CDC Issues Eviction Moratorium Until Dec. 31

We answer landlords’ most frequently asked questions about the CDC order.

On Sept. 4, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) took unprecedented action when they officially published an order in the Federal Register to temporarily halt all residential evictions to prevent the further spread of COVID-19. This national eviction moratorium covers millions of renters at risk of eviction. It became effective on publication and will last until Dec. 31, 2020, unless extended. For New York, the CDC order extends the state court-ordered pause on evictions past its expected expiration on Oct. 1. After Oct. 1, tenants who qualify under the CDC order will still be protected from eviction, as federal laws take precedence over state or local ones.

The CDC and HHS justified the unprecedented order by citing the historic threat to public health posed by the coronavirus. Given the “historic threat to public health,” the order notes the purpose of the eviction moratorium is to “facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.” The moratorium is intended to help implement stay-at-home and social distancing orders, while also preventing homelessness, which “increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk of COVID-19.”

Here are answers to common questions related to the CDC-issued temporary national moratorium on evictions for nonpayment of rent.

Under What Authority Is the CDC Issuing This Order?

The order cites Section 361 of the Public Health Service Act (42 U.S.C. §264 and a regulation pursuant to the Act, 42 C.F.R. 70.2), which grants the Secretary of Health and Human Services broad authority to enact measures to prevent the spread of disease.

Does the Moratorium Block All Stages of an Eviction?

The order defines “evict” and “eviction” as “any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction…to remove or cause the removal of a covered person from a residential property.” Therefore, the order appears to block all phases of the eviction process.

Where Does the Moratorium Apply?

The order applies to every state and territory with reported cases of coronavirus. The order ensures that the federal moratorium applies in all jurisdictions, except where state, local, or tribal areas have a moratorium on residential evictions that provides the same or greater level of public-health protection than the requirements listed in the order.

In accordance with 42 U.S.C. §264(e), the CDC’s order does not preclude state, local, territorial, and tribal authorities from imposing additional requirements that provide greater public-health protection and are more restrictive. In other words, for jurisdictions that have their own moratoriums, the stronger protections imposed between the state or local moratorium and the CDC’s moratorium are likely to prevail.

Does the Order Stop All Evictions?

Effective Sept. 4, the order declares a national moratorium on residential evictions for eligible renters for nonpayment of rent and nonpayment of other fees or charges until Dec. 31, 2020.

However, tenants may still be evicted for:

• Conducting criminal activity on the property;
• Threatening the health or safety of other residents;
• Damaging or posing an immediate and significant risk of damage to the property;
• Violating applicable building codes, health ordinances, or other regulations related to health and safety; and
• Violating any contractual obligation other than the timely payment of rent, late fees, penalties, or interest.

Are Renters Still Responsible for Back Rent and Fees Accumulated During the Moratorium?

Yes, despite the order, individuals are still obligated to pay rent or make applicable payments. The order doesn’t prevent you from charging or collecting fees, penalties, and interest for late payments. While the moratorium provides immediate protection to renters, it’s not sufficient to prevent evictions once the moratorium ends on Dec. 31, 2020.

What Happens If an Owner Violates the Moratorium?

Under 18 U.S.C. §§3559, 3571; 42 U.S.C. §271; and 42 C.F.R. 70.18, a person violating the CDC order may be subject to a fine of up to $100,000 if the violation doesn’t result in a death, or one year in jail, or both. The fine increases to $250,000 if the violation results in the death of a tenant.

An organization violating the CDC order may be subject to a fine of up to $200,000 per event if the violation doesn’t 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 seeking imposition of these criminal penalties.

What Steps Must Renters Take to Be Protected?

The CDC’s order says a tenant may be exempt from eviction for nonpayment of rent and other fees. To invoke the CDC’s order, tenants must provide a signed declaration to the owner. In other words, the tenant must submit a declaration to the owner that she qualifies for this temporary exemption. Each adult listed on the lease should complete and provide a declaration.

You can give tenants claiming protection from eviction under the CDC’s order our Model Form: Have Tenants Unable to Pay Rent Sign Declaration. The declaration requires the tenant to agree that he or she:

• Has used best efforts to obtain all available government assistance for rent or housing;
• Either 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), wasn’t required to report any income in 2019 to the IRS, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
• Is unable to pay full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, layoffs, or extraordinary out-of-pocket medical expenses;
• 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;
• If evicted, would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because he has no other available housing options;
• Understands he will still need to pay rent at the end of the moratorium (Dec. 31, 2020);
• Understands that fees, penalties, or interest for not paying rent or making a housing payment on time, as required, may still be charged or collected; and
• Understands that any false or misleading statements may result in criminal and civil actions.

Because of the requirement that the protected tenant be “unable to pay rent in full or make full housing payments due to loss of household income, loss of compensable hours of work or wages, [or] lay-offs,” there are some low-wage workers who haven’t experienced a drop in income who won’t be protected under this order unless they have “extraordinary out-of-pocket medical costs.” Out-of-pocket medical costs are considered “extraordinary” if they are likely to exceed 7.5 percent of a household’s adjusted gross income for the year.

Have There Been Any Legal Challenges to the CDC Order?

A Virginia landlord filed a legal challenge on Sept. 8 and requested a temporary restraining order against the CDC order. Despite the landlord’s residence in Virginia, the case was filed in a federal court in Georgia, the state where the CDC is headquartered. The landlord’s case was taken on by the New Civil Liberties Alliance (NCLA), a Washington-based organization whose mission is to “defend constitutional freedoms—primarily against the Administrative State,” according to its website.

The landlord has requested that the court immediately suspend enforcement of the CDC order while the case proceeds to a final trial. A decision from the U.S. District Court for the Northern District of Georgia hasn’t yet been issued. Unless and until the court grants this request for a temporary injunction order, the CDC order remains in effect.