By Colton Addy
The Center for Disease Control and Prevention (the “CDC”) and the Department of Health and Human Services (the “HHS”) has issued an order to temporarily halt a landlord’s right to evict certain residential tenants to prevent the further spread of COVID-19 (the “CDC Order”). The CDC Order is effective through December 31, 2020.
Applicability of the CDC Order. The CDC Order does not apply in jurisdictions that have a moratorium on residential evictions in effect that provides the same or greater level of protection than the CDC Order, and the CDC Order permits local jurisdictions to continue to pass more restrictive eviction moratoriums. To invoke the protection provided by the CDC Order, a landlord’s tenants must deliver an executed declaration (a “CDC Declaration”) form to the landlord that includes the following statements: (i) the tenant has used best efforts to obtain all available government assistance for rent or housing; (ii) expects to earn no more than $99,000 in annual income in 2020 (or $198,000 if filing joint tax returns), was not required to report income in 2019, or received an Economic Impact Payment under the CARES Act; (iii) the tenant is unable to pay the full rent due to substantial loss of household income, loss of work or wages, or extraordinary out-of-pocket medical expenses; (iv) the tenant is using best efforts to make partial payments that are as close to the full rental payments as the tenant’s circumstances permit; and (v) the eviction would likely render the individual homeless or force the individual to move into and live in close quarters or shared living space.
Effect of the CDC Order The CDC Order prevents landlords from evicting tenants for the non-payment of rent or similar housing-related payments that have sent their landlord a CDC Declaration. The CDC Order does not relieve tenants of the obligation to pay rent or other charges owed under their leases and does not preclude a landlord from charging late fees, penalties, or interest for missed payments.
Evictions Permitted by the CDC Order. The CDC Order allows landlords to evict tenants for any of the following reasons: (i) the tenant engages in criminal activity while on the premises; (ii) the tenant threatens the health or safety of other tenants; (iii) the tenant is damaging the property or poses an immediate risk of damaging the property; (iv) the tenant is violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (v) is violating any other contractual obligation other than the timely payment of rent or other similar housing-related payment.
Penalties If a Landlord Violates the CDC Order. A person that violates the CDC Order may be subject to a fine of up to $100,000 and up to one (1) year in jail if the violation does not result in a death, and up to $250,000 and up to one (1) year in jail if the violation results in a death or otherwise as provided by law. An organization that violates the CDC Order may be subject to a fine of up to $200,000 per event if the violation does not result in a death, and up to $500,000 per event if the violation results in a death or otherwise as provided by law.
What Should a Landlord Do If It Receives a CDC Declaration from a Tenant. If a landlord receives a CDC Declaration from a tenant, the landlord should respond in writing to the tenant to encourage the tenant to make partial payments of rent (and similar housing-related payments) to the extent the tenant is able, in accordance with the CDC Declaration. Additionally, the landlord’s written correspondence should remind tenants that the rental amounts are not forgiven and will ultimately need to be paid. Additionally, many tenants may not be aware of the government assistance programs that are available to tenants to help tenants pay their rent during the COVID-19 Pandemic. Landlords should include a list of available resources that tenants can use to pay their rent. The Department of Housing and Urban Development (HUD) has stated that nonprofits that received Emergency Solutions Grants (ESG) or Community Development Block Grant (CDBG) funds under the CARES Act may use these funds to provide temporary rental assistance to tenants. The following websites provide information on federal assistance that is available: (i) www.hudexchange.info/programsupport; https://www.hud.gov/coronavirus; and https://home.treasury.gov/policyissues/cares/state-and-local-governments. Additionally, many local jurisdictions have instituted their own relief programs and have their own resources available. Landlords should include other programs that may be applicable in their jurisdiction. Landlords may also consider filing an eviction proceeding for one of the reasons permitted by the CDC Order, but Landlords should use caution in pursuing such actions as eviction proceedings in the current climate are likely to draw additional judicial scrutiny.
Please note that the orders and laws related to the COVID-19 Pandemic are changing on a daily basis and your jurisdiction may have stricter rules related to evictions in place. A landlord should verify the rules currently affecting their property at any given time.
If you need assistance drafting correspondence to tenants or have any questions regarding the CDC Order or the rules and regulations applicable to your property, please contact the author of this article.