Update on CDC Eviction Moratorium

Dear NAA Members,

As you know, the U.S. Centers for Disease Control and Prevention (CDC), at the direction of the President, filed an order in the Federal Register yesterday to temporarily halt residential evictions to prevent the further spread of COVID-19. National Apartment Association (NAA) members should prepare for the order to go into effect this Friday, September 4. It will bar evictions of renters in residential housing until December 31, 2020.

Here is what you need to know about the order:

• It applies to virtually all rental housing providers and prohibits any eviction action to remove a renter from their housing during the covered period, so long as the renter provides the required declaration to their housing provider.
• The order does not prevent evictions based on the lawful reasons articulated in the order, other than nonpayment of rent.
• Outstanding balances will become due when the moratorium ends and housing providers may charge late fees or other penalties for nonpayment of rent.
• To be eligible for the order’s protections, a renter must provide a declaration under penalty of perjury to their housing provider (an example form is contained in the order) indicating the following:
  • The individual has used best efforts to obtain rental assistance;
  • The individual expects to earn no more than $99,000 (no more than $198,000 when filing jointly); was not required to report income in 2019 to the IRS; or received a stimulus check pursuant to the CARES Act;
  • The individual is unable to pay their full rent due to a number of factors that remain unconnected to COVID-19;
  • The individual is using best efforts to make timely partial payments; and
  • Eviction would likely render the individual homeless or force the individual to move into and live in close quarters in a new congregate or shared living setting because the individual has no other available housing options.
• Any person or organization that violates the order may be subject to up to $500,000 in fines per violation and/or jail time. Enhanced penalties apply if the violation resulted in death, at the discretion of the U.S. Department of Justice. 
• Jurisdictions that have an eviction moratorium providing the same or greater level of public-health protection than the CDC order are exempt from its requirements.

We understand NAA members are deeply concerned about the Administration’s actions, and the complexity of the language in the CDC’s order will amplify the strain of operating rental housing and sustaining your businesses during these difficult times. NAA is developing operational guidance to assist members in following the requirements of the order.

NAA is also conferring with legal counsel to understand the enforceability of this measure, how it will interact with existing federal, state and local requirements and a number of other ambiguities in the text, such as whether the order applies to eviction filings or is limited to the physical removal of residents. Other outstanding issues include whether housing providers may require proof to support the resident’s declaration; if the declaration applies as an affirmative defense to an eviction action; and how these requirements apply to holdover tenancies, non-renewals and termination notices. Adding another layer of concern, we realize there may be vastly different interpretations of the language by individual judges. Without clear guidance from the courts, these issues will be adjudicated on a case-by-case basis. 

Finally, NAA is developing our advocacy response to this action by the Administration – be assured that all options are on the table. In the immediate term, we will urge Congress and the Administration to return to the negotiating table and appropriate sufficient emergency rental assistance to fill the gap created in thousands of rental housing communities around the nation. The entire NAA membership will be engaged in this effort so be on the lookout for a call to action when Congress returns after Labor Day to add your voice to our efforts on Capitol Hill. We are doing everything possible to support the industry and explore avenues to respond to the challenges that lie ahead. As the situation and our understanding of the order continues to evolve, we will keep you abreast of new developments as we consider paths forward from operational, legislative, public relations and possibly legal perspectives.

Stay safe and well,