CDC Issues Order Halting Some Non-Payment Evictions Through 2020

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 pursue an eviction based on non-payment.  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” (with the BILLIONS of dollars that were shelled out nationwide under the CARES Act, there should be a decent amount of funds available so this places a burden on the tenant to go out and apply for these fund – The state of Utah has allocated $20M in rental assistance with around $19M of those funds still available when the CDC Order was issued),
  2. They expect to earn under $99K (or $198K if filing joint tax returns) in 2020 or received a stimulus check under the CARES Act (almost all tenants will meet this),
  3. “The individual 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 cast automatically.  A tenant MUST provide this declaration in order for the CDC Order to go into effect in their case (Click Here for the form declaration from the CDC but as long as the tenant provides a substantially similar declaration it does not have to be this exact form).  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…”.  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 may also impact cases that have already been filed and are being processed.

 

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.

 

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 and contact us immediately.  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.

 

 

After speaking with several of our clients about the CDC Order, they are planning on reaching out to their tenants as they normally would.  However, if payment is not made and no payment plan is in place, they intend to issue eviction notices and process the eviction as normal (including turning the case over to us).  We will continue to process our cases unless we receive a declaration under the CDC Order.  This means that some evictions may be halted once a declaration is provided, but the alternative is to do nothing until January 1, 2021.

 

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

 


Frequently Asked Questions:


 

  • Are you serious?  How long do we have to deal with this?
    • Unfortunately, yes.  2020 is the year we all want to be over.  The CDC Order expires on December 31, 2020 and hopefully nothing crazy comes up after that.
  • 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 be cautious about challenging it.  You can still discuss the balance with your tenant and try to help them apply for government rental assistance programs (which they should have done already).  But you should be cautious about issuing an eviction notices or threatening eviction once you receive a CDC Declaration.
  • 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 does not specifically 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 more of 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 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).

If you’re still reading hopefully that means this was beneficial to you.  If we’ve helped you with this article, would you help us by giving us a Five Star Google review?  Click Here to go straight to our Google Reviews.

 

Please contact us if you have any questions.

 

Sincerely,

 

Utah Eviction Law

Phone: 801-610-9879

info@utahevictionlaw.com

www.utahevictionlaw.com

Subscribe to our mailing list

* indicates required
 
 
 

The Landlord Letter is a FREE monthly PDF newsletter that provides tips and tricks on how to be a good landlord, and how to deal with problem tenants. It is not a substitute for legal advice. Please call us for a FREE consultation to discuss your specific situation.