Effective August 3, 2021, the Centers for Disease Control and Prevention (“CDC”) issued a second eviction moratorium that, by its terms, is effective August 3 through October 3, 2021. The text of the order can be found here.
Instead of a blanket eviction prohibition, as was in place with the CDC order that expired on August 1, this new order applies in areas with “substantial” or “high” rates of COVID-19 transmission. “Substantial” and “high” are defined within the order pursuant to a numerical formula, and the order states that it provides links to a CDC website that maintains county-by-county score cards that apply the formula. Popular media and commentators note that this qualifying rate requires 50 COVID-19 cases per 100,000 people over a seven day period. They also note that, according to the CDC, about 80 percent of US counties are currently experiencing these rates. If a county falls below the required rate for 14 days the moratorium does not apply, but if the rate goes back up to this level, it does. This would likely result in eviction proceedings starting then being stayed, depending on conditions, and may initiate some races to the courthouse, as the saying goes.
The general prohibition provides that: one “with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels” of COVID-19 transmission.
To be a “covered person” a tenant must: declare, under penalty of perjury, to various circumstances. Those declarations, quoted in part and paraphrased in part, are that:
- The individual has used best efforts to obtain all available governmental assistance for rent or housing;
- The individual income qualifies (basically, the individual received a stimulus check);
- The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay off, or extraordinary out-of-pocket medical expenses;
- The individual is using best efforts to make timely partial rent payments that are as close to the full rent payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
- Eviction would likely render the individual homeless—or force the individual to move into and reside in close quarters in a new congregate or shared living setting because the individual has no other available housing options; and
- The individual resides in a U.S. county experiencing substantial or high rates of transmission of COVID-19 (pursuant to the formula).
A standardized CDC form is supposed to be available through the CDC, pursuant to the new order, but at the time of publication, the link to that form was dead. It just led to a page stating that the moratorium had expired. This may change in the future, however. That link is here.
Other important aspects of the new order to consider include the fact that the new moratorium is in its infancy and there is no indication on how courts will treat various aspects of it. In particular, “[t]his Order does not preclude a landlord challenging the truthfulness of a tenant’s, lessee’s, or resident’s declaration in court, as permitted under state or local law.” However, “[a]s long as the information in a previously signed declaration submitted under a previous order remains truthful and accurate, covered persons do not need to submit a new declaration under this Order.”
Like the prior version, the new moratorium does not cancel the tenant debt. Tenants can still be evicted for other breaches of the lease and, the author would argue, when a lease expires. If a tenant has COVID they cannot be evicted, but they can be evicted if they engage in criminal activity, threaten others (but being sick with COVID-19 itself is not deemed a threat to others), damage property or pose an immediate risk of damaging property, or violate ordinances or building codes.
On June 29, 2021, in the case of Alabama Association of Realtors® v. US Department of Health and Human Services, four justices voted to hear an appeal of a stay order entered by a District Court that held that the initial moratorium exceeded the CDC’s authority. Justice Kavanaugh, who concurred with the 5-vote majority to allow the CDC moratorium to remain in place, wrote: “I agree with the District Court and the applicants [the Alabama Association Plaintiffs] that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” But, he concurred with the majority, and allowed the moratorium to stay in place because it was about to expire on July 31, and that the overall equities of the situation dictated that the moratorium should remain in place, albeit temporarily. Justice Kavanaugh further wrote that: “[i]n my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”
Thus, many Supreme Court watchers and commentators believe that our Supreme Court will hold such a moratorium invalid if it ever confronts the merits of the issue. As several federal courts found the prior moratorium unlawful, but never struck it nationwide based on various principles, we may again be confronted with a situation where the moratorium will expire before courts strike it down.
If you are a Michigan landlord seeking to navigate this current climate please contact Jared Roberts at Fraser Trebilcock.
Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared is Chair of the firm’s Real Estate department, and also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at firstname.lastname@example.org and (517) 482-0887.