On late Tuesday afternoon, the Centers for Disease Control and Prevention (CDC) and the Department of Health and Human Services (HHS) announced an order to stop residential evictions to halt the spread of COVID-19. The order is currently scheduled to be published in the Federal Register on September 4. It becomes effective on publication and will last until December 31, 2020, unless extended.
The order notes that as of late August, there have been over 23 million cases of COVID-19 globally, resulting in over 800,000 deaths. It also states that, domestically, there have been over 5.5 million cases, which have resulted in over 174,000 deaths. Given the “historic threat to public health,” the order notes that “[e]viction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.” The order also notes that eviction moratoria help implement stay-at-home and social distancing orders, while also preventing homelessness which “increases the likelihood of individuals moving into close quarters in congregate settings, such as homeless shelters, which then puts individuals at higher risk of COVID-19.”
The order institutes a temporary eviction moratorium. It states that a “landlord . . . shall not evict any covered person from any residential property in any State or U.S. territory” in which there are COVID-19 cases. The term “covered person” includes any tenant who states—under the penalty of perjury—to their landlord, owner, or other person with the power to evict that the following conditions have been met:
- The person has used their best efforts to obtain available government assistance for rent or housing;
- The person meets any of the following three criteria:
- The person does not expect to earn more than $99,000 in annual income in calendar year (CY) 2020 (or more than $198,000 for joint tax returns);
- The person was not required to report any income in 2019 to the Internal Revenue Service (IRS); or
- The person received a “stimulus check” under the Coronavirus Aid, Relief, and Economic Security (CARES) Act;
- The person is unable to pay the full rent or make a full housing payment due to loss of compensable hours of work, a lay-off, or extraordinary out-of-pocket medical expenses;
- The person is making “best efforts” to make timely partial payments that are as close to the full payment as possible; and
- Eviction would render the individual homeless or force the individual to live in close quarters in a new congregate or shared living setting.
Despite the order, individuals are still obligated to pay rent or make applicable payments. The order does not prevent charging or collecting fees, penalties, and interest for late payments. Tenants may still be evicted for the following:
- Engaging in criminal activity on the premises;
- Threatening the health or safety of other residents;
- Damaging or posing an immediate and significant risk of damage to property;
- Violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or
- Violating any other contractual obligation (other than late fees, penalties, or interest).
This order does not apply in certain areas. It does not apply in any “State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection.” Additionally, the order does not apply in American Samoa—which has no reported cases—unless cases develop.
The order is not a rule as defined in the Administrative Procedure Act (APA), but is an “emergency action.” If it did qualify as a rule, the order notes that there is still “good cause” to dispense with the regular notice-and-comment process because of the public-health emergency.
There are certain criminal penalties for violating this order. A person violating the order may be subject to a fine of $100,000, one year of jail, both a fine and jail, or another lawful penalty, if the violation does not result in a death. If the violation results in a death, the person violating the order may be subject to a fine of $250,000, one year of jail, both a fine and jail, or other lawful penalty. An organization violating this order may be subject to $200,000 per event, if the violation does not lead to a death and $500,000 per event if the violation results in death. The Department of Health and Human Services is authorized to cooperate with and aid state and local authorities to authorize this order.
The order includes a declaration for tenants. A tenant must provide a copy of the declaration to their landlord, owner, or other individual who has the right to evict. Each adult listed on the lease must complete the declaration. The declaration must be true under a penalty of perjury.
A pre-publication copy of the order can be found here.
NAHRO continues to encourage Public Housing Authorities (PHAs), Section 8 landlords, and tenants to work together to minimize the financial impact of COVID-19. Tenants should contact their PHA notifying them of any reduction of income due to the pandemic. Landlords and PHAs should reach out and coordinate with tenants concerning unpaid rent. Best practices in preventing evictions include repayment agreements, retroactive recertifications and proactive communication with tenants.
Below are links to HUD and NAHRO eviction prevention resources:
Our advocacy must continue to ensure adequate resources that support your programs and provides rent relief for unassisted families. Use the NAHRO Advocacy Action Alert Center to send letters to your members of Congress and the Administration and let them know the critical role quality house and rental assistance plays as we continue to navigate the COVID-19 pandemic.
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