LEGAL NEWS: CDC Issues Immediate Notice of Nationwide Eviction Ban Through December 31, 2020

In a surprise move on September 1, 2020, the federal government took a serious step to protect renters and homeowners affected financially by the ongoing coronavirus pandemic. In the Center for Disease Control's (the "CDC") order titled "Temporary Halt in Residential Evictions to Prevent Further Spread of COVID-19" (the "Order"), the CDC issued a nationwide moratorium on evictions lasting until December 31, 2020, so long as tenants meet certain criteria, detailed further below.

The Order includes a declaration that must be used when giving notice to a landlord that someone is a "Covered Person" under the Order. The following is the verbatim language of the Renter's or Homeowner's Declaration that tenants, lessees, and residents are required to provide to their landlords when facing potential or actual eviction:

This declaration is for tenants, lessees, or residents of residential properties who are covered by the CDC’s order temporarily halting residential evictions (not including foreclosures on home mortgages) to prevent the further spread of COVID-19. Under the CDC’s order you must provide a copy of this declaration to your landlord, owner of the residential property where you live, or other person who has a right to have you evicted or removed from where you live. Each adult listed on the lease, rental agreement, or housing contract should complete this declaration. Unless the CDC order is extended, changed, or ended, the order prevents you from being evicted or removed from where you are living through December 31, 2020. You are still required to pay rent and follow all the other terms of your lease and rules of the place where you live. You may also still be evicted for reasons other than not paying rent or making a housing payment. This declaration is sworn testimony, meaning that you can be prosecuted, go to jail, or pay a fine if you lie, mislead, or omit important information.
I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:
- I have used best efforts to obtain all available government assistance for rent or housing;
- 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;
- 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;
- 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 nondiscretionary expenses;
- 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.
- 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.
- 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.
I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment.

While the Declaration is made "under penalty of perjury," landlords should probably investigate the veracity of the claims. Landlords should consider requesting proof demonstrating that tenants have met the minimum standards to qualify for eviction protection, including proof of termination from employment, proof of income falling below the maximum threshold, and proof of efforts to obtain federal or state housing aid. Likewise, tenants and other Covered Persons under the Order should be prepared to produce such documentation at the request of the person or organization with a right to evict.

Also important is that the ban on eviction appears to apply to both renters and homeowners paying down a mortgage for their home.

Exceptions to the eviction moratorium include situations where the tenant, lessee, or resident:

  • engages in criminal activity while on the premises;

  • threatens the health or safety of other residents;

  • damages or poses an immediate and significant risk of damage to property;

  • violates any applicable building code, health ordinance, or similar regulation relating to health and safety; or

  • violates 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 interest).

That last exception is extremely important, as landlords will likely try to exploit other breaches of a residential lease agreement to evict tenants that normally would not be used to force an eviction of a non-paying tenant, lessee, or resident.

Penalties for violating the order are steep, including fines ranging from $100,000 to $500,000, as well as jail time.

With fall and winter fast approaching, averting a large-scale homelessness crisis where an estimated 30 to 40 million renters are at risk is clearly on the mind of the CDC. The Order cites a plethora of data that ties increased rates of homelessness and stays at homeless shelters to increased rates of transmission of COVID-19.

The Order also effectively sets a minimum standard for eviction, and clearly states, "This 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 this Order."

The Order, which is 37 pages long, pretty clearly attempts to meet constitutional requirements for such a decision by citing the need to avoid widespread homelessness and increases in shared, communal living arrangements. Importantly, it should be noted that property law and the law governing evictions throughout the nation is typically a localized, state law issue. Federal intervention in residential evictions is rare, and federal restrictions on evictions are more often tied to federal subsidies or grants awarded to landlords. It is foreseeable that the Order will face constitutional challenge at some point.

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