CDC Eviction Moratorium - Some Comments and Suggestions
As many of you know, President Trump signed an executive order in August that, in addition to other tasks, required that
"The Secretary of Health and Human Services and the Director of CDC shall consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary to prevent the further spread of COVID-19 from one State or possession into any other State or possession."(1)
At the end of last week, the CDC concluded that an extended eviction moratorium is, indeed, reasonably necessary (in their view) to prevent the further spread, and they published an Agency Order that effectively imposes an eviction moratorium across the country for the remainder of the year. It is set to expire (theoretically...) on 31 December, 2020.
I've heard a lot of landlords either praising Trump for this or bashing him for it. There are also a lot of misconceptions about what the CDC Order actually does. Instead of making an outrage post, I wanted to make a post correcting a few misunderstandings that I saw in recent threads, and also add a few suggestions that I have so that landlords may be better able to minimize the damage caused by this order.
Misconceptions
1. The CDC Order is not particularly harsh as far as eviction moratoriums ago. Since it is country wide, it will override harsher and more restrictive moratoriums state-level and block new state-level moratoriums in the future. This EO and CDC Order is an attempt to standardize moratoriums, and will ultimately benefit landlords.
Unfortunately, this is not the case. At all. The actual verbiage of the CDC Order is as follows:
"This 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 this Order. Nor does this order apply to American Samoa, which has reported no cases of COVID-19, until such time as cases are reported.
In accordance with 42 U.S.C. 264(e), 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 this Order."(2)
The CDC has made it clear that they want to increase restrictions, and exclusively increase them. States that have very harsh anti-landlord policies will be in no way blocked from continuing those policies, while states that previously had no eviction moratoriums now do.
2. The CDC eviction moratorium will block any attempts to evict a tenant. This will allow criminals and thugs an even greater chance to exploit the pandemic, and landlords will now have no recourse.
Thankfully, this is not true. This eviction moratorium only prevents an eviction due to inability to pay the rent. The actual verbiage of the CDC order is as follows:
"Nothing in this 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; [10] (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 (including non-payment or late payment of fees, penalties, or interest)."(3)
Clearly, this order only prevents evictions over payment-related issues. Criminality and damages are not protected.
3. The CDC Order applies to all tenants across the country. Landlords will automatically find themselves facing legal barriers when a tenant refuses to pay the rent.
Again, this is actually false. Only "covered persons" are protected from payment-related evictions. The CDC Order defines a "covered person" as:
"...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 [they meet the requirements]."(4)
The key here is that a person is only covered if they provide the proper declaration to their landlord that states under penalty of perjury that they meet all of the requirements. If they meet those requirements but they're too chaotic to find and fill out paperwork or hire a lawyer to do so, they still have no protection under this order.
Recommended Responses
Contingent on the applicable state laws governing what a landlord can and can't include in a lease agreement, I would recommend the following changes to cope with the CDC Order.
1. Update (or fortify) your lease agreements with your own health and safety clauses, or other non-payment related contractual obligations.
It's important to note that the CDC Order, as above, still allows evictions. They just can't be payment related. I recommend that landlords find several issues that are highly correlated with non-payment, and explicitly include them in the lease agreement as violations that lead to eviction. As a simple example, I live in an apartment community. I notice that in my area, many of the individuals that I'd think most likely to become "problem tenants" don't wear face masks even though the apartment community now requires it. If that were in the lease agreement and they stopped paying, you could still try to evict them for endangering the health of your other tenants. And what would their argument be? "They can't evict me, because the CDC says it's a danger to public health!" "Your honor, we're evicting her because she is a danger to public health--she won't follow our CDC-suggested guidelines!" The crowd gasps at this bombshell, and she is evicted.
2. Increase your document-keeping and monitoring.
This eviction moratorium prevents you from evicting people who can't pay and have exhausted all reasonable means of getting aid and have nowhere else to go and haven't broken any other contractual obligations.(4) Just how strenuous the tenants will be held to these standards will surely vary by jurisdiction. Nevertheless, I believe that documenting and monitoring can go a long way. You want a copy of their pay stubs. You want receipts from their government aid. You want the phone numbers to get in touch with their employers. If possible, you may even want a list of relatives who live nearby--remember, one of the requirements that a tenant must satisfy to avoid eviction is that eviction is likely to cause homelessness--not so likely if mom and dad have a spacious home down the street.
3. Give tenants information strategically
If a tenant is completely ignorant of the details of the moratorium, they may simply believe that they can stop paying. If they believe this, then they will stop paying. You may then evict them, but it'll be a big hassle. On the other hand, if they know all the details, they are better equipped to game the system. I would recommend that you give them just enough information that they understand that they do still have to pay rent. For example, DO let them know in simplified terms that claiming that they can't pay if they have some income to pay (and you have their pay stubs proving that they do) is perjury, which is a felony and carries a fine of much more than their rent payment. DO NOT tell them how to find the correct declaration form or how to properly fill it out or how they could mail it to you. This may seem sneaky, but many landlords here are seriously hurting. If tenants are willing to resort to unjustified legalese to exploit the situation, you should be willing to resort to justified legalese to protect yourself in the same way.
4. Consider revoking your property manager's authority to evict.
Tenants must give their declaration to "their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action." If you as the owner are the only person with a legal right to pursue eviction, but they don't have your address or any contact with you, then they technically are incapable of fulfilling the declaration requirement. Having this extra barrier could help pull the law on your side. Tenants often hide to prevent being served. Maybe its your turn to play that card.
These are just a few comments I had after reading through the CDC Order and seeing some knee-jerk reactions that people have had. This order is not good for landlords. It's bad. But it's not the end of the world, and it doesn't even come close to making tenants totally immune to all of their obligations. I'd recommend actually reading over the order itself on the Federal Registry, as it is actually not very long and is much more straightforward than typical legislation.
(1) https://www.whitehouse.gov/pre..
(2)https://www.federalregister.go...
(3) https://www.federalregister.go...
(4) https://www.federalregister.go...