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09.09.20

CDC issues eviction moratorium

BY , , Brian P. Donnelly

On September 4, 2020, the Centers for Disease Control and Prevention (CDC) issued an Order preventing evictions due to nonpayment of rent for certain tenants and residents that certify sufficient financial and other need as discussed below.

What are the key issues with CDC’s eviction moratorium?

Restricts eviction

  • With some exceptions discussed below, prevents a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action from pursuing eviction.
  • Broadly prohibits any action to remove or cause the removal of a covered person from a residential property. But leaves ambiguities around communications regarding rent.
  • Does not dislodge a state, local, territorial, or tribal area with a more-restrictive moratorium.
  • Defines covered housing broadly as residential property (including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes). Does not include hotel, motel, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the state, territorial, tribal, or local jurisdiction.

Applies to covered individuals only – occupants claiming need for protection under a declaration

  • Tenants, lessees, or residents of residential properties can claim protection under the Order if they complete and submit the declaration form provided in the Order (or a similar declaration under penalty of perjury). The declaration is not filed; it is provided to one of the parties with the ability to evict. That declaration, and that claim for protection, seemingly can come at any point in the eviction process.
  • Declaration must be completed by each adult listed on the lease, rental agreement, or housing contract. To be protected by this Order, each adult must declare under penalty of perjury that the declarant:
    • used best efforts to obtain all available government assistance for rent or housing;
    • is expected 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;
    • is unable to pay full rent due to substantial loss of household income or extraordinary out-of-pocket medical expenses;
    • is using best efforts to make timely partial payments, as much as possible based on circumstances;
    • if evicted would likely become homeless or move into a shelter or shared residence who live in close quarters;
    • acknowledge rent, fees, etc., owed, and have to comply with any other obligation.
    • acknowledge this moratorium is due to end December 31, 2020, and the housing provider may require payment in full at that time and failure to pay may be cause for eviction under State or local law.

Continues financial and legal obligations

  • Does not relieve any individual of any obligation to pay rent, fees, penalties, or other payments, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract.
  • Does not prevent evictions for other legal violations or failure to follow all the other lease terms or community rules.

This is not a rule

  • The Order is not a rule within the meaning of the Administrative Procedure Act (“APA”), but rather an emergency action taken under the existing authority of 42 U.S.C. 264 and 42 CFR 70.2.

Civil criminal penalties for violation

  • Violators subject to enforcement by federal, state, and local authorities and to a fine of no more than $100,000 if the violation does not result in a 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, if the violation results in a death or as otherwise provided by law. Penalties double for organizations.

The scope and application of this Order are unclear in some respects and are likely to be the source of further developments over the remainder of the year.

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Richard Michael Price

Partner

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Harry J. Kelly

Partner

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Brian P. Donnelly

Counsel

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