January 23, 2021

Volume XI, Number 23

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Federal Residential Evictions Moratorium Update

On September 4, 2020, to prevent the further spread of COVID-19, the Centers for Disease Control and Prevention (“CDC”) issued an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions (the “Order”). The Order was deemed effective immediately and will expire on December 31, 2020 (the “Effective Period”). This Order will be enforced by federal authorities and cooperating state and local authorities through the provisions of 18 U.S.C. 3559, 3571; 42 U.S.C. 243, 268, 271; and 42 CFR 70.18. 

As COVID-19 continues to present a historic threat to public health, federal, state and local government authorities have taken unprecedented and exceedingly rare actions in response to such threat, including, without limitation, border closures, restrictions on travel, stay-at-home orders, mask requirements and eviction moratoria. The Order focuses on the reasons for issuing an extended federal eviction moratorium and considerations for each individual, corporation, company, association, firm, partnership, society or joint stock company (each, a “Person”) affected by the Order.  The Order does not apply to: (i) 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 Order, or (ii) American Samoa until such time as COVID-19 cases are reported in such territory. Accordingly, despite the Order, state, local, territorial or tribal authorities may impose additional requirements that provide greater public health protections and are more restrictive than the Order.

Reasons for issuing an extended Federal eviction moratorium

Eviction moratoria can be an effective public health measure to prevent the further spread of COVID-19 for the following reasons:

  1. It facilitates self-isolation for all individuals.

  2. State and local authorities can more easily implement stay-at-home and social distancing directives to mitigate the community spread of COVID-19.

  3. Housing stability helps protect public health, as shared housing and homelessness tends to increase the likelihood of individuals moving into crowded settings, which puts individuals at a greater risk for contracting COVID-19.

  4. The Coronavirus Aid, Relief, and Economic Security (CARES) Act (Pub. L. 116-136), which provided a 120-day moratorium on eviction filings as well as other protections for tenants, expired on July 24, 2020 and did not reach all renters.  In the absence of state and local protections, as many as 30-40 million people in America could be at risk of eviction if the existing CARES Act was reinstated.

Terms and conditions of the extended Federal eviction moratorium

The Order provides that, during the Effective Period, no Person with a legal right to pursue eviction or possessory action (each, an “Authorized Person”) may evict any Covered Person (as defined below) from any residential property in any jurisdiction to which the Order applies.  For the purposes of the Order, a “Covered Person” “means 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: (a) expects to earn no more than $99,000 in annual income for the calendar year of 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 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 any out-of-pocket medical expenses which are unreimbursed and likely to exceed 7.5% of one’s adjusted gross income for the year;

  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.

In order to invoke the Order and obtain the benefits under same, a Covered Person must provide an executed copy of the declaration provided below (or similar declaration under penalty of perjury) (the “Declaration”) to an Authorized Person. Each adult listed on the lease, rental agreement, or housing contract must also complete and provide a Declaration.

Although the order provides for the protections outlined above for Covered Persons, the Order does not preclude any Person from being required to comply with all of the terms of its lease and rules of the place where such Person lives, including without limitation, the payment of rent and any and all fees, penalties or interest as a result of the failure to pay rent or other housing payment on a timely basis as required under the lease.  Any Person may still be evicted for reasons other than not paying rent or making a housing payment.  For example, evictions may still occur as a result of a tenant: (i) engaging in criminal activity while on the premises; (ii) threatening the health or safety of other residents; (iii) damaging or posing an immediate and significant risk of damage to property; or (iv) violating any applicable building code, health ordinance, or similar regulation relating to health and safety.

Declaration Under Penalty of Perjury for the CDC'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 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 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: _______________

Criminal penalties

Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating the Order may be subject to (i) 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 (ii) a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law.  An organization (which, for purposes of clarity, is not clearly defined in the Order) 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. The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.

Considerations 

Based upon the foregoing, it is important to for all affected by the Order to consider the following in connection with the Order:

  • An Authorized Person should consider whether or not the Order impacts its ability to evict a Person for failing to comply with its obligations that it has under its tenancy, lease agreement or similar contract.  The Order is not intended to waive or release a Person’s liability for failing to do so.  It is simply intended to prohibit eviction for the Effective Period under certain circumstances in the event a Person is unable to comply with its monetary obligations under the governing contract.

  • An Authorized Person should confirm that a Person has not submitted a Declaration prior to filing a complaint for tenant eviction and other supplemental paperwork with the county clerk.  Upon confirmation that no Declaration has been filed, the Authorized Person should ensure that the filed paperwork includes a statement certifying that, as of the date of the filing, the Person being evicted has not submitted a Declaration.

  • Because evictions generally require 30 days’ prior notice, the effects of housing displacements due to the expiration of the Order are not expected to manifest until the 30th or 31st day of January, 2021.

  • The Order fails to fully govern a scenario in which a Person has more than one residence but is unable to pay rent to an Authorized Person in connection with either residence. The Declaration requires a Person to certify that if evicted, such Person 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 he or she has no other available housing options. This implies that a Person cannot submit the Declaration in connection with a secondary residence, even if such Person cannot pay rent for the primary residence either. The CDC will likely have to address this issue to clarify which Persons are able to fully reap the benefits of the Order.

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© 2020 Foley & Lardner LLPNational Law Review, Volume X, Number 254
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