CDC Temporarily Halts Evictions for Nonpayment of Rent

Published by Mark Shelburne on Wednesday, September 2, 2020 - 12:00am

On Tuesday, Sept. 1 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.”  The action is distinct from what had been a prohibition under the CARES Act.

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 statements 1-5 below (referred to as a declaration) and delivering it to their landlord. There is no provision for allowing the declaration to occur orally, so presumably it must be in writing. The order is silent on how to document delivery.

The following is a summary of the statements; tenants should prepare a document using its exact wording, as applies to their circumstance. Also important is acknowledging the declaration is made under penalty of perjury.

  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.

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.” Less clear is the effect on landlords filing for eviction or taking other preliminary procedural steps.

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…”

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.

Learn out more about the order and other COVID-19-related housing topics at the Novogradac 2020 Credit and Bond Financing for Affordable Housing Virtual Conference, Oct. 1-2.