Late yesterday, the Centers for Disease Control and Prevention (“CDC”) issued an Agency Order titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” (the “Order”). The CDC issued the Order as an emergency action. As detailed herein, the Order imposes a moratorium on evictions through the end of the year for Tenants who meet certain criteria. Unlike the CARES Act, which only applied to tenants who participated in a federal housing assistance program or who lived at a property with a federally backed mortgage, this moratorium applies to qualifying tenants at all properties.
The Order takes effect on September 4, 2020 and ends on December 31, 2020 (the “Effective Period”).
The Order is available in its “unpublished” form HERE .
The CDC plans to publish the Order in the Federal Register on September 4, 2020.
The Order prohibits Landlords from evicting “any covered person from any residential property” during the Effective Period of the Order.
To receive protections under the Order, each Tenant must provide a signed copy of the Declaration certifying to the Landlord under the penalties of perjury that:
1. The Tenant has used best efforts to obtain all available government assistance for rent or housing;
2. The Tenant either: (a) Expects 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), (b) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (c) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
3. The Tenant is unable to pay the Tenant’s full rent or make a full housing payment due to: (a) substantial loss of household income, (b) loss of compensable hours of work or wages, (c) lay-offs, or (d) extraordinary out-of-pocket medical expenses (i.e., any unreimbursed medical expense likely to exceed 7.5% of an individual’s adjusted gross income for the year);
4. The Tenant is using best efforts to make timely partial payments that are as close to the full payment as the Tenant’s circumstances may permit, taking into account other non-discretionary expenses;
5. The Tenant, if evicted, would likely (a) become homeless, (b) need to move into a homeless shelter, or (c) need to move into a new residence shared by other people who live in close quarters because the Tenant does not have any other available housing options;
6. The Tenant understands that he/she must still pay rent and must comply with other obligations that he/she may have under his/her tenancy, lease agreement, or similar contract;
7. The Tenant understands that late fees for not paying rent on time as required by his/her Lease may still be charged or collected;
8. The Tenant understands that at the end of this temporary halt on evictions on December 31, 2020, the Landlord may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make him/her subject to eviction pursuant to State and local laws.
9. Any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment.
The CDC provided a copy of the Declaration at the end of the Order.
Again, the CDC requires that Tenants, lessees, or residents must provide an executed copy of the Declaration form (or a similar declaration) to the Landlord and that each adult listed on the Lease should also complete a declaration (but are not required to by the Order).
The CDC also included definitions of various terms including “available government assistance,” “available housing,” “covered person” and “eviction” in the Order.
The Order shall be enforced by Federal authorities and cooperating State and local authorities.
A person violating the Order may be subject 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 death or one year in jail, or both.
An organization violating the Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law.
Additionally, the U.S. Department of Justice may initiate court proceedings, as appropriate, seeking imposition of these criminal penalties.
Nothing in the Order prevents states and localities from adopting stricter eviction protections or enforcing previously adopted eviction protections that provide greater protection than the Order.
The Order expressly states that Tenants may “still be evicted for reasons other than not paying rent.” In other words, the eviction protections only prevents evictions for failure to pay rent.
Nothing in the Order prohibits Landlords from charging or collecting late fees. In fact, the Order includes language making clear that Landlords may still charge late fees. Accordingly, unless prohibited by State or local law, Landlords may assess late fees.
If you are unsure of whether there are State or local laws prohibiting late fees in a particular jurisdiction, please do not hesitate to reach out to us.
While the Order temporarily prohibits Landlords from evicting qualifying tenants, the Order does not relieve any tenant of the obligation to pay rent and late fees or any other obligation that a tenant may have under the lease.
In short, unlike much of the COVID-19 related legislation, the Order requires that Tenants meet certain criteria to qualify for protection from eviction. Additionally, if otherwise permitted under applicable law, Landlords may continue to charge late fees and remain entitled to rent.
The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Multi-Family Landlord-Tenant Law Group.
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