CDC Eviction Moratorium Struck Down By U.S. Supreme Court

Late Thursday, August 26th, the U.S. Supreme Court struck down the CDC's latest version of the Eviction Moratorium which was set to expire on October 3, 2021. The Supreme Court's conservative majority stated that the temporary eviction ban exceeded the CDC's authority to combat communicable diseases, which resulted in landlords' having to bear the pandemic's costs, much to their detriment. 

The Court wrote that "The moratorium has put . . . millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery.  Many landlords have modest means.  And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership - the right to exclude."

The Court again reiterated that such an eviction ban would need to come from Congress via legislation not the President or one of his agencies.

So what happens now?

We move forward and wait to see if Governor Evers issues his own eviction moratorium in Wisconsin like they have done in New York and California.  I assume that he will.

We also will have to wait and see what each Wisconsin county does in response to this decision.  During the short period when there was no federal moratorium in early August, for instance, Milwaukee County Circuit Court while granting evictions for non-payment of rent, still added a 2 week "stay" without basis with regards to executing the writ with the Sheriff.  I anticipate we will see something similar again. I should find out shortly as my firm has several cases this afternoon.

Below is the press release from the AASEW regarding the Court's decision, cautioning landlords from immediately filing for eviction if the tenant truly has been impacted by COVID-19 and if the landlord wants to be able to recoup the past due rent. 

For Immediate Release
Re: US Supreme Court Orders An End to the CDC Eviction Moratorium
The Apartment Association of Southeastern Wisconsin (AASEW) has the following observations about yesterday’s decision by the US Supreme Court which ended the CDC eviction moratorium.
• Little should change with or without the CDC moratorium. It remains in the owners’ and renters’ best interest to work together to get the Emergency Rental Assistance funding. The only reason to evict for nonpayment at this time is if the renter refuses to apply for ERAP or does not qualify due to no loss of income. In Milwaukee or Waukesha Counties, renters and owners can apply at Community Advocates. City of Milwaukee residents can also apply at SDC.
• The statewide WERA program under the guidance of the Dept. of Administration in Madison is doing a very competent job in getting rent assistance out promptly in smaller municipalities.
• Contrary to dire predictions by tenant advocates, there will NOT be a “tsunami” of eviction filings in Wisconsin or in most parts of the country. There will NOT be 11 million people suddenly made homeless.
• Local housing providers have shown great patience since the CDC moratorium first went into effect in September 2020. The most recent data show that eviction filings are down 47% in Milwaukee County since the moratorium began. Filings could increase to normal levels, especially considering that some renters have paid no rent at all.
• The AASEW has urged our members and all landlords to abstain from filing a case in court and to try mediation first, where available.
• The AASEW is a partner in Milwaukee’s Rental Housing Resource Center, which has gotten national attention for its unique work in creating a coalition of housing providers, tenant advocates such as Legal Aid and social welfare agencies. All of these partners continue strong efforts to get rental assistance paid and to avoid evictions whenever possible. Many millions of dollars in rent relief are still available.
• People who are vaccinated against the coronavirus have strong protection against the Delta variant compared to those who aren’t. Any renter who faces a possible eviction should certainly get vaccinated immediately, especially now that the Pfizer vaccine has been fully approved.
• False narratives have been promoted by national tenant advocates. Landlords almost never evict a tenant who is only a few hundred dollars behind on rent. The average eviction judgment for unpaid rent in Wisconsin is over $2600. Only 2.5% of eviction judgments are ever paid.
• The Eviction Lab of Princeton University has launched a harmful campaign via Twitter which tells tenants that their first priority is to “fight” their landlord in court. The AASEW does NOT recommend a combative approach to landlord-tenant relations. Instead tenants should first call their landlord and then apply for rent assistance.

For further information contact
Atty Heiner Giese, AASEW Legal Counsel, hgiese@ameritech.net
Tim Ballering, AASEW Board member, tim@apartmentsmilwaukee.com
Atty Tristan Pettit, AASEW Board member, tpettit@petriepettit.com

CDC Announces A New, Temporary, Limited Eviction Moratorium Through October 3rd for Counties With Substantial and High Rates of Covid Transmission

Well that didn't take long.  Not even two full business days after the CDC's Eviction Moratorium ended and now we have another moratorium in place.  

On Tuesday, August 3, 2021 at the direction of President Biden, the CDC announced a new, temporary, limited federal eviction moratorium through October 3, 2021. This new Order is limited to counties that have a substantial or high rate of community spread of Covid.  This covers counties such as Milwaukee, Dane, Waukesha, Ozaukee, Racine, Eau Claire, and Dodge counties, to name just a few.  

So what does this mean?

The bulk of the new Order is the same as the old order.  It only prohibits the filing of eviction actions for the non-payment of rent if the tenant completes and provides the housing provider with a written declaration.  If you would like to learn more about the basics of this new eviction moratorium Order please refer to my prior blog post on the earlier moratorium .  

Below is a summary of some of the new aspects of this more targeted eviction moratorium.

1. The new Order only applies to US Counties experiencing substantial and high levels of community transmission levels of SAR-CoV-2 as defined by the CDC, as of August 3, 2012.

2. If a US county that is not covered by this Order as of August 3, 2021, later experiences substantial or high levels of community transmission then that county will become subject to this Order. 

3. If a US county that is covered by this Order no longer experiences substantial or high levels of community transmission for 14 consecutive days, then this Order will no longer apply in that county, unless and until the county again experiences substantial or high levels of community transmission. 

4.  Any evictions for nonpayment of rent initiated prior to the issuance of this Order but not yet completed, are subject to this Order. 

5. Any tenant, lessee, or resident of a residential property who previously submitted a Declaration, still qualifies as a "covered person" and who is still present in a rental unit, is entitled to protections under this Order. 

6. Any eviction that was completed before the issuance of this Order including from August 1 through August 3, 2021 is not subject to this Order, as it does not operate retroactively. 

7. This Order does not preclude a landlord from challenging the truthfulness of a tenant's declaration in court, as permitted under state or local law. 

8. This new Order is effective as of August 3, 2021 and will remain in effect through October 3, 2021.

I'm sure that many of you are saying to yourselves, "But, I thought the US Supreme Court already stated that the CDC overstepped its statutory authority when it ordered the prior federal eviction moratorium?"  That would be correct, but arguably since this Order is more narrow and only applies to counties with substantial or high community spread, the CDC will argue that the prior Supreme Court decision is not applicable to this new Order.  Furthermore, I'm certain that any new lawsuits filed against the CDC with respect to this new Order will take longer than October 3, 2021, when the new Order is supposed to end, to get through the court system and back in front of the US. Supreme Court.

As I said in earlier blog posts, this is nothing but kicking the proverbial can down the road.  It still does not solve any of the underlying issues.  With this new Order not only has the can been kicked a little further down the road, but the can has now made a turn around the corner, and is starting to go down yet a different road.  

The CDC's Eviction Moratorium Has Finally Ended . . . Now What?

The CDC's eviction moratorium finally ended at midnight on July 31, 2021.  

The moratorium could not be extended due to the U.S. Supreme Court's decision that the CDC exceeded its statutory powers and didn't have the right to issue an eviction moratorium in the first place.  Thus, any future federal moratorium will need to be created by Congress via legislation.  Congress tried to organize something in an attempt to pursue legislation late last week but did not have enough people on board to move forward.

So what happens now?

Congress could still try to pass legislation creating another eviction moratorium in the future.  From what I have read to date, this is unlikely however.  There is also a chance that the Governor could try and create another state eviction moratorium as he did last year.  The President is urging all states that do not already have a state eviction moratorium in place to create one.

So we are back to square one, except now we have so many more tenants that have not paid rent and an accumulation of rent arrearage that is truly staggering.  We also have more and more landlords in trouble, and if it is not too late already, who cannot afford to wait any longer.  It is not a good situation by any stretch of the imagination.  So how do we move forward from here?  

One option, and probably the best option if your tenant is willing to cooperate and the only issue is your tenant's inability to pay rent, is to work with your tenant to apply for Emergency Rental Assistance funds (ERAP).  There are still millions of dollars available to be distributed to housing providers.  This option is certainly preferable for most landlords, tenants, and the community at large, but the process takes time.  Community Advocates, which is distributing ERAP funds for Milwaukee and Waukesha counties, estimates that once an application is assigned to an employee until the time that the housing provider receives funding will be approximately 30 days.  But there can be a delay in assigning an employee to handle the application and that unfortunately extends the waiting period.  SDC, which is administering the ERAP funds for the city of Milwaukee has a similar waiting period.  Additionally, as many of you have learned the hard way, the application process can take some time to complete and can easily get derailed by an uncooperative tenant or missing documentation. 

Another benefit to working with your tenant to apply for ERAP funds is that this option is pretty much the only way that you will be guaranteed to be paid your past due rent.  ERAP funds can cover up to 12 months of rent arrears as well as 3 future months of rent, as long as the tenant continues to reside in the rental property.  If the tenant vacates, or you evict the tenant, you will not be eligible to receive the ERAP funds.

While applying for ERAP funding has a lot of benefits, it also has a rather large negative side in that it requires the landlord to be patient and wait even longer to receive monies that were due months and months ago.  Many landlords are not able to wait any longer.  Many aren't willing to wait any longer.

A second option is to attempt to mediate a resolution of some sort without the need of filing an eviction.  
Mediate Milwaukee has indicated that they are willing to get involved, at no financial cost to the housing provider, and perhaps they can either convince the tenant to cooperate in the ERAP application process or mediate some other resolution such as a move-out date without the need for the landlord to file an eviction. 

The third option is to evict.  For tenants that refuse to cooperate with the ERAP application process, this is the route that may be necessary.  While the landlord can initiate the application process, the tenant must cooperate in order for the money to be paid out.  Eviction may also be the only option if the tenant is engaging in non-rent related breaches, such as criminal activity,  that are causing disruption to other tenants and/or damage to the landlord.  Again, a landlord will not be able to recoup his/her lost rent if eviction is pursued. 

It is also important to not that the eviction process may take longer than usual as the Courts have never encountered such a scenario as we are currently facing.  I have read that there is a backlog of approximately 3,000 evictions in Milwaukee County which have been repeatedly adjourned each time that the moratorium was extended.  Most of these cases are scheduled to be heard in August or early September. Despite this volume, Milwaukee County has reserved spots in its daily calendar to slot in newly filed evictions.  Nonetheless, I expect the delays to get a court date will be longer than they were during pre-Covid times.  Pursuing an eviction also adds additional financial costs to the landlord, not to mention the many negative consequences an eviction has on a tenant, and disruption to tenant's family etc.  

I am not standing in your shoes, so I cannot determine what is the best option for you.  I know several landlords that have already been pushed so far that they have had to sell their properties.  I also know other landlords that are livid that they have had to use up their savings and retirement accounts to house tenants that are unwilling to even make the effort to assist the landlord in completing the ERAP application.  There are no winners here - just losers.

If you are in a position that you can wait a month or more to receive the ERAP funds, again this most likely is the only option that you will have of being made whole.  It also will be the least costly from a financial standpoint as you won't incur the eviction filing costs and the costs to turn the unit over.  But for those of you that have uncooperative or disruptive tenants, who also may not be able to pay rent, you are between a rock and a hard place and have no good option.

One place to look for assistance is the Rental Housing Resource Center which is a collaboration of various stakeholders in the housing community including the Apartment Association of SE Wisconsin.  There is no one perfect solution for everyone at this time unfortunately but hopefully there will be enough solutions available to help everyone.

T

CDC Extends Eviction Moratorium Another Month

We have just learned that the CDC will extend the Moratorium another 30 days through the end of July.  It has been reported that this is the last extension of the moratorium that will be granted by the CDC.

There is now the possibility that the U.S. Supreme Court could rule on the lawsuit brought against the CDC for overreaching with the CDC moratorium.  If the Supreme Court were to rule against the CDC, this would curtail future governmental administrative agencies from similar overreach in the future.  So the CDC is taking a big chance with this extension.

In the meantime please remember that there are Emergency Rental Assistance Payments available through Community Advocates and the SDC.  We have recently learned that the delay with rent assistance checks from Community Advocates is that they are waiting for the next contract and allotment from Milwaukee County.  So it appears that the delay is on the County and not CA.  CA believe that all pending checks that they haven’t already switched to other funding sources will be going out soon however.

Tristan and Jen

U.S. District Judge Overturns CDC's Eviction Moratorium But Stays Decision Pending Appeal

By Attorney Jennifer M. Hayden of Petrie + Pettit S.C.

As you may have heard, on Wednesday, May 5th, a U.S. District Judge in Washington D.C., the Honorable Dabney Friedrich, overturned the Center for Disease Control and Prevention’s nationwide eviction moratorium and then a few days later granted the U.S. Department of Justice's Emergency Stay Pending Appeal.  This effectively "holds" Judge Friedrich's ruling until such time as the appellate court can hear the appeal.

The net effect is that the CDC's eviction moratorium will remain in effect for now and most likely through June 30, 2021, when it was set to expire, unless the appellate court makes and earlier ruling.  

To learn more about the status of the CDC eviction moratorium, the litigation regarding same, and how the courts are interpreting the moratorium and the future of evictions attend the AASEW's next virtual membership meeting on Monday, May 17, 2021 entitled "The Future of Evictions."

FTC States That Landlords That Evict or Threaten to Evict Tenants Without Advising Them of Their Rights Under Eviction Moratoria May Be Engaging in Deceptive and Unfair Practices

On March 29, 2021, the Federal Trade Commission (FTC) and the Consumer Financial Protection Bureau (CFPB) issued a joint statement saying that Landlords that evict or threaten to evict Tenants without advising the Tenants of their rights under the various eviction moratoria may be engaging in deceptive and unfair practices and will be monitored and investigated. 

The FTC and CFPB added that there have been "reports that major multistate landlords are forcing people out of their homes despite the government prohibitions or before tenants are aware of their rights."

The joint statement goes on to say that "both agencies will be monitoring and investigating eviction practices, particularly by major multistate landlords, eviction management services, and private equity firms, to ensure that they are complying with the law.  Evicting tenants in violation of the CDC, state, or local moratoria, or evicting or threatening to evict them without apprising them of their legal rights under such moratoria, may violate prohibitions against deceptive and unfair practices, including under the Fair Debt Collection Practices Act and the Federal Trade Commission Act.  We will not tolerate illegal practices that displace families and expose them -- and by extension us -- to grave health risks."

So what does this mean to landlords?  It means that you should add some language to any notice that you serve a tenant, whether that be a 5-Day, 14-Day, 28-Day or 30-Day notice related to the non-payment of rent or any other non-rent related breach, advising your tenant that they may have protections under the CDC Eviction Moratorium or any other state or local moratoria that is applicable.

It also means that landlords should add similar language in every eviction complaint that they may file  as well as any other communication with your tenant that mentions eviction or the threat of eviction.

While you may not be a "major multistate landlord" you certainly don't want to be on the wrong side of an investigation by the FTC or CFPB.

CDC Extends Eviction Moratorium Until June 30, 2021

On Monday, May 30, 2021, the CDC Issued an Order extending the Eviction Moratorium until at least June 30, 2021.

The "guts" of the Order remain the same from the November 2020 Order which I have previously discussed in an earlier blog post.

Some of the modifications that were made in this most recent Order include the following:

1. Moratorium is extended until June 30, 2021

2. A signed Declaration by a tenant submitted under a previous order remains valid notwithstanding the extension and modification of the Order.  Covered persons do not need to submit a new declaration under this most recent Order.

3. While the Order does not prohibit evictions for engaging in criminal activity while on the leased premises, covered persons may not be evicted on the sole basis that they are alleged to have committed the crime of trespass (or similar state-law offense) where the underlying activity is a covered person remaining in a residential property despite nonpayment of rent.

4. Individuals who are confirmed to have, who have been exposed to, or who might have COVID-19 and take reasonable precautions to not spread the disease should not be evicted on grounds that they pose a health or safety threat to other residents.

As usual some of the language of the Order addressing the modifications is not as clear as everyone would like.  It will take time for this to flesh out.  The Courts and those of us that spend time in Court are learning new things every day.

While the extension of the Order may not be good news to all housing providers, it was certainly anticipated, since so much money has been set aside for emergency rental assistance.  Back in December of 2020 an additional $25 billion was set aside for emergency rental assistance in the U.S. for the payment of rent and rental arrears.  An additional $21.55 Billion in emergency rental assistance was provided under the American Rescue Plan in 2021 for renters and housing providers in the U.S.  

Milwaukee County and Waukesha County have already received the emergency rental assistance from the first $25 Billion and it is being disbursed by Community Advocates and other agencies.  Also, Landlords are allowed to complete the application for their residents for this new round of money, although I have heard that this is not always being followed.  So if your resident owes you past rent and/or is unable to pay their current rent make sure that you are reaching out for assistance.  Some of the agencies that my clients have had the most success with have been Mediate Milwaukee and Community Advocates.

With so much money in the pipeline and the third round not yet even available, I foresee the moratorium continuing throughout all of 2021.
 

THE MONEY IS FINALLY HERE . . . Learn How To Access Wisconsin's Emergency Rent Assistance Payments

As I am sure many of you have heard, back in December the Federal government agreed to set aside $25 Billion dollars for Rent Assistance as a result of Covid.  Of that large amount, Wisconsin was allocated a total of $386,777,591.50 to be divvied up as follows:

1. Brown County - $7,907,949.30

2. Dane County - $8,579, 734.30

3. City of Madison - $7,762,609.60

4. Milwaukee County - $10,629,017.80 -- (to be distributed by Community Advocates)

5. City of Milwaukee - $17,641,552.70 -- (to be distributed by the Social Development Commission (SDC))

6. Waukesha County - $12,082,683.60 --  (to be distributed by Community Advocates)

7. State of Wisconsin - $322,174,044.20

Both tenants and landlords have been waiting for months for this money to arrive and it is FINALLY here.

One of the nice thing about the Wisconsin Emergency Rental Assistance Housing Payments (often referred to as ERAP or WERAP) is that the Landlord is allowed to complete the application on behalf of the Tenant.  This was a very important change in case you have a Tenant that is qualified to receive the money but has refused in the past to apply for the emergency rent payments. 

Landlords can begin applying through Community Advocates on behalf of their tenants for both Milwaukee County and Waukesha County now.

It appears that there is still some logistics for the City of Milwaukee and the SDC to work out so they are not yet taking applications.

If your rentals are located outside of the city and counties of Milwaukee or Waukesha you will want to take a look at the WISCAP WERA website for more information and assistance. 

A Nicely Done News Report Explaining How the Eviction Moratorium is Negatively Affecting Both Tenants AND Landlords

I was interviewed by Reporter Caroline Reinwald of ch. 12 WISN yesterday on the CDC eviction moratorium and how it is negatively affecting both Tenants AND Landlords.  I thought Caroline did a very nice job of explaining the pains felt by both sides and was happy to be interviewed for the report.

The Landlords' Side of the Story

Have you noticed that landlords tend to be portrayed as evil and uncaring?  I'm reading lots of so-called news articles (that really are nothing but opinion pieces) with such sentiments.  The media also tend to treat all landlords as large companies making lots of money at the expense of tenants.  Did you know that the vast majority of landlords throughout the U.S. are small "mom & pop" landlords that own rental property in addition to working a full-time job?

Our own Milwaukee Journal-Sentinel likes to push this false narrative.  Despite myself and other landlords having spent literally hours on the phone with, writing emails to, or even meeting personally with J-S reporters, the paper still opts to ignore the facts and imparted knowledge provided, in order to continue the false narrative that landlords are evil. 

One individual, Nick Sakalis, has taken the lead in trying to tell the landlords' side of the story.  Below are several of his videos.  Please take the time to watch them, and share them if you are so inclined.  They are well-made and refreshingly don't just tell one side of the story.   They also explain an important point that the J-S tends to overlook, the fact that if landlords fail, tenants will also fail, as will the towns and cities that contain rental housing.  It seems short-sighted to continue to produce stories pushing the false narrative rather then trying to educate its readers about the long-term effects of continuing eviction moratoria without providing funding to keep both tenants and landlords afloat. 

Mr. Sakalis has also created a YouTube channel dedicated to collecting all landlord-related videos in one place. He has already assembled a fair amount of content and is adding to it everyday.  I will continue to post Nick's videos to my blog as they are created.

Perhaps one day the J-S will realize that landlords and tenants are not opposing forces and should not be trying to vilify the other. Rather landlords and tenants are two sides of the same coin.  What helps landlords also helps tenants and what helps tenants will also help landlords and by extension rental housing, municipalities, stores etc etc.  Is the Milwaukee Journal Sentinel listening . . .  probably not.

GUEST POST: CDC Attorneys State That Landlords Can Challenge Tenants' Declarations In State Eviction Court

This is guest post written by Tim Ballering (JustALandlord.com)

The CDC attorneys have stated in federal court that owners are permitted to file evictions as well as challenge the veracity of a tenant's CDC Declaration. The CDC argues that owners can even obtain an eviction judgment, as long as the physical move is stayed until the end of the moratorium.

Most importantly, the Order does not prevent a landlord from filing an eviction action in state court. First, the Order expressly permits eviction for various reasons other than nonpayment of rent. See 85 Fed. Reg. at 55294 (property damage, criminal activity, etc.). Second, nowhere does the Order prohibit a landlord from attempting to demonstrate that a tenant has wrongfully claimed its protections. And third, even where a tenant is entitled to its protections, the Order does not bar a landlord from commencing a state court eviction proceeding, provided that that actual eviction does not occur while the Order remains in place. See id. at 55292 (“the order prevents these persons from being evicted or removed from where they are living through December 31, 2020”); id. at 55293 (defining “evict” as “to remove or cause the removal of”).

https://nclalegal.org/wp-content/uploads/2020/10/CDC-Response.pdf at page 42

The CDC attorneys further state that owners are permitted to sue tenants for nonpayment in civil court. This creates an interesting situation where an owner who is not receiving rent can garnish wages. 

Where tenants fail to pay rent, nothing in the Order precludes landlords from filing a breach of contract action seeking payment. Plaintiffs may prefer a different remedy, but they plainly have access to a judicial forum.

id. at page 43

This critical interpretation of the CDC Order is from its legal counsel, the US Dept. of Justice, in a brief in filed in the Brown v. Azar case, the federal court case in Atlanta seeking to overturn the CDC Order.

This is very different than what owners are being told by tenants' attorneys as well as local courts.

Personally I am not opposed to the moratorium if the tenant truthfully fills out the CDC Declaration, which includes an actual substantial loss of income, partial payments to the best of the tenant's ability and having applied for all applicable government assistance.

The concern is when tenants are using the CDC Order as a “Get Out Of Rent Free” card and submitting knowingly false Declarations. For example we received our first Declaration last week. The tenant listed SSI as her sole source of income on her application, so she did not suffer a substantial loss of income. She also has failed to apply for either the Community Advocates or the WRAP funding.

CDC and HHS Issue Order for Temporary Halt In Residential Evictions to Stop The Spread of COVID-19

On September 1, 2020, the Centers for Disease Control and Prevention (CDC) and Department of Health and Human Services (HHS) published an Agency Order temporarily stopping all residential evictions in the United States, in order to prevent the spread of COVID-19.

What Are the Effective Dates of this Order?

This order became effective immediately upon publication (presumed to be Sept 4, 2020) and continues through December 31, 2020.

What Is Prohibited under this Order?

Under this Order, a landlord, owner of a residential property, or other person with a legal right to pursue an eviction is prohibited from evicting any “covered person” from any residential property in any jurisdiction.

Who Is a “Covered Person” Under this Order?

A “covered person” is defined as any tenant, lessee, or resident of a residential property who provides to their landlord a written declaration under penalty of perjury that says:

1. The person has used best efforts to obtain all available government assistance for rent or housing;

2. The person expects to earn less than $99,000 in annual income for calendar year 2020 (or no more than $198,000 if filing a joint income tax return) or was not required to report any income in 2019 to the IRS or received a stimulus check pursuant to section 2201 of the CARES Act;

3. The person is unable to pay the full rent due to substantial loss of household income, loss of compensable hours of work or wages, lay-off or extraordinary out-of-pocket medical expenses;

4. The person is using best efforts to make timely partial payments that are as close to the full payment as the person’s circumstances may permit, taking into account other non-discretionary expenses;

5. Eviction would likely render the person homeless or force the person to move into and live in close quarters because the person has no other available housing options.

The Order defines “evict” and “eviction” to mean any action by a landlord to remove or cause the removal of a covered person from a residential property. This language is broad enough to cover the act of serving a notice terminating tenancy, the filing of an eviction, and the filing of a previously obtained writ of restitution with the Sheriff. 

Can A Landlord Still Pursue a Non-Rent Eviction During the Moratorium?

Nothing in the Order however prevents a landlord from pursuing an eviction based on a tenant that:

1. Engages in criminal activity;

2. Threatens the health or safety of other tenants;

3. Damages or poses an immediate and significant risk of damage to the property;

4. Violates any applicable building code, health ordinance, or similar regulation relating to health and safety; or

5. Violates any other contractual obligation, other than the timely payment of rent, including the non-payment of fees, penalties or interest.

What Are the Penalties for a Violation of this Order?

Any person that violates this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of not more than $250,000 if the violation results in a death.

Any organization that violates this Order may be 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.

The U.S. Department of Justice may prosecute a violation of this Order seeking criminal penalties.

What about a More Restrictive State or Local Moratorium?

The Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides for the same or greater level of public-health protection then this Order. The Order also states that it does not preclude State, local, territorial, and tribal authorities from imposing additional requirement that provide greater public–health protection and which are more restrictive that the requirements of this Order.

Are Tenants Still Responsible for Paying Their Rent During the Moratorium?

The Order states that this temporary eviction moratorium does not prevent any individuals of any obligation to pay rent or comply with any other obligations that a person may have under a tenancy, lease or similar contract. Nothing is the Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent. What the order does is prevent the landlord from removing the tenant for failure to pay rent until 2021.

Some Final Thoughts . . .

Arguably this latest moratorium protects tenants, but does it? Tenants are still required to pay the rent during the moratorium as well as late fees. If they don’t pay rent however all that happens is that the tenant cannot be evicted . . . for now. They can be evicted in 2021. Does anyone really think that a tenant negatively impacted by COVID-19 that cannot pay their rent today will have the money available to pay 5 month’s rent and late fees come January 1, 2021? How does this help tenants? It doesn’t. It is nothing more than the proverbial punting of the ball down the field. Everyone loses when a tenant is evicted.

Tenants are protected when their rent is paid and their landlord receives the rent payment so it can continue to pay its mortgage, taxes, utilities, and wages to its employees who maintain the rental property, spend money in local stores to help maintain the rental property. If the overarching goal is to actually help tenants then thought needs to be given to funding “portable” housing vouchers so that tenants that have lost their jobs due to COVID-19, will still be able to pay their rent and will continue to have a place to live in 2021. Delaying a tenant’s eviction for 5 months and having a landlord fail in the interim does not help anyone and it certainly does not stop a housing crisis.

The only way that a housing crisis can be avoided is if both tenants and landlords succeed. Trying to solve one end of the equation by kicking the ball down the field while at the same time completely ignoring the other end of the equation is short-sighted and honestly negligent