Temporary Residential Eviction Moratorium

The federal government issued broad residential eviction protection on September 4 by way of a Center for Disease Control (CDC) Order. The Order prevents any landlord from evicting “covered” residential tenants through the end of 2020. The Order is much broader in scope than the previous CARES Act eviction moratorium, which applied only to federally-backed properties.

A tenant must meet certain criteria to classify as a “covered” tenant. These criteria are:

• The tenant must have used "best efforts" to look for financial assistance to pay the rent.

• The tenant must not expect to earn more than $99,000 in 2020 (or no more than $198,000 if filing jointly).

• The tenant can’t pay full rent because of lost income or "extraordinary" medical expenses.

• The tenant must have tried to pay as much rent as possible in a timely manner.

• If evicted, the tenant would likely become homeless or have to live in a shelter or some other crowded place.

The Order imposes the burden on tenants to sign a sworn statement (or declaration) attesting to these criteria, and to present this statement to their landlord in order for the protections to apply.

Under the Order, a landlord who is presented with a tenant’s declaration may not evict that tenant for non-payment of rent. Any landlord who proceeds to evict anyway is subject to steep monetary penalties (up to $100,000.00) and potential jail time.

The CDC Order, like the CARES Act, grants protections only to tenants unable to pay rent. The Order does not prohibit non-monetary evictions, such as evictions for illegal activity or rule violations.

The Order also specifies that the tenant’s rental payment obligation isn’t affected. That is, the tenant’s rental debt will continue to accrue even though the tenant cannot be evicted throughout the Order’s duration.

It remains to be seen how this Order will work practically (see link for one local judge's perspective). There is no guidance as to when a tenant must present the sworn declaration or the manner in which they must present it; nor is there a requirement that a tenant even be notified of their right to present the sworn statement. Further, there is no guidance on what happens if a landlord desires to challenge the truthfulness of the tenant’s declaration.