On September 4, 2020, the Centers for Disease Control and Prevention (CDC) issued an eviction moratorium that prevents residential landlords and property owners, including CAAs, from evicting tenants impacted by COVID-19 due to their failure to pay rent. The temporary eviction moratorium is effective between September 4 and December 31, 2020, and applies nationwide, other than in states, localities, territories, and tribal areas with a moratorium on residential evictions that provides the same or a greater level of public-health protection. This order impacts many individuals and families served by CAAs and subsequently the services CAAs provide to them. In particular, CAAs that operate affordable housing programs must be sure to comply with order.

Under the CDC’s order, tenants are eligible for eviction protection if they provide a signed declaration form certifying under penalty of perjury that all of the following are true:

1.    The tenant has used best efforts to obtain all available government assistance for rent or housing (i.e., any governmental rental or housing payment benefits available to the tenant or any household member);

2.    One of the following is true:

·         The tenant expects 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);

·         The tenant was not required to report any income in 2019 to the IRS; or

·         The tenant received an Economic Impact Payment (i.e., a stimulus check) under the CARES Act;

3.    The tenant is unable to pay the full rent owed due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;

4.    The tenant is 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 non-discretionary expenses; and

5.    If evicted, the tenant 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 the tenant has no other available housing options.

The CDC’s order does not waive or cancel any rental payments or fees, penalties, or interest owed for failing to pay rent on time. Further, a landlord may require the tenant to pay any unpaid rent in full at the end of the eviction moratorium. Evictions for reasons other than nonpayment of rent (such as violating any other term of the lease, engaging in criminal activity on the premises, or damaging property) are still permitted. Individuals and organizations who violate the order are subject to criminal penalties, as well as fines ranging from $100,000 to $500,000 per violation.

Note that the order, which is issued pursuant to the CDC’s authority under the Section 361 of the Public Health Service Act (42 U.S.C. 264 and 42 CFR 70.2), does not prevent states and localities from adopting more protective eviction moratoriums, such as banning late fees and preventing landlords from reporting failure to pay rent to credit bureaus or collection agencies. This means that if your CAA’s state, city, county, or town has already prohibited evictions or implemented more protective measures for tenants, those orders are still in effect.

It is unusual for the CDC to issue an eviction moratorium order of this breadth, and legal challenges have already been filed asserting that the CDC exceeded its authority in doing so. CAPLAW will continue to monitor legal developments relating to the moratorium and issue additional guidance as needed.