CDC Issues Order Halting Some Non-Payment Evictions Through June 30, 2021 (was Dec 31, then Jan 31, Mar 31, June 30, July 31, now Oct 3)

On September 4, 2020, the Centers for Disease Control (CDC) issued an order that halts eviction action in certain cases (Click Here for the full language of the order).  In summary, if a tenant is being evicted for non-payment and they provide their landlord with a declaration attesting to the five prongs outlined below, then the landlord cannot have the sheriff or constable physically evict the tenant.  The tenant must attest to the following (our thoughts/comments are in red and italics):

1. “The individual has used best efforts to obtain all available government assistance for rent or housing” (there has been BILLIONS of dollars disbursed nationwide under different COVID-19 relief programs, some of which expired as of December 31, 2020 and some new programs through 2021 - contact us at info@utahevictionlaw.com and we can help you apply),
2. They earned under $99K (or $198K if filing joint tax returns) in 2020, or they are expected to earn less than $99K (or $198k if filing jointly) in 2021, or they received a stimulus check (almost all tenants will meet this),
3. “The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-of, or extraordinary out-of-pocket medical expenses” (which may be difficult for you to determine since the tenant has all of this information),
4. “The individual is using best efforts to make timely partial payments that are as close to the full payment as circumstances may permit, taking into account other nondiscretionary expenses” (if they fail to pay anything and are not communicating, you may have a stronger argument that they do not qualify here), and
5. Finally, “eviction would likely render the individual homeless – or force the individual to move into and live in close quarters in a new congregate or shared living setting – because the individual has no other available housing options” (which is based on their personal circumstances and may be difficult to determine).

The CDC Order does not apply to EVERY eviction case automatically.  A tenant MUST provide a signed and sworn declaration in order for the CDC Order to go into effect.  The CDC Order specifically states: “To invoke the CDC’s order these persons must provide an executed copy of the Declaration form (or a similar declaration under penalty of perjury) to their landlord…”.  The CDC has published their own declaration form (Click Here), but as long as the tenant provides a substantially similar declaration it does not have to be this exact form.  Also be aware that the CDC Order does not list any deadline on when the tenant has to provide the declaration.  This means that a tenant may be able to provide a declaration and seek the protections of the CDC Order at any time along the eviction process (including the day of the lockout).  The CDC Order also impacts cases that were filed prior to the CDC Order going into effect.

If a tenant qualifies for protection and provides the required CDC declaration, the landlord is prohibited from taking eviction action against the tenant.  Specifically, the CDC Order defines "eviction" 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.”  It does not prohibit a landlord from trying to work with their tenant and reminding them of the balance owed, but be cautious about threatening eviction, issuing eviction notices, or taking other eviction action.

Some judges across the country read the CDC Order to say that a landlord cannot take ANY eviction action (including serving notices, filing cases, etc.).  The CDC was sued in several states to address this issue, and the CDC themselves had to clarify that their order does NOT prohibit a landlord from the following:

• A landlord may still evict for reasons other than non-payment (including criminal activity, health or safety concerns, damage to person or property, violations of building or health codes, or other lease violations apart from non-payment of rent).
• Even if a tenant qualifies for protection under the CDC Order, a landlord may still file evictions to have their case heard by the state court.
• A landlord may challenge the veracity of a CDC Declaration if the landlord believes a tenant has wrongfully claimed its protections.

So what is restricted?  In the CDC’s words, if a tenant provides a CDC Declaration and qualifies for the protections of the CDC Order, a landlord can perform any of the above actions but cannot “actually evict” (or physically remove) the tenant from the property.  This permits landlords to pursue cases but the actual lockout may need to wait until the CDC Order expires.

In addition, on the CDC issues a Frequently Asked Questions (Click Here for the full language) that provide “non-binding guidance” on how they believe their own order should be used.  In their own words:

• What does the CDC mean by “eviction”?
  • The Order is not intended to terminate or suspend the operations of any state or local court. Nor is it intended to prevent landlords from starting eviction proceedings, provided that the actual eviction of a covered person for non-payment of rent does NOT take place during the period of the Order.  Page 1.
• What can a landlord do if a tenant has declared that they are a covered person under the CDC Order, but the landlord dodoes not believe the tenant actually qualifies?
  • The Order does not preclude a landlord from challenging the truthfulness of a tenant’s declaration in any state or municipal court. The protections of the Order apply to the tenant until the court decides the issue as long as the Order remains in effect.  Page 6.

Both landlords and tenants should take the CDC Order very seriously because it lists severe criminal penalties (including possible fines of no more than $100,000/$250,000 for individuals and $200,000/$500,000 for organizations).  Again, without the required declaration from a tenant the CDC Order does not come into play.  But if you receive a declaration that complies with the CDC Order you be very cautious.  On the flip side, if a tenant violates the CDC order by fraudulently filling out the declaration, they should be subject to criminal charges and fines as well.

Landlords considering an eviction really have two options to approach the CDC Order:

• Wait until the CDC Order expires – This approach is problematic because it increases the lost rent for another few months of rent and delays the eviction until after the CDC Order expires.  Many tenants will not act until forced to do so.  An eviction notice and an eviction case may bring them to the table to apply for COVID-19 rent relief funds. Also, the courts have delayed thousands of criminal and civil cases since the pandemic began so there may be a backlog in the courts.
• Pursue the case now – In the cases we have pursued since entry of the CDC Order we have had good success of either (1) completing the eviction because a CDC Declaration is never given, or (2) if a CDC Declaration is given we have been able to negotiate a resolution (which usually includes applying for rent relief programs).

After speaking with several of our clients about the CDC Order, most are pursuing the case now with the understanding that MOST of the case can be processed but they may need to wait until the CDC Order expires to perform the lockout.

If you have any questions about the CDC Order, contact our office at 801-610-9879.

 

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Frequently Asked Questions:

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• Are you serious?  How long do we have to deal with this?
  • The original CDC Order expired on December 31, 2020, but it has been extended several times (Jan 31, Mar 31, June 30, July 31, Oct. 3, etc.). In the most recent order issued Aug 3, that expires Oct 3, 2021 the CDC specifically stated in the order "...absent an unexpected change in the trajectory of the pandemic, CDC does not plan to extend the Order further."

• What do you do if you receive a CDC Declaration?
  • Stop and seek legal counsel!  When you get the declaration you should assume it’s valid on its face and develop a plan.  You should still be able to serve notices, file an eviction, and have the judge hear the case.  But if the judge rules that they are entitled to protection under the CDC Order the lockout may have to wait until it expires.

• If you have not received a CDC Declaration, what can you do if your tenant is late on the rent or causing problems?
  • If you have not received a CDC Declaration then follow the regular eviction process (serve the notices that apply and move forward with an eviction).  As stated above, the CDC Order only comes into play AFTER the tenant has given a sufficient declaration.

• What does the declaration have to cover?
  • A CDC Declaration only hast to cover the five points listed above.  The declaration can cover or explain more, but at a minimum it has to address and attest to the five points in the CDC Order.  Also keep in mind that the CDC Form is NOT required.  The tenant's CDC Declaration can be in a different format and still be valid as long as it is substantially similar to the form CDC Declaration and it covers the five points above.

• What about other types of evictions?
  • The CDC Order only impacts evictions for non-payment and specifically states that other types of evictions may continue - criminal activity, threats to health or safety of other residents, damaging or posing an immediate and significant risk of damage to property, violation of 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, late fees, penalties or interest.

• Can you serve an end of term notice to terminate their lease?
  • The CDC Order specifically impacts only non-payment evictions and doesn’t address end of term notices to terminate a month to month agreement.  Where end of term notices aren't specifically addressed, we believe it would be difficult for a tenant to use the CDC Order to defend an eviction for end of term.  If you serve an end of term notice and the tenant fails to vacate, it is closer to a lease violation (which is permitted) and not a non-payment issue.

• Can I still charge late fees and service of notice fees?
  • Yes.  The CDC Order does not forgive rent and does not stop the accrual of late fees or other fees under the lease.  In addition, the CDC Order does not reference treble damages so the tenant would still be liable for treble damages until they vacate the property.

• Strategies to Consider:
  • If you receive a CDC Declaration, continue to communicate and work with your tenants.  Help them apply for rent assistance and keep in good contact with them.
  • If your tenants aren’t communicating or cooperating, you should probably file an eviction.
  • If the tenants are also causing other problems, consider an eviction based on other grounds (but make sure you can prove your case).
  • Consider allowing leases to go month to month through the end of the year and if they get behind on their rent serve a pay or quit and an end of term (before you're given a CDC Declaration).

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Sincerely,

Utah Eviction Law

Phone: 801-610-9879

info@utahevictionlaw.com

www.utahevictionlaw.com