By John G. Merna, Esq.
In an unprecedented move last week, The Center for Disease Control (CDC) ban evictions nationwide through the end of the year based on healthcare concerns due to the pandemic. Unfortunately, the CDC and the president failed to provide sufficient details about how it would work and to whom it would apply leaving many confused.
This blog will examine what is required under the current CDC eviction moratorium to qualify and the arguments and legal actions that are actually occuring challenging the CDC’s authority and the validity of the moratorium.
WHAT IS REQUIRED TO QUALIFY UNDER THE CDC’s EVICTION MORATORIUM?
The CDC’s Eviction Moratorium, which is effective September 4, 2020 through December 31, 2020, has several holes in it that can make it not applicable and subject the unsuspecting tenant to a court authorizing an eviction. Here are some of the requirements:
1) You are still required to pay rent if you can.
If the landlord could prove that the tenant has not permanently been effected financially, despite missing a payment or two, and could continue to make a monthly rent payment, it is possible that a judge could rule that the tenant is not complying with the order and grant the eviction.
2) All tenants are required to sign and deliver a declaration to the landlord, signed under penalty of perjury, stating:
- They have used best efforts to obtain all available government assistance for rent or housing;
- They either expect 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), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
- They are am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;
- They are 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;
- If evicted they 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 I have no other available housing options;
- They understand that they must still pay rent or make a housing payment, and comply with other obligations that they may have under the lease agreement, or similar contract. And that they further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected;
- And that they further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to state and local laws.
TOO MANY LOOP HOLES
The certification requirement made an effort to financially cap who the eviction moratorium applies to by establishing income limits. However, the moratorium still requires that you pay rent, even partial rent, where possible. If a landlord were to challenge this item alone he could file the eviction and let the judge decide if you are making your best effort.
The certification that you would “likely become homeless” is another loophole. If the landlord can provide evidence that you have undergone an eviction before and place the burden on you that you can prove you were previously homeless the court could also rule against you if that has not been the case. Further, if you come from a large family it would be difficult for the court to believe you don’t have some support.
Most importantly, the declaration is required to be signed under penalty of perjury. In other words, you could be fined, held in contempt, and even go to jail if the court finds what you have provided to the landlord is not truthful.
LEGAL CHALLENGES TO THE MORATORIUM
A case has already been filed in Georgia by a Virginia-based landlord challenging the CDC authority to override constitutional property rights, state and federal laws, and court authority. If successful, the whole moratorium will be invalidated. However, it is unlikely that such a case will be decided quickly.
Also, besides challenging any of the required disclosure/certifications as valid, a landlord may evict for reasons other than non-payment of rent such as violation of the occupancy agreement due to unauthorized persons residing at the location, destruction of property, disturbing of peace, use of the property as a business instead of residence or any other reason that might violate the lease agreement or any law in Virginia.
WHAT SHOULD YOU DO AND WHERE DO YOU STAND?
It is pretty clear that the CDC eviction moratorium guidelines make the eviction protection available to a very narrow category of tenants. You should review them at the links above on this page to make sure whether you feel the moratorium is applicable to you in all regards. Remember, the declaration has to be signed and submitted by all residents, not just those named on the lease.
Do your best. Landlords don’t like to turn over properties. Not only does it cost a lot of money, including the cost of the court eviction, but they are not guaranteed to get a better tenant. Pay what you can and show good faith. Good faith goes a long way. I hope that is still true in these hard times.
Have a “Plan B”. Bankruptcy can halt an eviction temporarily and it can eliminate the money you owe. If you are significantly behind and it is unlikely you will be unable to catch up then think ahead. You may need a bankruptcy at some point. However, you first priority is to have a place to go to regroup.
MERNA LAW OFFERS FREE BANKRUPTCY CONSULTATIONS IN-PERSON AND BY TELEPHONE, AFFORDABLE RATES, AND PAYMENT PLANS. GIVE US A CALL TODAY TO HELP YOU WITH YOUR “PLAN B”. 800-662-8813