28 Unit deal with 8 delinquents, Covid Eviction moratorium?

Question

I am evaluating a complex in a tertiary market with 8 residents who are delinquent in rent ranging from 55 days to 104 days. Current owner said he took it over in September from his partner and blamed poor renter vetting and said they are waiting on their tax returns. I have doubts that they will ever catch up but that they just wanted to show 96% physical occupancy.

So I think that the only prudent way to evaluate the deal is to assume that I will have to evict 8 residents.

What is current state of CDC eviction moratorium? Is it currently making it harder to evict in Texas tertiary markets?

Thanks,

Tim

Erik W. · Answer

First off, the CDC moratorium is not that hard to get around, provided you don't have extremely liberal judges who make it say more than what it says and assuming your courts are open. There are FIVE requirements for the moratorium to apply, and the renter must swear they meet ALL of them under penalty of perjury:

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 2020-2021(or no more than $198,000 if filing a joint tax return), was not required to report any income in 2020 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 nondiscretionary 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.

Source: https://www.cdc.gov/coronaviru...

The kicker is all the tenant has to do is sign the statement, but you, the LL are allowed to challenge it. Now, let's look at what I consider the easiest ways to punch holes in this.

Point 1: Did they apply for section 8 or any local programs?  I would want to see a list of applications with dates and denials.

Point 2: Not much help here unless you are in a very expensive rental market.

Point 3: I would need to see a copy of a letter from employer stating they had reduced hours and that was due to C-19.

Point 4: If they have done anything like buy/lease a new car, take a vacation, bought a major non-essential household item like a TV, or even gone out to eat regularly at restaurants in the past year I think you would have a very good claim that they are not attempting to pay you partial payments.  $50 a month is still something, and most people who still have jobs should be able to afford that even if their hours are reduced.

Point 5: Do they have family with whom they could move in?  Could they have chosen to move out and downgrade to a cheaper unit and still pay rent?  The key phrase here is "homeless" or extremely cramped living quarters with no other options.

If you were to sit down with most of these tenants and run through this list of items and ask if they would be willing to swear in front of a judge under penalty of perjury that all five of these are true, 9 times out of 10 they would say "No" which gives you grounds to evict.

So what I would do is discount the value of the building since the current owner hasn't gotten the gumption to fight to protect his income, buy it if possible, and then proceed to clean house. This assume there are no other addition restrictions on eviction court in your state/county.

Don't buy the "I'm waiting for my tax return" line. That excuse is from the same line as "the check is in the mail." There are income tax refund anticipation loans now. If they're legit planning on getting a refund and paying rent, they can get the money now and not make the LL wait.

Nick B. · Answer

Underwrite as if you had 8 empty units and project for them to stay empty for another year. Then lower your offer price to where this deal makes sense to you with that assumption. E.g., find the price where your IRR is 20% in 5 years.

Jerry W. · Answer

Just for the record.  It was a federal Judge in Texas who ruled the CDC eviction moratorium was unconstitutional.  He did NOT issue a cease and desist order , but stated he expects them to drop the Order.  The Biden Department of Justice has filed a notice of Appeal on the Order.

Bruce Lynn · Answer

I'd be surprised if you can get a loan on this.....or a loan that makes sense.   Tough situation.

There are some evictions going on, but the way I understand the moratorium is that if you have a Freddie/Fannie loan, you can't evict right now....can even ask them for rent.

Now if you pay cash, you may have options.   Probably want to check with the JP in the area to see if they are hearing eviction cases or when they plan to do so.

Jerry W. · Answer

If you guys want another update a federal Judge in the District of Columbia has also ruled the moratorium is unconstitutional.  His ruling says that the moratorium violates the Due Process clause of the Constitution as it prohibits a Landlords right to access the court system which is guaranteed by the Constitution.  There are several other cases pending in other places.  Once the panic is gone I hope that the courts see reason again.  I feel it is a violation of the takings clause that prohibits the government taking property without compensation.  After the Japanese bombed Pearl Harbor the government rounded up all the Japanese in CA and took their land with the blessing of the courts.  After the war and the hysteria ended the courts later ruled the government was wrong.  Even judges can get caught up in hysteria.

Joe Splitrock · Answer

The CDC website sends mixed messages, which is why I brought it up. The order itself says a landlord pursuing eviction in violation of the order is subject potentially large fines and jail time. The Q and A document says a landlord can challenge the document in court, but also talks about fines and jail time for trying to evict someone who is protected under the order. I guess bottom line is be really sure if you challenge a tenant in court. I could see judges in different states handling this completely differently. Text of the Q/A:

https://www.cdc.gov/coronaviru...

What can a landlord do if a tenant has declared that they are a covered person under the CDC Order,but the landlord dodoes not believe the tenant actually qualifies?The Order does not preclude a landlord from challenging the truthfulness of a tenant’s declaration inany state or municipal court. The protections of the Order apply to the tenant until the court decides theissue as long as the Order remains in effect.

What are the penalties for a landlord, owner of a residential property, or other person with a legalright to pursue an eviction or a possessory action violating this Order?Several laws ( 18 U.S.C. §§ 3559 and 3571, 42 U.S.C. § 271, and 42 C.F.R. § 70.18) say that a person whoviolates the Order may be subject to a fine of no more than $100,000 or one year in jail, or both, if theviolation does not result in death. A person violating the Order may be subject to a fine of no more than$250,000 or one year in jail, or both, if the violation results in a death or as otherwise provided by law.An organization violating the Order may be subject to a fine of no more than $200,000 per event if theviolation does not result in a death or $500,000 per event if the violation results in a death or asotherwise provided by law. These are criminal penalties and are determined by a court of law. CDC hasno involvement in these penalties.

What if individuals act in bad faith when completing and submitting the declaration?Anyone who falsely claims to be a covered person under this Order by attesting to any materialinformation which they do not believe to be true may be subject to criminal penalties under 18 U.S.C. §1621 (perjury) or other applicable criminal law.How does the federal government intend to enforce this Order?The U.S. Department of Justice prosecutes violations of this Order

Tim Rainey · Answer

This would be non Freddie/Fannie loan.

That makes sense to lower the asking as if those are vacant for a year.

I havent had to go through the eviction process, how time consuming is it?

Erik W. · Answer

@Joe Splitrock, my understanding per consultation with my attorney and this article is you can challenge it.

https://rentalhousingjournal.c...

Tim Rainey · Answer

So, does the current state of evictions make you less likely to want to acquire a new multifamily property at the moment until that is resolved?

It gives me pause that this owner took over operations in September. He is based in another tertiary smaller town about 1.5 hours away. He has a lot of rental property there I am told, enough to employ property managers and handymen.

If he is that seasoned, why wouldnt he have already evicted to get his numbers up for sale? The broker denies its the CDC moratorium but rather they were giving them grace until income tax returns.

Erik W. · Answer

@Joe Splitrock, certainly.  I worked for the Govt for 23 years in the Army National Guard, so I am very familiar with them talking out of both sides of their face and leaving the layman holding the bag and the legal costs for figuring out what they really mean.  As someone once joked, the reason laws are so poorly written is most lawmakers used to be attorneys, so they make sure to leave enough ambiguity so that their buddies never run out of work.

That said, I believe the point you posted about the land lord challenging the truthfulness of the statement in court is where I find my confidence.  I'm not going to sit around and let the Govt tell my tenants it is okay to steal from me.  Since March 2020, I have filed against three tenants, and all three of them paid up either on or after the court date.  One guy paid up before we went to court, the other two I obtained writs of eviction but allowed the tenants to bring everything current (including late fees and legal fees) before the 60 days to execute the writ expired and both were able to do so.  To be clear: we didn't have any of them give us a CDC form, but we were ready with the strategies I outlined above to take them apart in court.

It's risky and the Federal Govt isn't doing us any favors. Locally, our judges enforce contracts--always have--and my attorney whose office handles an average of 15-20 evictions per week and knows them all felt confident we would have no problems.  As REIs, we have to know our local judges, before we bring anything to court.  That's just common sense.

28 Unit deal with 8 delinquents, Covid Eviction moratorium?

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