New Guidance from the CDC on Evictions

In my last update I talked about how to deal with tenants who come to you with partial payments. If you didn’t see that post, click here to check it out.

Today I’m here to talk about some recent guidance from the CDC about their eviction moratorium, as it gives us a little more clarity on how things may be done. A joint group consisting of the CDC, the Department of Health & Human Services, HUD, and the Department of Justice issued a response to Frequently Asked Questions about the CDC Temporary Eviction Moratorium. I saw no surprises in their positions, but I appreciated the clarity, as their statements ran contrary to how some state courts are operating. I’m hopeful that that’s about to change. Here’s a link to the FAQ’s so that you can read them directly.

The FAQ’s reiterated some of the guidance that I’ve given in this space.

First, they made clear that you do not have to inform you tenants of the CDC regulation or the CDC Declaration Form. However, I still think that is likely a wise move in order to figure out your tenant’s intentions on signing the form. Because your next steps may be dependent on whether the tenant signs the form.

Second, the FAQs made clear that you may still file an eviction against any tenant who signs the CDC Declaration. As I’ve noted, the CDC regulation defines “evict” is any action to remove someone. So, landlords are allowed to initiate eviction proceedings against a tenant who signs the CDC Declaration Form, but they may not actually remove the tenant while the CDC regulation remains in place.

So, you may go ahead and file your eviction case against any tenant who has failed to pay, even those who have signed the CDC form in order to secure your place in line whenever the CDC regulation expires or gets overturned. If you do this, you may want to put a partial payment agreement in place during the interim. See this post for more information.

Finally, and most importantly, the FAQs state that “The Order does not preclude a landlord from challenging the truthfulness of the tenant’s declaration in any state or municipal court.” This has been the source of much confusion and controversy since the CDC regulation took effect on September 4. Many eviction judges have been refusing to hold hearings on whether the tenant is telling the truth on the CDC Declaration Form. This new guidance makes clear that they should be and that you, as a landlord, have a right to challenge your tenant’s claims on the form.

In most cases, you’ll be looking to challenge whether the tenant:

• has used best efforts to obtain all available government assistance for rent or housing;

• 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 expenses;

• 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. 

So, as you prepare your eviction case, you’ll be looking to put together evidence on these issues. Good facts would include: 

1. Informing your tenant of available assistance and them failing to apply;
2. Your tenant has continued to work;
3. Your tenant quit their job, rather than being laid off due to COVID;
4. Your tenant has not attempted to make partial payments;
5. Your tenant has failed to communicate with you for a long period of time.

I recently mentioned a lawsuit that the National Apartment Association joined in an attempt to have the CDC regulation overturned. The government recently filed a written response in that case. In attempting to justify the regulation, they argued that landlords may (1) initiate eviction proceedings and (2) attempt to show that the tenant has wrongfully claimed protections under the regulation. You can read their entire response here. The part that I’ve cited is on Page 42.

So, it should be clear at this point that court must consider whether tenants actually qualify for protection under the CDC regulation even when they’ve signed the form. As landlords, if you have a tenant who doesn’t qualify, but still signs the form, you’ll want to put evidence together that showing that they don’t qualify.

If you need help with that, reach out to your friendly neighborhood attorney. Have a great week.