What Landlords Need to Know About the Federal Eviction Moratorium

In September, the Centers for Disease Control and Prevention (CDC) issued a temporary nationwide eviction moratorium on most evictions for nonpayment of rent to curb the spread of COVID-19. The CDC stated that the moratorium, which is set to end December 31, 2020, would help reduce the spread by allowing people to follow stay-at-home orders and social distancing measures. It’s also intended to reduce homelessness and in turn, people moving into congregate housing like homeless shelters, which can increase the spread of the virus. The moratorium, as it currently stands, covers tens of millions of renters across the U.S.

The following is an overview of the moratorium; please note that this is for informational purposes only and is not intended as legal advice.

Does the Federal Moratorium Halt All Evictions?

The moratorium only covers evictions due to non-payment of rent and other fees or charges; landlords can still move to evict bad faith tenants. Any evictions that were initiated before September 4, 2020, that haven’t been completed are subject to the moratorium. The reasons a landlord can still move to evict a tenant includes:

  • Conducting criminal activity on the property
  • Threatening the health or safety of the other residents
  • Damaging or posing an immediate and significant risk of damage to the property
  • Violating applicable building codes, health ordinances, or other regulations related to health and safety
  • Violating any contractual obligation other than the timely payment of rent, late fees, penalties, or interest

The CDC guidance states that landlords may initiate eviction proceedings at any time, however, tenants covered under the order cannot be evicted until the order expires on December 31. If you do choose to evict during the moratorium period, make sure you follow all local procedures but be aware that the process may take longer than normal. In jurisdictions that have a local eviction moratorium, the stricter of the two moratoriums is likely to apply, although the CDC hasn’t provided clear guidance regarding this. You can find an up-to-date list of the state and local eviction moratoriums that are currently in place here.

Does the Federal Moratorium Cover All Forms of Rental Housing?

Eviction and Mask

The CDC order covers all standard rental housing, including mobile homes or property in a mobile home park. Some types of housing are exempt; these include individual hotel rooms, motels, or temporary guest home rentals. Your state or local government may have eviction protections in place for the federally exempt housing, so it’s recommended you research local applicable laws if you own these types of rental properties.

How Do Renters Qualify for Eviction Protection?

Tenants are not automatically covered by the moratorium; to qualify for eviction protection, they must essentially “opt-in”. This is done by filling out and submitting a form to their landlord stating that they’ve lost income due to the coronavirus pandemic and have made an effort to look for financial assistance. Translations of the form (in several languages) can be found here.

The CDC recommends that each adult listed on the lease, rental agreement, or housing contract should complete and sign the form, although tenants who file a joint tax return may submit a single form. Landlords are not required to make their tenants aware of the CDC order, but they must comply with it.

Other qualifications for the moratorium include:

  • Earning no more than $99,000 annually (or $198,000 if filing jointly) in 2020, or the tenant wasn’t required to report income to the IRS in 2019, or received an Economic Impact Payment
  • The tenant is unable to pay rent in full due to a loss of income, loss of work hours, or extraordinary (exceeding 7.5% of the household’s adjusted gross income for the year) out-of-pocket medical costs
  • The tenant is doing their best to make timely partial payments that are as close to the full rent payment as possible.
  • It’s likely the tenant would become homeless, need to live in a shelter, or would have to move in with another person if they were evicted

Tenants should also be aware that they will still be responsible for paying all back rent and fees that accumulated during the moratorium.

If a landlord violates the moratorium, they may be subject to a fine of up to $100,000, one year in jail, or both. If the violation somehow results in the death of a tenant, the fine is increased to $250,000. If an organization is found violating the moratorium, it may be subject to a fine of $200,000 per violation or up to $500,000 per violation if it results in the death of a tenant.

Can Landlords Challenge a Tenant’s Declarative Statement?

On October 9, the CDC issued new guidance for the moratorium, stating that landlords could challenge their tenants’ declarations and initiate eviction proceedings at any time. However, the CDC doesn’t give any guidance on the standards or procedures for such a challenge, so it’s likely the burden of proof will rest on the landlord in court, who will need to prove that the tenant isn’t being honest about their financial situation. Anyone who makes false claims to be covered by the moratorium may be subject to criminal penalties under 18 U.S.C. § 1621 (perjury) or other applicable criminal law.

The CDC guidelines are fairly straightforward, but if your state or local government has also enacted a local eviction moratorium, you should review your local laws before moving to evict a tenant. Be sure to keep detailed documentation on the reasons for eviction, as well as all your communications with the tenant. If you’re uncertain of how to proceed with eviction in your area, consult with legal counsel to ensure that you’re taking the right steps and conducting the process legally.

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