Recent eviction moratoriums on the federal and state level have changed the landscape of landlord-tenant law, blurring the line between holdover tenants and squatters. Existing state laws distinguishing between holdover tenants and squatters may influence the application of eviction moratoriums and relief available to renters and landlords alike. By addressing the distinctions between holdover tenants and squatters, states can prevent costly implications for landlords and tenants that arise as a result of these ambiguities in the law.
II. Federal Eviction Law in the Face of COVID-19
A. Eviction Moratorium
On August 3, 2021, the Director of the Centers for Disease Control and Prevention (CDC), Dr. Rochelle Walensky, issued a limited order (Order) extending the CDC’s June 2021 eviction moratorium until October 3, 2021, due to the ongoing COVID-19 pandemic and rising Delta-variant cases. The moratorium applied to areas experiencing “substantial and high levels of community transmission” and to two kinds of evictions: (1) failure to pay rent and (2) failure to pay late fees.
B. Chrysafis v. Marks
Soon after the CDC released the Order, the Supreme Court ruled on a case challenging the constitutionality of the COVID Emergency Eviction and Foreclosure Prevention Act (the Act) passed by the New York legislature in May 2021. The Court granted an injunction blocking enforcement of Part A of the Act, which “precludes a landlord from contesting [a tenant’s self-certification of financial hardship] and denies the landlord a hearing.” The Court held that Part A violated the Court’s “longstanding teaching that ordinarily ‘no man can be a judge in his own case’ consistent with the Due Process Clause.” Justice Breyer dissented, arguing that an injunction would only be appropriate if “the legal rights at issue were indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances.” In Justice Breyer’s view, the case before the Court did not meet this standard because the legal rights at issue were not “indisputably clear,” as the landlord’s right to challenge a tenant’s hardship claim had not been taken away but simply delayed.
The extended eviction moratorium, in conjunction with the Court’s ruling, opened the door to the question of how squatters’ rights related to the eviction moratorium rules. In general, squatters’ rights refer to the “legal right for an individual to use property that they do not own so long as the property’s true owner does not evict them.” Given that the eviction moratorium halted evictions during the “substantial and high levels” of community COVID-19 transmissions, a gray area arose between non-rent-paying tenants not being evicted due to the eviction moratorium and squatters using property without being evicted. The Order appeared to address this issue by creating exemptions that allowed evictions in cases such as: “Engaging in criminal activity while on the premises,” “threatening the health or safety of other residents,” or “violating any applicable building code, health ordinance, or similar regulation relating to health and safety.”
C. Alabama Association of Realtors v. Department of Health and Human Services
On August 26, 2021, the Supreme Court ended the eviction moratorium. The Court ruled that the CDC exceeded its authority in extending the moratorium because the “downstream connection between eviction and the interstate spread of [COVID-19] is markedly different from the direct targeting of disease[,]” which falls within the CDC’s authority. The Court also held that any federally imposed eviction moratoriums must be authorized by Congress with “exceedingly clear language if it wishes to significantly alter the balance between federal and state power and the power of the Government over private property.” Without the eviction moratorium, tenants can only rely on state- and local-level eviction protection measures.
III. State Laws Distinguish Between Squatters and Holdover Tenants
A. Protected Residents in Maryland
Maryland law makes a clear distinction between squatters and holdover tenants by explicitly defining a group of people known as “protected residents.” According to section 7-113(a)(3), a protected resident “includes a grantee, tenant, subtenant, or other person in actual possession,” but does not include trespassers or squatters. The statute provides protected residents the right of actual possession by prohibiting landlords from “[t]aking any . . . action that deprives the protected resident of actual possession.” Because Maryland statutorily differentiates between holdover tenants—who the eviction moratorium covered—and squatters, the distinction between the two groups is clear. Such clarity makes it simpler to understand the application of eviction moratoriums and relief available to renters and landlords alike and, in turn, prevents potential costly litigation involved in settling such disputes.
B. Protected Residents in Other States
For other states that do not provide such a clear distinction between squatters and holdover tenants, new questions of law may spur additional regulations to govern how and when a non-paying tenant can continue residing on a property when there is no threat of eviction. Alabama, for example, does not have specific laws recognizing squatters or differentiating them from holdover tenants, making it difficult to determine who is a protected resident and who is not. Unlike in Maryland, in states like Alabama that do not distinguish between squatters and holdover tenants, the triggering of eviction moratoriums can create challenges that prevent landlords from evicting squatters even when the law presumes they should be able to.
When a landlord does not have the option to evict for failure to pay rent, as was the case with the eviction moratorium, and state law does not differentiate between squatters and holdover tenants, landlords face a challenging situation. They cannot evict tenants, nor can they evict squatters illegally residing on their property. By adding language to existing state laws to distinguish between squatters and holdover tenants, states can prevent costly implications for landlords and tenants alike, particularly in times of emergency.
*Alina Pargamanik is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. Alina serves as Secretary of the Women’s Bar Association and Secretary of the Real Estate Law Association. She is also a member of the Royal Graham Shannonhouse III Honor Society and a proud Towson University alumna. This past summer, Alina was a legal intern at Alliant Legal Group working on various real estate law matters.
 See PracticePanther, Squatters Rights and the Eviction Moratorium, Nat’l L. Rev. (Aug. 16, 2021), https://www.natlawreview.com/article/squatters-rights-and-eviction-moratorium [hereinafter Squatters Rights].
 See Press Release, Ctrs. for Disease Control & Prevention, CDC Issues Eviction Moratorium Order in Areas of Substantial and High Transmission (Aug. 3, 2021), https://www.cdc.gov/media/releases/2021/s0803-cdc-eviction-order.html.
 Temporary Halt in Residential Evictions in Communities with Substantial or High Levels of Community Transmission of COVID-19 to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 43,244, 43,250 (Aug. 6, 2021) [hereinafter Eviction Moratorium Order].
 Chrysafis v. Marks, 141 S. Ct. 2482, 2482 (2021).
 Id. (quoting In re Murchison, 349 U.S. 133, 136 (1955)).
 Id. at 2483 (Breyer, J., dissenting).
 Squatters Rights, supra note 1.
 See Eviction Moratorium Order, supra note 3 at 43,500.
 Ala. Ass’n of Realtors v. Dep’t of Health & Hum. Servs., 141 S. Ct. 2485, 2486 (2021).
 Id. at 2488.
 Id. at 2489 (quoting U.S. Forest Serv. v. Cowpasture River Pres. Ass’n, 140 S. Ct. 1837, 1850 (2020)).
 Lauren Lowery & Natasha Leonard, What to Know about the Ending of the CDC Eviction Moratorium, Nat’l League of Cities (Aug. 27, 2021), https://www.nlc.org/article/2021/08/27/what-to-know-about-the-ending-of-the-cdc-eviction-moratorium/.
 Md. Code Ann., Real Prop. § 7-113(a)(3) (West 2021).
 Id. § 7-113(b)(1)(iii).
 See id.
 Lee Brantley, WTVM 3/22/13 Editorial: Understanding Squatters’ Rights, WTVM, https://www.wtvm.com/story/21770828/wtvm-32213-editorial-understanding-squatters-rights/ (Jan. 2, 2015, 8:32 PM).
 See id.