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CDC Temporarily Halts Residential Evictions Nationwide in Effort to Stop Further Spread of COVID-19 CDC Temporarily Halts Residential Evictions Nationwide in Effort to Stop Further Spread of COVID-19

CDC Temporarily Halts Residential Evictions Nationwide in Effort to Stop Further Spread of COVID-19

On September 1, 2020, the Centers for Disease Control and Prevention (“CDC”), located within the Department of Health and Human Services (“HHS”), announced that it was issuing an Order to temporarily halt residential evictions to prevent the further spread of COVID-19. The Order becomes effective on September 4, 2020 and will remain in effect through the remainder of the year.

Applicability & Protections

The Order is broader than the previous eviction moratorium under the CARES Act, which applied only to federally-funded housing and expired in late July. Eligible renters include those who qualified for a stimulus check under the CARES Act and those who make less than $99,000 this year ($198,000 if filing jointly). Renters will still have to pay rent and fulfill any other obligations under the lease. The Order also does not prevent the assessment or collection of late fees, and tenants may be evicted for reasons other than failure to pay rent.

State and local governments can still implement greater tenant protections, and the Order will not apply in any area where equal or greater protections exist.

Requirements

To invoke the Order’s protections, a tenant must execute and deliver to the landlord a declaration in a form substantially similar to that provided in the Order. According to the Order, every adult listed on the lease must execute and deliver the declaration. The declaration must include the following statements made under penalty of perjury:
 
  1. The declarant has used best efforts to obtain government housing assistance.
  2. The declarant expects to earn no more than $99,000 for calendar year 2020, or no more than $198,000 if filing jointly; was not required to report income in 2019; or received an Economic Impact Payment (stimulus check) under Section 2201 of the Cares Act.
  3. The declarant is unable to pay the full rent due to substantial loss of household income, loss of work hours or wages, job loss, or extraordinary out-of-pocket medical expenses.
  4. The declarant is using best efforts to make timely partial payments as close to full payment as possible, taking into account other nondiscretionary expenses.
  5. Eviction would likely make the declarant homeless or force the declarant to move into close quarters or shared living because no other options exist.

Penalties

Violation of the Order may result in criminal penalties for an individual or organization, which differ depending on whether the violation results in a death. For individuals, where the violation does not result in a death, fines of up to $100,000 or one year in jail, or both, may be imposed. Where the violation results in a death, fines of up to $250,000 or one year in jail, or both, may be imposed. An organization violating the Order is subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death.

Authority

The Order is an emergency action issued under Section 361 of the Public Health Service Act and 42 C.F.R. § 70.2. Section 361 authorizes the Secretary of HHS to make and enforce regulations to prevent the entry and spread of communicable diseases from foreign countries into the United States and between states.  And 42 C.F.R. § 70.2 provides that whenever the Director of the CDC determines that measures taken by state health authorities are insufficient to prevent the spread of communicable diseases, the Director may take measures to prevent the spread of the diseases as he or she deems reasonably necessary.

The Order indicates that the eviction moratorium will help prevent the spread of communicable diseases by facilitating self-isolation by people who become ill or who are at high risk for severe illness from COVID-19. It also notes that homelessness increases the likelihood that individuals will move to congregate settings putting them at higher risk of contracting COVID-19.

Enforceability

The CDC’s Order is one of the broadest exercises of authority that the federal government has taken related to the pandemic to date. There are already questions regarding how this Order will be enforced and whether the CDC has the authority to issue such a broad order. For starters, as discussed above, the authority for the Order is Section 361 of the Public Health Service Act and 42 C.F.R. § 70.2, both of which allow HHS and the CDC to take measures to prevent the entry and spread of communicable diseases. Although the Order attempts to tie the eviction moratorium back to this purpose, it is unclear exactly how related halting evictions and stopping the spread of COVID-19 really are.

Indeed, 42 C.F.R. § 70.2 provides specific examples of measures that may be reasonably necessary to stop the spread of disease, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals. Although the reasonable measures may not be limited to these examples, they are a far cry from halting residential evictions.

Moreover, the same provision also requires that the Director of the CDC determine that the measures taken by state health authorities are insufficient to prevent the spread of disease before he or she can act. The Order expressly makes this finding and states that states and localities that have not met or exceeded the Order’s protections are insufficient to prevent the spread of COVID-19. States may take issue with this conclusion and argue that they’ve taken sufficient measures or that an eviction moratorium does little to stop the spread of COVID-19.

It is also not yet clear which states and localities are covered by the Order. For example, California recently enacted an eviction ban that is effective through January 2021 and provides some relief for back rent, making it arguably more protective then the Order. However, it also requires renters pay 25% of their scheduled rent payments, making it arguably less protective. The procedure under which the Order was adopted is also likely to be challenged. The Order itself indicates that it is not a rule within the meaning of the Administrative Procedure Act (“APA”) but rather an emergency action. However, challengers are likely to claim that this is a rule that should have gone through notice and comment, as well as a delay in its effective date. The Order expressly dispenses with those requirements, even if the Order is found to constitute a rule, because delay would permit the occurrence of evictions—potentially on a mass scale—that could put individuals at higher risk of COVID-19 and endanger public health.

Finally, there may be difficulties in how the eviction moratorium is actually enforced. If landlords attempt to evict a tenant who meets the Order’s criteria, it will be up to a local court to determine whether the tenant falls under the Order’s protection. The Order authorizes the U.S. Department of Justice to initiate court proceedings as appropriate to seek the imposition of criminal penalties, but it is not clear how this would work in practice.

For now, landlords and tenants should make themselves familiar with all of the rules and requirements set forth in the Order. Ice Miller attorneys are ready to assist with questions you may have regarding your rights and obligations under the CDC’s Order. Please feel free to reach out to our attorneys with any questions you may have and to visit our COVID-19 Resource Center here.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
 
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