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CDC Issues Guidance, Apartment Industry Concerns Heard

By Brian Griffin, Esq. October 13, 2020 Posted in Landlord/Tenant Law

The U.S. Centers for Disease Control and Prevention (CDC) has created a “Frequently Asked Questions” (FAQ) document as informal guidance to supplement its Order to temporarily halt residential evictions. The CDC Order, as drafted, contained certain ambiguities that the FAQ has now made clear. 


The FAQ clarifies the following important information:

  • A housing provider is not required to notify tenants of the CDC Order, or the tenants’ rights under the Order, including the right to notify the tenant of the need to file a Declaration in order to seek protection under the Order.
  • The Order does not prevent a housing provider from starting or continuing eviction proceedings, even upon the receipt of the Declaration, except to the extent that the Order shall prevent that actual lockout of a covered person under the Order.
  • The Order is not intended to terminate or suspend the operations of any state or local court.
  • The Order does not preclude a housing provider from challenging the truthfulness of the tenant’s Declaration in any state or municipal court. The protections of the Order apply to the resident until the court decides the issue as long as the Order remains in effect.
  • To seek the protections of the Order, each adult listed on the lease, rental agreement, or housing contract should complete and sign a declaration and provide it to the housing provider where they live.
  • Covered people still owe rent to their housing provider. The Order halts residential evictions only temporarily. Covered persons still must fulfill their obligation to pay rent and follow all the other terms of their lease and rules of the place where they live. Covered persons must use best efforts to make timely partial payments that are as close to the full payment as their individual circumstances permit, considering other nondiscretionary expenses.
  • Anyone who falsely claims to be a covered person would be subject to DOJ prosecution.

 

Broken down in a simpler manner, a housing provider may evict a tenant who has not provided a Declaration under the CDC Order. If a tenant has provided a Declaration, under the CDC Order, you may start or continue your eviction, except that the tenant shall not be locked out prior to the deadline in the Order. The CDC Order temporary halts eviction proceedings until December 31, 2020. Unless this Order is extended, you may proceed with lockouts after December 31, 2020.

Remember that, although it may appear as though you may evict a tenant because the tenant has not provided a Declaration to you, or it is beyond the deadline in the CDC Order, you are still subject to State and local laws. This means that you may be able to evict a tenant under the CDC Order, but not under State law. As an example, you may proceed with eviction against a current tenant in the State of New Jersey under the CDC Order, if the tenant has not provided a Declaration, but you are still subject to Executive Order 106, which prevents lockouts until 60 days after the State of Emergency or the Public Health Emergency, whichever occurs later.

We will continue to keep you updated on further COVID-19 developments. If you have any questions about this blog, or you require any legal assistance, please contact our office!

The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.

 

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