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On Tuesday night, the Biden administration issued a new eviction moratorium – a complete reversal from the President’s assertion this weekend that he lacked the authority to do so.

The new moratorium is in effect through October 3, going beyond New York State’s August 31 deadline. It extends the terms of the original moratorium: tenants cannot be evicted for nonpayment of rent.

However, the new moratorium does not apply to the entire nation; rather, only counties with “substantial” or “high” COVID-19 transmission, as defined by the CDC, are covered. To meet this threshold, counties must have over 50 new cases per 100,000 persons in the last 7 days.

As of Wednesday morning, Erie and Niagara counties are classified as experiencing substantial transmission, meaning this moratorium applies there. If other counties reach the “substantial” threshold, the moratorium will apply there, too.

The moratorium applies to counties with substantial or high transmission (orange/red). This map reflects the status as of 8/4/21. Source: CDC.

Every county’s transmission level is reported by the CDC here. Interested parties should track this site frequently to know whether the moratorium applies to them.

The original federal eviction moratorium expired July 31. In a June SCOTUS case challenging the moratorium, Justice Kavanaugh wrote “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”

Because of this decision, President Biden initially stated he did not have the authority to renew it through the CDC, and he called on Congressional leaders to extend it. Congress failed to act on the issue, so the moratorium expired July 31. However, Biden reversed course Tuesday after pressure from Speaker Pelosi and the progressive wing of his party.

The extension is likely to face legal challenges. When asked yesterday at the White House whether this move was Constitutional, President Biden said, “The bulk of the constitutional scholarship says that it’s not likely to pass constitutional muster. … But, at a minimum, by the time it gets litigated, it will probably give some additional time while we’re getting that $45 billion out to people who are, in fact, behind in the rent and don’t have the money.”

The BNP will keep you informed of any updates on the moratorium.

The full text of the renewed CDC eviction moratorium is available here.

As the moratorium continues, landlords and tenants are encouraged to utilize New York’s Emergency Rental Assistance Program, which will help relieve arrears. The BNP advocated strongly for this fund, created in June. However, as of last week, the state has distributed a mere $117,000 in assistance from the $2.7 billion fund.