The CDC issued a temporary order (“Order”) halting the eviction of certain tenants to limit the risk of homeless tenants transmitting COVID-19. This Order was issued just as other federal and state eviction protections have expired or are set to expire. For example, the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act expired on July 24, 2020.
What follows is a detailed outline prepared by the American Association of Private Lenders and its general counsel Geraci LLP that explains what you need to know about the CDC Residential Eviction Moratorium:
HOW LONG WILL THE ORDER LAST (“COVERED PERIOD”)?
The Order takes effect September 4, 2020 (after it is published in the Federal Register) and expires December 31, 2020.
WHAT TYPES OF LANDLORDS ARE COVERED?
The Order applies to any landlord, owner of a “Residential Property”, or other person with a legal right to pursue eviction or possessory action (“Landlord”).
WHAT TYPES OF TENANTS ARE COVERED?
The Order applies to a “Covered Person.” A Covered Person is any tenant, lessee, or resident of a “Residential Property” who provides to his or her landlord a special declaration under penalty of perjury (“Declaration).” The Covered Person must be a natural person.
WHAT TYPES OF RESIDENTIAL PROPERTY ARE COVERED?
A Residential Property means any property that is leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling that leased for residential purpose. A Residential Property does not include any hotel or other guest house that is rented to a temporary guest or seasonal tenant.
WHAT TYPES OF EVICTIONS ARE COVERED BY THE ORDER?
The Order covers any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction and remove a Covered Person from a Residential Property.
DOES THE ORDER COVER A FORECLOSURE?
No. The Order does not include foreclosure on a home mortgage.
WHAT HAPPENS IF MY STATE GIVES GREATER RESIDENTIAL EVICTION PROTECTIONS TO TENANTS?
The Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in the Order.
WHAT ARE THE EVICTION PROTECTIONS UNDER THE ORDER?
A Landlord may not evict a tenant whom is a Covered Person from any Residential Property during the Covered Period if the
tenant provides a Declaration to the Landlord. Each adult listed on the lease must complete and provide the Declaration.
The Declaration requires the tenant to attest to certain facts relating to his or her hardship or inability to pay rent prior to
gaining eviction protection.
Specifically, the tenant must attest to the following:
1. I have used best efforts to obtain all available government assistance for rent or housing;
2. I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing
a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
3. I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;
4. I am using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses;
5. If evicted, I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence
shared by other people who live in close quarters because I have no other available housing options.
6. I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract. I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.
7. I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider
may require payment in full for all payments not made prior to and during the temporary halt, and failure to pay may
make me subject to eviction pursuant to State and local laws.
DOES THE ORDER FORGIVE A TENANT’S OBLIGATION TO PAY RENT TO THE LANDLORD?
CAN A LANDLORD CHARGE FEES TO A TENANT WHO FAILS TO MAKE RENT PAYMENTS?
Yes. A Landlord may charge and collect fees, penalties, or interest as a result of a tenant’s failure to pay rent or other housing payment on a timely basis, under the terms of the Tenant’s lease agreement.
CAN A LANDLORD EVICT A TENANT FOR REASONS OTHER THAN FAILURE TO PAY RENT?
Yes. A Landlord may evict a tenant for:
» Engaging in criminal activity while on the leased premises,
» Threatening the health or safety of other residents,
» Damaging or posing an immediate and significant risk of damage to property,
» Violating any applicable building code, health ordinance, or similar regulation relating to health and safety, or
» Violating any other contractual obligation, other than the timely payment of rent or
similar housing-related payment (including non-payment or late payment of fees, penalties, or
DOES THE ORDER PROTECT A LANDLORD THAT IS UNABLE TO MAKE MORTGAGE PAYMENTS ON THE RENTAL PROPERTY?
No. The Order does not relieve a Landlord of its debt service obligations if a tenant seeks relief
under the Order.
ARE THERE PENALTIES IF A LANDLORD DOES NOT COMPLY WITH THE ORDER?
Yes. There are substantial penalties.
» Violations by Natural Persons. For individual violations, an individual is subject to a fine of no more than $100,000 if the violation does not result in death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both.
» Violations by Business Organizations. For business violations, the organization is subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death.
The Order gives the United States Department of Justice authority to prosecute potential violators.