing Association filed suit against the state’s moratorium, but the case was dismissed as moot after the moratorium ended, without addressing the constitutional takings claim. The Apartment Association of Greater Los Angeles obtained a favorable ruling against Los Angeles County, with the court finding the county’s ordinance “unconstitutionally vague,” but lost on similar grounds against the City of Los Angeles.
Los Angeles: As noted above, the Supreme Court denied certiorari in GHP Management, leaving in place the Ninth Circuit’s decision that the city’s moratorium did not effect a taking. The city’s moratorium, enacted in March 2020, was one of the most severe in the country, effectively prohibiting evictions for non-payment from March 2020 until January 2024 in some cases.
Other jurisdictions: Courts around the country have reached varying conclusions. Some have followed Yee to dismiss takings claims, while others have allowed them to proceed based on Cedar Point.
Taking Action: What Landlords Should Do Now
If you’re a landlord who suffered losses during the COVID-19 eviction moratorium, consider these steps:
1. Gather documentation immediately
Collect all evidence of your losses, including:
- Lease agreements
- Rent payment records showing non-payment during the moratorium period
- Copies of any CDC declarations submitted by tenants
- Documentation of attempts to evict
- Records of rental assistance received (or denied)
- Monthly loss calculations
- Property expenses (mortgage, taxes, insurance, utilities, maintenance)
2. Consult with an attorney experienced in takings law
Several law firms are actively investigating and litigating these claims, often on a contingency fee basis where landlords pay nothing out of pocket and keep 100% of any recovery, with attorneys’ fees paid by the government only if successful.^13
3. Act before the statute of limitations expires
Don’t wait. The six-year clock is ticking, and missing the deadline could bar your claim entirely.
4. Stay informed about legal developments
While the government has declined to seek Supreme Court review in Darby as of November 2025, the legal landscape could still evolve through other cases or legislative action.^10
The Bigger Picture: Property Rights in Emergencies
Beyond the immediate financial stakes, these cases raise fundamental questions about the balance between government emergency powers and constitutional property rights. As Justice Thomas wrote in his dissent from the Supreme Court’s denial of certiorari in GHP Management:
“The Court would do well to clarify our case law now, rather than in the heat of the next national emergency”.^17
The debate centers on competing interpretations of Supreme Court precedent. Does the government’s prohibition on evicting non-paying tenants constitute a physical invasion of property requiring automatic compensation under Cedar Point and Loretto? Or does it merely regulate the landlord-tenant relationship, as in Yee, subject to a more deferential standard?
Judge Dyk’s dissent in Darby warned that the majority’s approach could “directly discourage adoption of legitimate government programs because of the risk of takings liability in addition to injunctive and declaratory relief”. Conversely, landlords argue that if the government can commandeer private property to achieve public policy goals during emergencies without paying for it, fundamental protections against government overreach have been fatally weakened.
Conclusion: An Evolving Legal Landscape
The current state of the law regarding landlords’ ability to recover unpaid rent from the government due to COVID-19 eviction moratoriums is:
Favorable but uncertain. The Federal Circuit’s Darby decision represents a significant victory for landlords, establishing that the CDC moratorium likely constituted a compensable taking. With the government declining Supreme Court review, the case proceeds to trial on the merits.^10
A circuit split remains. The Eighth and Federal Circuits allow such claims to proceed, while the Ninth Circuit does not.
Time is limited. The Tucker Act’s six-year statute of limitations means landlords must act soon to preserve their rights.
Significant liability is at stake. If landlords prevail, the government could face tens of billions of dollars in compensation claims.
The law may yet evolve. Other cases working through the courts, potential Supreme Court review in future cases, or legislative action could all change the landscape.
For landlords who suffered losses during the pandemic, the message is clear: document your losses, consult with experienced counsel, and don’t wait. The window to pursue compensation remains open, but it won’t stay that way forever.
This article is for informational purposes only and does not constitute legal advice. Landlords considering takings claims should consult with qualified legal counsel about their specific circumstances.
