Helsell Fetterman

CDC’s Nationwide Residential Eviction Order

By Scott Johnson / September 9, 2020

CDC’s Nationwide Residential Eviction Order

On September 2, 2020, the United States Center for Disease Control (“CDC”) issued a nationwide moratorium on residential evictions until December 31, 2020 (the “Order”).  The purpose of the moratorium (and the legal basis for the CDC’s adoption of the Order) is to protect public health by preventing evictions that inhibit the implementation of stay-at-home orders and prevent voluntary self-isolation intended to minimize the spread of COVID-19.  The Order includes findings that evictions can lead to homelessness or force people into congregate living situations, and, thereby, increase the risk of exposure to the virus by the evicted tenant and the community in general.  However, as discussed below, the Order is not effective in Washington State because the State’s eviction moratorium is more protective than the CDC’s.  If you are in a state where the Order is in effect, here are some details regarding the Order:

The Order includes exceptions to the moratorium if a tenant is:

1. engaging in criminal activity while on the premises;
2. threatening the health or safety of other residents;
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.

The CDC guidelines clarify that the foregoing list means the Order only applies to evictions for non-payment of rent.  The guidelines also clarify that a landlord may start an eviction action; they just are prohibited from enforcing an eviction order.

In order to benefit from the protections under the Order, tenants must meet the following criteria and are required to deliver a declaration to their landlord attesting to compliance with them:

• They have used best efforts to obtain all available government assistance for rent or housing;
• They either expect 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), were not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
• They are unable to pay their full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses (i.e. greater than 7.5% of income);
• They are 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 they 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 they have no other available housing options.

As with other eviction moratoria, the tenant remains obligated to pay rent that comes due.  However, unlike other eviction moratoria, the landlord is allowed to continue to assess late fees, penalties and interest during the CDC moratorium.  Also, it’s not clear whether or not landlords can pursue collection actions (other than evictions) during the CDC moratoria for amounts owing.

The Order does not include income replacement for landlords.

Impact on State and Local Moratoria

The Order allows states and local governments to adopt laws that are as protective or more protective of the public health compared to the provisions of the CDC order with respect to the spread of COVID-19, and, if they do, the Order is not effective in those states or localities. The State (and City of Seattle’s) moratoria clearly are more protective.  They prevent evictions for reasons other than just non-payment of rent and don’t require residential tenants to meet certain criteria to qualify for protection.  Also, these moratoria even prevent landlords from removing tenants at the end of the lease term and prohibit increases in rent. Since the Washington State residential eviction moratorium is as protective or more protective than the Order in these and other ways, the Order is not effective in Washington State

Note:  The State moratorium had been set to expire on October 15, but has  been extended to January 1, 2021.  The City moratorium already had been extended to January 1, 2021 or until the Mayor lifts her Emergency Declaration.

Criminal Penalties for Violating the CDC Order

The U.S. Department of Justice is tasked with enforcement.  Criminal penalties can be up to $100,000 and 1 year in jail per violation for individuals or up to $250,000 if the violation results in a death.  Penalties for organizations are up to $200,000 if the violation doesn’t result in a death and $500,000 if it does.  Therefore, if you are a landlord in a state where the Order is in effect, the Order and its residential eviction moratorium should not be taken lightly.

If you have questions about the effects or operation of any of these eviction moratoria, please do not hesitate to contact any attorney in Helsell Fetterman’s Real Estate and Land Use Group.