On Friday, September 4, 2020, citing its authority under Section 361 of the Public Health Service Act and 42 CFR 70.2, the Centers for Disease Control and Prevention (“CDC”) published an Eviction Moratorium Order (“Moratorium”) in the form of an agency emergency order that applies nationwide, after circulating a draft earlier this week.[1] The Moratorium prohibits all private and public landlords and property owners from evicting[2] individuals from residential properties between now and December 31, 2020 for failure to make rental or housing payments, so long as the tenant submits a declaration to the landlord (in the form attached to the Moratorium Order). The Moratorium provides that individuals may still be evicted for reasons other than not paying rent or making a housing payment. Further, the Moratorium does not remove the obligation to pay rent or make housing payments—all rent or housing payments, fees, penalties, and interests may continue to accrue between now and December 31, 2020.
The reasoning behind the Moratorium is spelled out in detail in the opening sections. It references the COVID-19 pandemic, that the disease “spreads very easily and sustainably between people who are in close contact with one another,” has resulted in significant mortality, that it is widespread in the United States (citing 5.5 million cases and 174,000 deaths and rising), and that it “presents an historic threat to public health.” The CDC notes that, “[i]n a pandemic, eviction moratoria – like quarantine, isolation, and social distancing – can be an effective public health measure utilized to prevent the spread of communicable disease.” It goes on to note that evictions often result in homelessness and overcrowding in other homes and in homeless shelters, and that these conditions are known to facilitate the spread of the disease. The CDC also notes that the CARES Act contained a limited eviction moratorium, but it only covered tenants in certain rental properties with federal assistance or federally-related financing, and that it expired on July 24, 2020. It goes on to note that without the Moratorium, “as many as 30-40 million people in America could be at risk of eviction,” which would be a scale that is “unprecedented in modern times.” Finally, the CDC notes that “a large portion of those who are evicted may move into close quarters in shared housing or … become homeless, thus contributing to the spread of COVID-19,” and that “[t]he statistics on interstate moves show that mass evictions would likely increase the interstate spread of COVID-19.”
The effective text of the order states as follows:
Therefore, under 42 CFR 70.2, subject to the limitations under the “Applicability” section, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action shall not evict any covered person from any residential property in any State or U.S. territory in which there are documented cases of COVID-19 that provides a level of public-health protections below the requirements listed in this Order.
The order is to be enforced by Federal authorities and cooperating state and local authorities, and contains criminal penalties for violations (up to $100,000 if the violation does not result in a death, or up to one year in jail and a fine of up to $250,000 if the violation results in a death).
A “covered person” for the purpose of the Moratorium is a tenant, lessee, or other resident of a residential property who provides the landlord or other owner of the property a declaration, under the penalty of perjury, that:
- The individual has used best efforts to obtain all available government assistances for rent or housing;
- The individual will earn no more than $99,000 ($198,000 if filing a joint return) in 2020;
- The individual is unable to pay the full rent or make the housing payment due to a substantial loss of income, loss of hours, lay-off, or “extraordinary” out of pocket medical expenses;
- The individual is making best efforts to make timely partial payments; and
- Eviction would likely render the individual homeless or force him or her to move into an overcrowded living situation.
The exact language for the Declaration is set out in an Attachment to the Moratorium.
The terms of the Moratorium are somewhat confusing as to whether it applies to Indian tribes. In the effective text cited above, it prohibits person “in any State or U.S. territory” from carrying out evictions, and the definitions of those terms do not include tribes. However, there are several references to tribes in the Moratorium, such as excluding from coverage “any State, local, territorial, or tribal area with a moratorium on evictions that provides the same or greater level of public-health protection than the requirements listed in this Order.” (Emphasis added.) We note that many tribes have already instituted such moratoria. Thus, it appears that the CDC intends that the moratorium apply to tribes. In light of the significant criminal penalties and the CDC’s intent, we are advising clients to assume that the Moratorium does apply to Indian tribes.
The Moratorium contains no provisions encouraging or requiring renters to enter into repayment plans. Renters who defer payments will then be faced with paying the charges that accrue between now and the end of the year, with no plan in place to protect them from having to pay the accrued charges and interest all at once.
Further, the Moratorium allows evictions for other lease violations, such as criminal activity, nuisance, and drug-related criminal activity, as well as for violations of public health codes or ordinances (the latter was likely included to address tenants who are not complying with COVID-19 protection measures such as mask-wearing and social-distancing).
We anticipate that there may be litigation filed challenging the application of the Moratorium to private landlords.
Please let us know if we may provide additional information about the Moratorium.
[1] Eviction Moratorium Order, Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, Centers for Disease Control and Prevention, 85 Fed.Reg. 55292 (Sept. 4, 2020). Copy attached to this memo.
[2] This does not include foreclosure on a home mortgage.
