Federal Government issues guidance on CDC Eviction Moratorium

FAQ

On October 9, 2020, the Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, U.S. Department of Housing and Urban Development, and U.S. Department of Justice issued non-binding guidance in the form of a FAQ document about the Center for Disease Control’s eviction moratorium order.

What the CDC Order Does

The FAQ clarifies that the order prohibits any person with a legal right to pursue an eviction order from evicting for nonpayment of rent against any “covered person” from September 4, 2020 to December 31, 2020.

Eviction

The FAQ defines what the CDC means by “eviction” and they say it is an action to remove or cause the removal of a “covered person” from a residential property.  So this applies to residential and not commercial properties.  They point out that a foreclosure is not an eviction (sorry for all you landlords who might lose your building to foreclosure because tenants aren’t paying).  The FAQ provides that “eviction” is a State process and that the order is not “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.”  This is an interesting point: the guidance seems to suggest that an eviction case CAN BE FILED as long as the actual eviction is not enforced until after the CDC order expires on December 31, 2020.  Of course, you Illinois landlords need not worry about this because Gov. Pritzker has you covered.  As of right now, except in rare circumstances, you can’t even file an eviction case – at least until October 19, 2020. (Unfortunately, my best guess is that the Governor is going to extend that moratorium again, probably making public comment on it by the end of this week).  But, if the order expires, a landlord can still file a non-payment case.

Covered Person

The FAQ goes on to clarify what the CDC means by “covered person”.  A covered person is any person who is a resident of a residential property who provides a person who has a legal right to pursue their eviction with an appropriate declaration (under penalty of perjury) making certain allegations regarding five criteria defined by the order.  So, any tenant or occupant who provides a landlord with a declaration is a covered person who can not be evicted.

Declaration

A Covered Person must provide their landlord with a declaration.  All declarations must be signed and must include a statement that the covered person understands that they could be liable for perjury for any false or misleading statements or omissions in the declaration.  The declaration must confirm the following:

(1) The individual has used best efforts to obtain all available government assistance for rent or housing;

(2) The individual either (i) 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), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;

(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-off, or extraordinary out-of-pocket medical expenses2;

(4) The individual 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 nondiscretionary expenses; and

(5) Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or

Form declarations have been created and are available from the CDC and HUD.  The declaration can be transmitted in hard copy or electronically.  Interestingly, a landlord may challenge the truthfulness of a tenant’s declaration in court.  I predict that item number 1 is going to be the item that trips up many tenants.  You may be aware that the State of Illinois offered some significant rental assistance (about $150 million worth).  In fact, the State had extended the deadline to get that assistance to August 28, 2020.  That’s the same assistance that was “on its way” the Governor used as an excuse to extend the moratorium a few months back.  However, I know of many landlords who encouraged their tenants to sign up for that assistance and were met with the sound of crickets.

Case Timing

The CDC order went into effect on September 4, 2020. For any eviction based on nonpayment of rent filed before September 4, 2020 which, as of that date has not been completed (ie. with enforcement of an eviction), remains subject to the CDC order.  Thus, a tenant who has not yet been evicted can still provide a declaration to a landlord and can thereby become a covered person.  This could be a nightmare for landlords who have received an order for eviction that has not been enforced by the Sheriff before September 4, 2020 who receives a declaration from a defendant.  In such a case, the landlord would be obligated to cancel the eviction with the Sheriff.  Remember, the federal penalties for violating the order are severe.  Finally, it is clarified that evictions that occurred prior to September 4, 2020 are not subject to the Order.  I’m guessing that not too many Illinois landlords are going to be affected by this one- you can thank Gov. Pritzker for keeping you from getting any eviction orders for nonpayment of rent!

Rent

The CDC, demonstrating an AMAZING sense of humor, also confirm that the moratorium does not relive tenants of their obligation to pay rent.  Well, I’m sure that will help landlords!

Evictions based on something other than rent

The CDC clarifies that tenants can still be evicted for reasons other than the failure to pay rent.  The FAQ does indicate that a landlord cannot evict based upon a tenant’s threat to health or safety of other residents if the threat is based on a tenant’s exposure to Covid-19 – that is, you can’t evict a tenant because they have Covid-19.  I wonder out loud if you can evict a tenant who is recklessly exposing other tenants in a building to Covid-19 by not going into a reasonable quarantine?  Hmmmm.  That’s an interesting question (and one that any FAQ writer should have thought to address, but that’s just my musing).

Final Thoughts

There are a few other do-dads and bits in the FAQ.  One is that a landlord has no obligation to make a tenant aware of the CDC moratorium.  That’s a departure from the trend in newer laws like the Cook County Just Housing Amendment and the Chicago Covid-19 Eviction Protection ordinance requiring landlords to disclose, disclose, and disclose some more.  In the short time since the release of this FAQ, some tenants’ rights activists have claimed that these new rules are confusing and that the moratorium is too limited.  They prefer a blanket moratorium on eviction.  That’s a dangerous position that is a road to ruin for landlords.  That focus is incorrect.  Landlord support is what we need.  If government wants to do something, they need to get dollars into the hands of landlords.  Yes, tenants on unemployment got an extra $600 per week, but in many cases, their landlords still got nothing.  Illinois had lots of housing aid money.  The catch was that tenants had to apply for it.  Many didn’t (after all, how does money for their landlord help them if they don’t care how much they owe?).  The aid needed to be accessible to landlords without the need to have tenants cooperate.  Since the government is basically making landlords foot the bill for housing tenants during a pandemic, they need to figure out how to compensate the landlords.  It’s becoming a tired analogy, but we aren’t letting tenants take food from the Jewel for free because they need it.

About Richard Magnone

Co-founding member of Reda | Ciprian | Magnone, LLC, attorney at law and Illinois licensed lawyer since 1996.
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