By: Mark A. Mangano
The Department of Health and Human Services through the Centers for Disease Control and Prevention (CDC) issued an agency order (Order) halting evictions nationwide for many tenants of residential properties.1 The Order is far reaching and comes with significant criminal sanctions for violation. However, it is not a universal halt to residential evictions. Safely navigating the landlord and tenant rights under the Order requires a detailed understanding of the Order.
The Order directs that “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 jurisdiction to which this Order applies during the effective period of the Order.” (emphasis added). Understanding this directive requires reference to several critical definitions contained in the Order.
Definitions
“Person” includes corporations, companies, associations, firms, partnerships, societies and joint stock companies.
“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:
- The individual has used best efforts to obtain all available government assistance for rent or housing;
- The individual meets certain maximum income criteria;
- The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income or increases in out-of-pocket medical expenses;
- The individual is using best efforts to make timely partial payments; and
- Eviction would likely render the individual homeless or force the individual to live in close quarters in a new shared living setting because of the lack of other available housing options.
There are additional definitions related to the meanings of “available government assistance” and “available housing.”
“Residential property” is defined as “any property leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes, but shall not include any hotel, motel, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.” A key factor is that the property must be leased for residential purposes.
“Evict” and “Eviction” are defined as “any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property. This does not include foreclosure on a home mortgage.” The Order is directed at leased properties and occupants that meet specified conditions.
Exceptions and limitations
The Order is intended to provide a minimum level of eviction prohibition across the states and territories of the United States with active COVID-19 cases. The Order does not apply in states that have eviction moratoriums that provide the same or greater level of public-health protections than those listed in the Order. What constitutes the same or greater level of public-health protections is not defined. States are not precluded from imposing additional requirements that provide greater public health protection and are more restrictive than the requirements in the Order.
The stated intent of the order is to mitigate the COVID-19 transmission risks associated with potential displacement of tenants to congregate or shared living settings, or unsheltered homelessness. The Order does not relieve individuals from obligations to pay rent, make a housing payment, or comply with other obligations under a lease or similar contract. The Order does not preclude charging or collecting fees, penalties, or interest because of a tenant’s failure to pay.
The Order does not preclude evictions based upon the tenant engaging in criminal activity while on the premises; threatening the health or safety of other residents; damaging or posing an immediate and significant risk of damage to property; violating a building code or health ordinance; or violating any other contractual obligation, other than the timely payment of rent.
When
The Order is effective immediately and continues until at least December 31, 2020. The Order makes clear that extensions of the Order beyond the end of the year are possible.
Criminal Penalties
The Order provides criminal penalties for violating the Order. Individuals may be subject to a fine of up to $100,000 and/or imprisonment for 1 year for violations that do not result in a death. The maximum sanctions for violations that result in death include a fine up to $250,000 and/or 1 year in jail. For organizations the sanctions include maximum fines of $200,000 for violations not resulting in death and $500,000 for violations resulting in death.
Landlords should proceed cautiously in exercising eviction remedies. The Order creates a new set of standards governing the relationship between landlords and tenants of residential properties. The Order addresses highly sensitive issues in the middle of a health crisis. The laws of multiple jurisdictions may need to be considered. There are unanswered questions and it is unclear how the Order will be interpreted. The rules may evolve as the response to the pandemic evolves. Finally, the Order provides potentially severe sanctions for errors.
Landlords should: review their policies, procedures, and communications related to eviction; monitor changes in regulations and rules; consult with counsel; and carefully document compliance with the Order and other governing laws.