As you may or may not be aware the CDC intends to Publish on September 4, 2020 an Agency Order Temporarily Halting Residential Evictions to Prevent the Spread of COVID-19.

While we will all continue to interpret the Agency Order and look for guidance from every source, here is what we know so far.

At approximately 4:15pm on September 1st, the CDC issued an agency order to temporarily Halt Residential Evictions which it anticipates and plans to publish on September 4, 2020.  This means the Order will be in effect starting September 4th and will remain in effect until December 31, 2020 unless it is extended or rescinded.

This Order applies to all Tenants, not just those under the CARES Act, who submit an affidavit to their landlord indicating they meet the following criteria:  1.  The Tenant has used his best efforts to obtain all available government assistance for housing.  2.  The individual makes less than $99,000 a year or $198,000 if married filing jointly, was not required to report any income in 2019 or received a stimulus check pursuant to Section 2201 of the CARES Act.  3.  The Tenant is unable to pay rent due to loss of income, loss of work hours, lay-off or extraordinary out of pocket medical expenses.  4.  The Tenant is using his best efforts to make timely partial payments.  5.  Eviction will likely render the Tenant homeless or require that the tenant live with others in close quarters.

The Agency Order indicates a landlord may not evict any covered person (see above paragraph) for nonpayment of rent.  The Landlord may continue to charge late fees and other penalties for nonpayment of rent.

For a Tenant to take advantage of this Agency Order every adult tenant listed on the lease must complete and provide to the landlord an executed copy of the Declaration Form, which states under oath, that the tenant meets the five criteria.  The Landlord is not entitled to any verification of the information presented on the Declaration Form.

This does not include foreclosure on a home mortgage.  This applies only to the nonpayment of rent.

What we don’t know.

The Agency Order indicates it does not apply to other lease violations such as Health and Safety, Immediate issues and Noncompliance Issues.  It is not clear if it applies to Non-renewal of lease and 30-day notices.  While my reading of the Agency Order would imply we can continue with non-renewal actions, it appears from what I have heard that the Courts will consider non-renewal cases as protected under the Agency Order.

The Agency Order is unclear as to what “shall not evict any covered person” means.  Can we still provide notices?  Can we still file for court?  It appears clear it would apply at a minimum to the Execution of the Writ of Restitution.  The courts, again it appears, will dismiss any case in front of them if and when the Declaration Form is signed and presented to the Landlord.

The Agency Order does not expressly identify if Writs of Restitution already filed for but not yet executed fall under the protection of this order.  It appears the courts will consider the Agency Order to apply to all cases no matter the status; meaning even if we have obtained an Order on a Motion to Compel the Writ will be stopped if the tenant completes and provides to the Landlord the Declaration Form.

Last, but certainly not least, we don’t how the Federal Government thinks this action is Constitutional.  I expect we will see lawsuits challenging this Agency Order immediately.

After review of the Agency Order, I am making the following recommendations:

  1. Continue to issue notices of nonpayment of rent as long as the tenant has not provided you with an executed Declaration Form by all adults listed on the lease.
  2. Continue to send evictions to our office as long as the tenant has not provided you with an executed Declaration Form.
  3. Contact our office immediately if you have sent over an eviction and the tenant provides you with an executed Declaration Form whether the tenant provides the Declaration before or after the court hearing.
  4. Read any emails from our office or newsletters for the most up to date information regarding the Agency Order.

We will continue to move cases forward until you receive the Declaration Form.  Once we know you have a Declaration Form, we will stop the case to keep the property owner from incurring any additional expenses or costs which we may not be able to recoup from the tenant.

We will be closely watching any guidance that comes out on this Agency Order and any and all cases that we anticipate will be filed shortly challenging the Constitutionality of this Agency Order.

As Always, please reach out to us with any questions or concerns.

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