CDC Eviction Moratorium is Misunderstood

[Joe Splitrock]

There is some confusion around what the new eviction moratorium does and doesn't cover. First of all, the CDC eviction moratorium prevents eviction due to lack of payment until December 31, 2020. CDC derived authority to put this in place through a Presidential Executive Order. The new moratorium is different than the previous moratorium put in place through the CARES Act. The CARES Act moratorium was passed by Congress and only applied to properties with Federally backed loan or rent programs. The new CDC eviction moratorium applies to ALL long term rental properties. This means even if you have no loan on a property, the moratorium applies. 

This new CDC eviction moratorium is better than the CARES act from the standpoint, it places requirements on the tenant to certify actual hardship. It only applies to non-payment of rent. There are other reasons you may evict a tenant such as:

- Engaging in criminal activity

- Threatening health or safety of other residents

- Damaging or posing risk of damage to the property

- Violating building or health ordinance or similar

- Violating any other lease condition accept for non payment of rent

- Lease hold over after giving notice

Here is how it works if you need to remove a tenant. You give your tenant a notice to vacate as you normally would. If the tenant believes they are covered by the CDC eviction moratorium, they are required to respond to you with a signed declaration. The declaration has specific criteria it must meet and they are signing it under penalty of perjury. All adults in the property must provide a signed declaration.

The important point is that the tenant must actually be unable to pay rent. That basically means unemployed. They also must seek assistance, which means they should be contacting government agencies and should be on unemployment. They are also required to make partial payments, so you should be getting some money. They also have to give you the signed declaration, not just tell you they don't have money due to COVID.

Legal recommendations I have seen suggest if a tenant provides you a declaration meeting the CDC requirements, you should not proceed with eviction. If they don't provide you this declaration, there is nothing stopping you from proceeding with eviction (even for non payment). The CDC order is very specific that all adults in the property must provide this declaration. The grey area is a situation where you receive the declaration, but believe the tenant is lying. There is no process for challenging their declaration, but hopefully this is clarified over time. I would caution tenants if you believe they are making false statements, that there are legal consequences.

Here is the exact wording from the CDC order for the tenant signed declaration:

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; [37]

• 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 [38] 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.[39]

• 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.

FULL TEXT CDC ORDER:

https://www.federalregister.go...

Contact your Senators, Representative, Governor and the CDC stating your objections to this moratorium. Tenants will lie on these declarations. Landlords need due process, which means an opportunity in court to challenge the tenants declaration. Tenants should be required to provide proof of hardship. Most importantly, lost rents will be impossible to recover. The government needs to compensate landlords for lost revenue due to their imposed moratorium.