Covid-19 Policy Update: CDC Eviction Moratorium

On September 4, 2020, in response to the Covid-19 pandemic, the Centers for Disease Control and Prevention (“CDC”) issued an order barring residential evictions to prevent further spread of the virus. The CDC reasoned that the eviction moratorium would facilitate the self-isolation of ill or at-risk individuals, assist with the implementation of state and local ‘stay-home’ orders and social distancing mandates, and prevent the spread of the virus threatened by increased homelessness and crowding in shelters. The CDC’s eviction moratorium was extended several times before finally expiring on July 31, 2021.  

On August 6, 2021, in response to the surge in Covid-19 cases attributed to the virus’ Delta variant, the CDC issued a new order, effective August 3, 2021, temporarily halting evictions in communities with “substantial or high transmission” of Covid-19. The new order will remain in effect until October 3, 2021. As of the date of the new order, the eviction moratorium applied to over 80% of counties in the United States (see a current map of covered counties here). Counties may be reclassified for coverage as their rates increase or decrease. 

The current eviction moratorium provides: “a landlord, owner of residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property” in a county which falls under the order’s community transmission parameters. A “covered person” (tenant, lessee, or resident) must provide their landlord a declaration signed under penalty of perjury which affirms that he or she is protected by the CDC’s temporary order. The individual must affirm that they meet each of the six (6) requirements listed in the order’s definition of coverage, and every adult whose name appears on the lease in question must provide the landlord with a completed and signed declaration form.  

The criminal penalties for violating the order are severe: for individuals, a fine of up to $100,000 (up to $250,000 if the eviction result in death, one year in jail, or both; and for an organization or company, a fine of up to $200,000 per eviction (up to $500,000 if the eviction results in death). Landlords may also expose themselves to civil liability by choosing to proceed with the eviction of a person protected by the order.  

In January 2021, the Texas Supreme Court issued an emergency order which placed much of the responsibility for compliance with the CDC order on Texas courts by directing judges to proceed with evictions only after a hearing and judicial determination as to the tenant’s coverage. Texas’ emergency order expired automatically on March 31, 2021 without any extension from the Court, resulting in a greater risk of liability for Texas landlords seeking to proceed with evictions.  The Texas Justice Court Training Center (“TJCTC”), which provides guidance and training to justices of the peace and constables across the state, has taken the position that the CDC moratorium is targeted at landlords, not courts, and advises courts to verify a landlord’s awareness of the moratorium and risk of liability before proceeding with an eviction. The TJCTC provides a sample script for judges in such cases, which states:  

“Before we begin, I wanted to make sure you are aware that there is a federal eviction moratorium issued by the CDC, currently scheduled to expire on October 3, 2021. This moratorium creates civil and criminal liability for landlords who evict tenants who are protected by the order. The moratorium does not prevent this court from moving forward with eviction cases if the landlord chooses to do so, and this court is not able to provide guidance as to whether or not an eviction case is covered by the moratorium. If you are unsure whether or not to proceed, you may consult with an attorney.” 

The order and lack of additional guidance from state authorities present quite the paradox for a landlord who desires to evict a non-paying tenant—they may pursue legal action to protect their civil rights at the risk of criminal liability. 

Under the current CDC order, a landlord is not precluded from pursuing eviction of a tenant/lessee/resident who is: (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).  The CDC clarifies that ‘trespass for failure to pay rent’ and ‘being infected with Covid-19’ are not qualifiers for the above exceptions. 

The CDC’s order has greatly impacted landlords dependent on rental payments to cover mortgages and other expenses. The larger, farther-reaching consequence is that the moderate to low-income would-be renter, or potential homeowner, is faced with greater difficulty in finding a residence within their means. With landlords unable to evict non-paying tenants, many landlords (and prospective landlords) are deciding to sell their properties, not just because of the current real estate boom, but also to avoid dealing with non-paying tenants in this current environment. Other low-income renters looking for a new lease (in single-family or multi-family dwellings) are finding they cannot afford the current rates because landlords have raised their rent in order to account for the rent they have not (and may not) received. State and federal programs may offer some relief for landlords, and Landlords may later recover civil damages from tenants for unpaid rent, but a tenant’s willingness to participate in a government program, the availability of government funds, or a tenant’s ability to pay on a judgment are not guaranteed.  

The CDC’s authority to extend the original order and issue the new order without additional congressional authorization has been under scrutiny. This issue reached the U.S. Supreme Court, in Alabama Association of Realtors et al. v. Department of Health and Human Services, which declined to address the CDC’s final extension of its original eviction moratorium because the issue reached the court only weeks before its July 31, 2021 expiration date. The Court’s order includes a statement from concurring Justice Kavanaugh agreeing with the lower court’s holding that the CDC’s order exceeded its statutory authority by issuing the nationwide eviction moratorium, and further opining that any further extension of the order would require “clear and specific congressional authorization”. During a White House press briefing on August 4, 2021, Jen Psaki, White House Press Secretary, addressed the issue by differentiating between an extension of the previous moratorium and the issuance of the new, “more limited” moratorium. On August 4, 2021, the Alabama Association of Realtors filed an emergency motion in the U.S. District Court for the District of Columbia, claiming that the new CDC order is an extension of the previous order, and therefore invalid under the court’s previous ruling.   

The CDC’s new order states that it “is subject to further extension, modification, or recission based on public health circumstances.” At the order’s expiration date, residential evictions (primarily for failure to pay rent) will have been halted for over a year. The Delta variant has led to a recent surge in Covid cases and hospitalizations; with no end in sight, the resulting trend of temporary extensions of the moratorium leaves landlords and tenants uncertain as to their futures. 

Kuiper Law Firm, PLLC will continue to monitor the CDC’s eviction moratorium and associated litigation; if you have any questions about how the information in this article may apply to you as a landlord, do not hesitate to contact us.