CDC orders delay of evictions for nonpayment of rent

Published Sept. 2, 2020. Updated Sept. 3, 2020 to include “Practical tips for landlords.” Updated Sept. 4, 2020 to include guidance document from National Apartment Association under “Practical tips for landlords.” Updated Sept. 23, 2020 to include our local court’s response under “Practical tips for landlords.” Updated Nov. 13, 2020 to reflect CDC’s clarification of its order.

Contents:

Introduction

On September 1, 2020, the Centers for Disease Control (CDC), acting under statutory authority to prevent the spread of disease, issued an order (full text here) effective September 4, 2020 delaying evictions for nonpayment of rent through December 31, 2020 if tenants provide landlords with a specified sworn statement. The order:

  • Does not relieve tenants of the obligation to pay rent or other amounts due under a lease. Unless the order is extended, landlords would be able to complete evictions for nonpayment of rent after Dec. 31, 2020 and claim all unpaid rent and other amounts owed under their leases.
  • Does not preclude evictions for lease violations other than nonpayment of rent.
  • Applies only to residential leases (commercial leases are not affected).
  • Does not apply to mortgage foreclosures against homeowners.
How tenants can qualify for delayed eviction

To qualify for the eviction delay, each adult tenant listed on a lease must give the landlord a signed copy of a statement certifying under penalty of perjury that:

  • The tenant has used best efforts to obtain all available government assistance for rent.
  • The tenant:
    • Expects to earn no more than $99,000 in calendar year 2020 (or no more than $198,000 if filing a joint tax return, or
    • Was not required to report any income in 2019 to the Internal Revenue Service, or
    • Received an Economic Impact Payment (stimulus check) pursuant to the CARES Act.
  • The tenant is unable to pay full rent due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical epxnes.
  • The tenant is using best efforts to make timely partial rent payments that are as close to the full full payment as circumstances permit, taking into account other nondiscretionary expenses.
  • If evicted, the tenant likely would become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other peple who live in close quarters because the tenant has no other available housing options.
  • The tenant understands that the tenant must still pay rent and comply with other obligations under the lease and that fees, penalties or interest for not payment rent on time may still be charged or collected.
  • The tenant understands that at the end of the temporary halt on evictions on December 31, 2020, the landlord may require payment in full for all payments not made before and during the eviction delay period and that failure to pay may result in eviction pursuant to local laws.
  • The tenant understands that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment.
Penalties for violations by landlords

According to the CDC order, individual landlords violating the order may be subject to:

  • A fine up to $100,000, or one year in jail, or both, if the violation does not result in a death.
  • A fine up to $250,000, or one year in jail, or both, if the violation results in a death.

A landlord organization (corporation, limited liability company, limited partnership, etc.) that violates the order may be subject to:

  • A fine up to $200,000 per event if the violation does not result in a death.
  • A fine up to $500,000 per event if the violation results in a death.

The U.S. Department of Justice has authority to initiate court proceedings to impose these penalties.

Rationale for order

The order is based on the CDC’s statutory authority to take actions to prevent the spread of communicable diseases.

The order indicates that because COVID-19 spreads easily between people who are in close contact with each other, mainly through respiratory droplets, the eviction delay will help prevent the spread of the virus because tenants who otherwise might be evicted will not be forced into crowded temporary housing, homeless camps, homeless shelters or shared living quarters with family members or friends.

Practical tips for landlords

Commercial property

If a landlord seeks to evict a tenant from a commercial property, the CDC order has no effect.

Evictions for reasons other than rent non-payment

If a landlord seeks to evict a tenant from a residential property for a reason or reasons other than nonpayment of rent, the CDC order does not apply. Possible evictions in this category are:

  • Unlawful detainer – when a tenancy has been terminated in some fashion, including a termination for violations of the lease.
  • So-called “expedited eviction” – usually when occupants of a rental property have engaged in illegal drug activity.

Evictions for nonpayment of rent

The CDC has issued a clarification of its order. The following information is based on the original order and the clarification.

If a landlord seeks to evict a tenant from a residential property for nonpayment of rent, the landlord’s eviction case can proceed normally unless and until the tenant gives the landlord the signed statement required by the CDC order.

A landlord is not required to provide the signed statement form to a tenant. It is the tenant’s responsibility to obtain the form, complete it, and submit it to the landlord or the landlord’s attorney.

If the tenant gives a landlord the signed statement required by the CDC order before a lawsuit is filed, the landlord can go ahead and file for eviction anyway.

Whether the tenant gives the landlord a CDC declaration before or after an eviction case is filed for nonpayment of rent, the case can proceed as follows:

  • The landlord can ask the court to conduct a hearing on the veracity of the tenant’s CDC declaration. If the court finds the declaration is untruthful in any respect, the case can proceed normally.
  • Even if the court finds the CDC declaration is truthful, the landlord can proceed to obtain an eviction judgment. However, the actual eviction cannot take place until after Dec. 31, 2020.

Execution for possession

If the court adjudges that a landlord is entitled to possession of the premises, the judgment must be enforced by a sheriff’s deputy. We have to ask the court clerk to issue the execution for possession (eviction order) and transmit that to the sheriff.  The landlord must then coordinate the eviction time/date with the assigned deputy and be prepared to remove the tenant’s property from the premises.

In a rent nonpayment case, the execution order will specify nonpayment of rent as the reason for the eviction. It is our opinion that if the tenant were to give the landlord a proper statement pursuant to the CDC order after judgment but before eviction, both the landlord and the sheriff’s deputy would be obligated not to proceed with the eviction until after Dec. 31, 2020.

However, again, if the landlord believes the tenant’s statement is false or non-compliant with the CDC order, we can ask the court to determine if the statement is valid. If the court decides the statement is invalid, the eviction can take place.

In an unlawful detainer or expedited eviction case, we will need to ask the court clerk to specify the type of case on the execution for possession. So long as the execution does not say the eviction reason is nonpayment of rent, it is our understanding that the sheriff’s deputy will enforce the eviction.

Guidance from National Apartment Association

On Sept. 3, 2020, the National Apartment Association circulated a guidance document to its members.

Commentary

The National Apartment Association released the following statement on September 1, 2020:

The National Apartment Association (NAA) and its members are deeply concerned with the U.S. Centers for Disease Control and Prevention’s order for a temporary halt in residential evictions. Without direct rental assistance, rents cannot be paid, and owners face a financial crisis of their own by not being able to maintain properties and pay their mortgages or property taxes. This action risks creating a cascade that will further harm the economy, amplify the housing affordability crisis and destroy the rental housing industry. This global housing crisis cannot be blamed on the rental housing industry, nor can the industry bear the brunt of the pandemic alone. We need balanced, reasonable solutions for all Americans.

Comments from others include:

  • The order can be seen as the result of the President’s announcement in August 2020 that he would deal with evictions.
  • The last section of the declaration – “I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment” – could pose a problem for tenants. The threat of criminal and civil penalties may be enough to keep some tenants from taking advantage of the CDC order.
  • The CDC does not have authority to cancel rent or relieve people of the obligation to pay or provide rental assistance. Therefore, after December 31, 2020, landlords can ask for all past-due rent. Thus, absent action by Congress to provide rental assistance, the effect of the order is only to delay the ultimate reckoning.
  • While there are criminal penalties for violating the eviction delay, the CDC doesn’t have the personnel or authority to enforce the order on its own. Enforcement of penalties will be up to federal prosecutors, who may have other priorities.

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