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. As discussed below, the Order may or may not change the effect of Washington State’s or the City of Seattle’s (or other local jurisdictions’) residential eviction moratorium.
The Order includes exceptions to the moratorium if a tenant is:
- 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 any applicable building code, health ordinance, or similar regulation relating to health and safety; or
- violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment
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 relief 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. Therefore, since the Washington State residential eviction moratorium is as protective or more protective than the Order in many ways, it is not displaced by the Order as a whole. However, some of its provisions may not be effective if they are less protective than the Order. For instance, the state moratorium allows a landlord to seek to remove a tenant at the end of a tenancy if the purpose of doing so is to take personal occupancy of or to sell the property and the tenant is given at least 60 days’ prior notice. The Order contains no such exception. Arguably, the exception in the State moratorium makes it less protective of public health than the Order and would not be a defense against an action by the U.S. Department of Justice to enforce the CDC order against a landlord who pursued an eviction after a tenant failed to vacate the premises at the end of the notice period allowed under the State moratorium.
On the other hand, the State and local moratoria provide more protection against the spread of COVID-19 in certain aspects and, therefore, provisions of these moratoria may fill gaps left by the Order or even nullify the application of some of the Order’s requirements. Foremost, the state and local moratoria do not require tenants to meet any pre-conditions before receiving the protection afforded by the moratoria, such as income limits or level of effort to pay full rent. Also, collection of debt is specifically prohibited in the State moratorium unless the landlord at least has offered a “reasonable” repayment plan to the tenant beforehand. Finally, both the State and the City prevent rent increases during the moratoria. Since these provisions potentially offer more protection against the harms identified in the Order (or, at least, no less protection), they should remain in force despite the issuance of the Order.
Note: The State moratorium is set to expire on October 15, but is likely to be extended. The City moratorium expires on December 31, 2020 unless the Mayor lifts her Emergency Declaration before then.
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, the Order and its residential eviction moratorium should not be taken lightly.