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Federal Eviction Moratorium – CDC Order

By Brian Griffin, Esq. September 4, 2020 Posted in Landlord/Tenant Law

The Department of Health and Human Services, Center for Disease Control and Prevention issued an Order to be published in the Federal Register on September 4, 2020. This Order issues a nationwide eviction moratorium, beginning on Friday, September 4, 2020, which will run through the end of the year, ending (unless extended) on December 31, 2020.

The Order provides background information on the devastating and historic impact of COVID-19 on the United States. It discusses that the purpose of the Order is to implement a temporary eviction moratorium to prevent the spread of COVID-19, and does not relieve individuals of the obligation to pay rent. Accordingly, there is no prohibition on a Landlord’s right to charge fees, penalties or interest as a result of the failure to pay rent or other housing payment on a timely basis.

HERE’S HOW IT WORKS:

A landlord, owner or a residential property, or other person with a legal right to pursue eviction, shall not evict any covered person from any residential property. This Order is only applicable to non-payment of rent cases. This Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.

Both residential property and covered persons, are defined in the Order. These definitions are set forth below:

A residential property is:

any property leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes, but shall not include any hotel, motel, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.

A covered person is a defined term, meaning:

Any tenant, lessee, or resident of a residential property who provides to their landlord, the owner  of the residential property, or other person with a legal right to pursue eviction or a possessory action, a declaration under penalty of perjury indicating that:

1) The individual has used best efforts to obtain all available government assistance for rent or housing;

2) The individual either

  • 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),
  • 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;

3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;

4) the individual is 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; and

5) eviction would likely render the individual homeless — or force the individual to move into and live in close quarters in a new congregate or shared living setting — because the individual has no other available housing options.


The terms “evict”  and “eviction” are also defined as

any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property. This does not include foreclosure on a home mortgage.

From the Order, there is no clear statement that authorizes or prohibits eviction complaints from being filed with the court. This language, at this time, is being interpreted by many to mean that you can continue to file an eviction, but that you may not actually have a lockout performed. There are arguments for and against this interpretation. For example, those interested in filing an eviction are stating that there is no language in the Order prohibiting a landlord form filing an eviction. However, others may argue that the Order states that the purpose of the Order is to avoid crowds spreading COVID-19, which would apply to court hearings, and may therefore extend to eviction filings. It may also be argued that the definition of eviction prevents the filing of an eviction.

Currently, the Order only explicitly prohibits “eviction,” as defined. Whether this Order will be further clarified, or otherwise interpreted differently, by the State Governments or State Courts, is unclear at this time. This interpretation may change as the Order is reviewed.

There is a Declaration for the covered person to submit to the residential property landlord that certifies that the individual is a covered person under the Act. So, it appears that the landlord can proceed with eviction, until it receives this Declaration. The Declaration provided in the Order is set forth below:

DECLARATION

DECLARATION UNDER PENALTY OF PERJURY FOR THE CENTERS FOR DISEASE CONTROL AND PREVENTION’S TEMPORARY HALT IN EVICTIONS TO PREVENT FURTHER SPREAD OF COVID-19

This declaration is for tenants, lessees, or residents of residential properties who are covered by the CDC’s order temporarily halting residential evictions (not including foreclosures on home mortgages) to prevent the further spread of COVID-19. Under the CDC’s order you must provide a copy of this declaration to your landlord, owner of the residential property where you live, or other person who has a right to have you evicted or removed from where you live. Each adult listed on the lease, rental agreement, or housing contract should complete this declaration. Unless the CDC order is extended, changed, or ended, the order prevents you from being evicted or removed from where you are living through December 31, 2020. You are still required to pay rent and follow all the other terms of your lease and rules of the place where you live. You may also still be evicted for reasons other than not paying rent or making a housing payment. This declaration is sworn testimony, meaning that you can be prosecuted, go to jail, or pay a fine if you lie, mislead, or omit important information.

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;
  • 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 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 extraordinary38 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.
  • 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.

___________________                                           ________________

Signature of Declarant                                                      Date

ADDITIONAL INFORMATION


The definition of “covered person,” according to a footnote in the Order, was selected as a means to determine those most likely to be evicted, thereby causing the largest spread of COVID-19. See Footnote 5.

Normally, agencies such as the CDC, are required to provide a period for notice and comment under the APA. (“Administrative Procedure Act”). The Order states that the APA does not apply to this Order, as it is an emergency Order issued under different authority (42 CFR 70.2). The Order explains that to the extent the APA is applicable, the time period for notice and comment must be waived, as there is good cause to dispense with prior public notice and comment and the opportunity to comment on this Order and the delay in effective date. See 5 U.S.C. 553(b)(3)(B).

Criminal penalties for violation of the Order are set forth, and could result in a fine of no more than $100,000 or one year in jail or both, if the violation does not result in death. The fine amount increases to $250,000.00 if the violation results in death.

CONCLUSION

If you have any questions or concerns about the Order, Griffin Alexander, P.C. can assist. Contact our office today!  973-366-1188

 

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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