CDC Temporarily Halts Evictions for Nonpayment of Rent

(Editor’s note: On Oct. 12, 2020 this post was substantially updated to reflect information that became available after it was originally published.)

The Centers for Disease Control and Prevention (CDC) announced an Agency Order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19” which took effect Sept. 4. The action is distinct from what had been a prohibition under the CARES Act. On Oct. 9 the CDC issued “Frequently Asked Questions” (FAQs) on the order.

Protected Tenancies

The order is not limited to properties with subsidies, but does not apply in jurisdictions with an eviction moratorium that “provides the same or greater level of public-health protection.” Landlords may not evict any “covered person.” Someone becomes covered by providing their landlord a specific declaration.

Covered Person Declaration

Invoking the protection is based on each adult listed on the lease certifying to statements 1-5 below (referred to as a declaration) and delivering it to their landlord or whoever has the ability to evict. The FAQs allow transmission either electronically or by hard copy.

The FAQs state that one person may “provide an executed declaration on behalf of other adult residents” in certain circumstances, such as individuals filing a joint tax return. The extent of this allowance is unclear. Does it mean a single signature works for two people, someone can sign in the name of another, or is it limited to the actual delivery? Also, in what circumstances other than a joint tax return is it possible? Given these unknowns, whenever possible tenants should attempt to have all adults on the lease each execute a separate declaration.

Declaration Statements

A blank declaration form is on the CDC website (use of that specific file is not a requirement). The following is a summary; tenants should use the CDC form or prepare a document using its exact wording, as applies to their circumstance. Also important is acknowledging the declaration is made under penalty of perjury for any false or misleading statements or omissions.

1. the individual has used best efforts to obtain all available government assistance (any governmental rental or housing payment benefits) 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 or (iii) received an Economic Impact Payment (stimulus check);
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 FAQs note a declaration is effective when in another language if it contains the required terms.

Effect of Declaration

Delivering a properly-worded, truthfully-stated declaration prevents the individuals from “being evicted or removed from where they are living through December 31, 2020” even if the landlord started the process before the order’s Sept. 4 effective date. The FAQs resolve what had been a question about preliminary procedural steps: the order does not prevent landlords from initiating eviction proceedings.

The FAQs also clarify that the order “does not preclude a landlord from challenging the truthfulness” of a declaration in court. However, the protections remain in effect until the resolution of such claims.

The order does not

• relieve “any obligation to pay rent” or “comply with any other obligation” under the lease;
• preclude landlords from “charging or collecting of fees, penalties, or interest as a result of the failure to pay rent…”;
• prevent evictions “for reasons other than not paying rent…”

The FAQs add what is arguably an expansion of the protection by stating that individuals who might or do “have COVID-19 and take reasonable precautions to not spread the disease should not be evicted on the ground that they may pose a health or safety threat to other residents.” Use of the phrase “should not” and the surrounding context of this text would support a contention it is more of a recommendation than a mandate. Even so, landlords need to exercise caution before citing exposure risk as a basis for eviction.

Criminal Penalties

Individual landlords violating the order may be subject to a fine of up to $100,000, plus a year in jail if the violation results in a death. Entities are subject to a fine of up to $200,000 or $500,000 if the violation results in a death.

Legal Authority

The order is “under the existing authority of 42 CFR 70.2.” That regulation allows the CDC to “take such measures to prevent such spread of the diseases” it deems necessary when the states’ actions are insufficient.