Get Out!? Evictions Under the CDC’s September 4, 2020 Order
Your tenant is behind on rent due to COVID-19 related issues. Can you evict the tenant? That one question has profound ramifications for existing properties, projects under construction, and projects still in planning stage. The inability to collect full rent or evict current tenants affects financial obligations, ROIs, and a myriad of other decisions, many of which present risks not just to owners, but developers, designers, contractors and subcontractors.
The Centers for Disease Control and Prevention (“CDC”) just made both the answer to the question as it pertains to residential tenants simpler and the ramifications of the answer more complex. On September 4, 2020, the CDC published an agency order that temporarily halts residential evictions to prevent the further spread of COVID-19. The CDC’s order is premised on the convergence of COVID-19, seasonal influenza, and the increased risk of evicted individuals having to shelter in close quarter, exacerbating the potential for community spread of the novel coronavirus and COVID-19.
Here are a few things you should know about the CDC’s order.
1. When is the Order Effective?
This agency order is effective beginning September 4, 2020 and ending December 31, 2020.
2. What Does the Order Do?
A landlord, owner of a residential property, or other person (including corporations, companies, associations, firms, partnerships, societies, and joint stock companies) with a legal right to pursue eviction or possessory action, cannot evict any covered person from any residential property in any jurisdiction to which this order applies during the effective period of the order.
3. Who is a Covered Person?
A covered person is 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 (i) 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), (ii) was not required to report any income in 2019 to the U. S. Internal Revenue Service, or (iii) 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 non-discretionary 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.
4. Is There Any Area in Which the Order Does Not Apply?
The 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 the order. Additionally, the order does not apply to American Samoa, which has no reported cases of COVID-19, until such time as cases are reported.
5. Does This Order Preclude Other Authorities from Imposing Additional Requirements?
No. This order does not preclude state, local, territorial, and tribal authorities from imposing additional requirements that provide greater public-health protection and are more restrictive than the requirements in the order.
6. Is this Rent Forgiveness?
No. The order is a temporary eviction moratorium to prevent the further spread of COVID-19. The order does not relieve any individual of any obligation not pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract.
7. Are Evictions for Any Lease Infraction Now Forbidden?
No. Tenants are still required to follow all the other terms and rules where you live. A tenant may still be evicted for reasons other than not paying rent or making a housing payment. For example, nothing in the order precludes evictions based on a tenant, lessee, or resident:
1. Engaging in criminal activity while on the premises;
2. Threatening the health or safety of other residents;
3. Damaging or posing an immediate and significant risk of damage to property;
4. Violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or
5. Violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment.
8. What is the Penalty for Not Adhering to the Order?
A person violating this order may be subject to a fine of no more than $100,000 if the violation does not result in a death, or one year in jail, or both. If the violation results in death, the penalty increases to a fine of no more than $250,000, or one year in jail, or both, or as otherwise provided by law. An organization 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 the imposition of the criminal penalties.
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