eviction moratorium | Fraser Blog

CDC Eviction Moratorium Struck Down – How Are Michigan Courts Responding

On August 26, 2021, the U.S. Supreme Court struck down the CDC’s section eviction moratorium. That opinion can be found here.

At the time it was uncertain what this meant for Michigan courts handling evictions in light of the July 2 amendments to Michigan Supreme Court Administrative Order No. 2020-17 (“Order 17”), found here.

As of Friday August 27, 2021, when the author personally filed landlord-side eviction actions at a district court near you, the district courts were still requiring use of SCAO form DC 511 – a form modeled after the CDC moratorium and allowing tenant declarations consistent with it. Thus, with various administratively-ordered procedural changes to eviction cases, it was unclear what changes, if any, would follow from the striking of the CDC moratorium. Since that time the State Court Administrator’s Office has removed links to form DC 511 and are verbally advising that the office pulled the form. It is not a mistake or a dead link. At the time of publication of this update however, there does not appear to be a Michigan Supreme Court order so directing. Specifics have been requested from the SCAO office on this.

Please check back for updates on this issue. We will update this blog if further procedural changes are ordered. In the meantime, form DC 511 should not be necessary for filing new eviction cases.

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 jroberts@fraserlawfirm.com and (517) 482-0887.

CDC Enters a “Round 2” Modified Eviction Moratorium

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.

CDC Eviction Moratorium Declared Unconstitutional

On Thursday, February 25, 2021, the United States District Court for the Eastern District of Texas issued a declaratory ruling holding that the current CDC eviction moratorium is unconstitutional. For details on the moratorium and applicable CDC order please see my prior article “The DHS – CDC September Surprise; The Order to Temporarily Halt Residential Evictions.”

The general terms of the CDC Moratorium originally appeared in the CARES Act in March of 2020. Upon expiration of the CARES Act moratorium at the end of July, 2020, and the pending expiration of state-imposed moratoria, the CDC September moratorium was issued. That September CDC moratorium was scheduled to expire on December 31, 2020. That December 31 date was extended through federal legislation to January 31, 2021. That January 31 date was again extended by the CDC, with support of the Biden Administration, under an extension that sought to keep the moratorium in place through March 31, 2021.

The Michigan Supreme Court, through administrative action, ruled that Michigan courts would honor the CDC moratorium on October 22, making it, effectively, the law of Michigan. See here.

However, Terkel et al., v. Centers for Disease Control and Prevention et al., No. 6:20-cv-00564 (E.D. Tex., Feb 25, 2021; Hon. J. Campbell Barker) held that the Constitution’s Commerce Clause did not support or justify the CDC moratorium. The court did not address state power to enact or impose such moratoriums, and indeed, cited a long history of such state prohibitions going back to at least the great Depression. The court did not expressly order any federal agency not to enforce the CDC moratorium because attorneys arguing the matter for the Department of Justice indicated on the record that the government would honor the declaration.

The federal government has appealed this ruling according to the Justice Department’s website: Department of Justice Issues Statement Announcing Decision to Appeal Terkel v. CDC | OPA | Department of Justice. The Justice Department is taking the position that this ruling only applies to the specific parties in that case and that it does not strike the CDC Moratorium nationwide. This declaratory judgment is not strictly binding precedent in Michigan courts but may be cited, of course, as persuasive authority. It is uncertain whether the Michigan Supreme Court will do anything to update its October, 2020 administrative order as a result.

If you are a landlord in Michigan and seek further guidance on this matter please contact Jared Roberts at Fraser Trebilcock.

Navigating Executive Order No. 2020-19 (“Order 19”); The Eviction and Land Contract Forfeiture Moratorium

UPDATE: On Monday, April 20, 2020, Governor Gretchen Whitmer signed Executive Order 2020-54, extending the duration of relief in prior Order 2020-19 through May 15, 2020.

With Executive Order 2020-54, Governor Whitmer enacted a “temporary prohibition against entry to premises for the purpose of removing or excluding a tenant or mobile home owner from their home,” which can fairly be described as an “eviction moratorium.”

This is a brief summary and does not constitute legal advice. We encourage you to review our new blog which analyzes Executive Order 2020-54, by following the link here.

On Friday, March 20, 2020, Governor Whitmer signed an executive order enacting a “temporary prohibition against entry to premises for the purpose of removing or excluding a tenant or mobile home owner from their home,” which can fairly be described as an “eviction moratorium.” It is in place until the end of the night on Friday, April 17, 2020, which effectively means that it is in place until Monday, April 20, unless it is amended, extended or repealed.

It prohibits landlords and land contract vendors from evicting tenants or vendees for about one month; nominally until midnight on Friday April 17, 2020, but practically until the following Monday, April 20. It also prohibits personal delivery of Notices to Quit and other forfeiture notices, but does not prevent them entirely. It has provisions that apply to court officers as well. It is both detailed and summarized below.

Legal Basis: Like all the COVID-19 executive orders, Order 19 follows the March 10, 2020 Executive Order 2020-4, which declared a state of emergency across Michigan. It cites Michigan’s Constitution (Const 1963, art 5, sec 1) (vesting executive power in the governor) for support, along with Michigan’s 1976 Emergency Management Act, codified at MCL 30.401-421, and its 1945-era Emergency Powers of the Governor Act, codified at MCL 10.31-33 (please see links below to these statutes). Order 19 states:

“[t]he current state of emergency would be exacerbated by the additional threats to the public health related to removing or excluding people from their residences during the COVID-19 pandemic. To reduce the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders, it is reasonable and necessary to provide temporary relief from certain eviction-related requirements.”

In sum, the Governor has determined that the personal interactions necessitated by the eviction process, and the possibility of people being put out “on the street”, so to speak, presents avoidable risks. Thus, the landlords of Michigan and those who sold residential property on land contract are being called on to contribute resources to the public good. At the time of writing and publication of this article, this contribution is uncompensated. Without addressing or resolving those issues, this article simply identifies what is prohibited and places those prohibitions into the context of the ordinary procedures for evictions or summary land contract forfeitures.

Prohibited Acts: Order 19 prohibits or regulates the following, described as numbered under the Order itself. The terms of Order 19 are summarized here:

No person shall remove or exclude a residential tenant, people holding under that tenant (such as roommates, family members, and likely any other hangers-on), land contract vendees (buyers) or those holding under those vendees from the residential premises in question until 11:59 pm on April 17. This does not apply if the “tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property. This order should be broadly construed to effectuate that purpose.”

In other terms, regardless of where one was at in an eviction or land contract forfeiture process, actual removal or execution on a Writ of Restitution or other eviction order is stayed, barring exception. The “severe risk” exception is discussed briefly in the “What This Means” section below.

“This order does not affect the inherent power of a judge to order equitable relief.”

It is uncertain at this time whether this section intends to create a judicial carve out that would allow the equitable relief of eviction in circumstances not contemplated under Order 19, or whether this is a statement intended to limit the scope of Order 19 and prevent it from being mis-applied in commercial or other contexts. The later seems more likely, but this section is open to some interpretation.

This section, translated, provides that tenants and vendees still have to pay, and will still owe money for the time they occupy the property in question. In addition, landlords and vendors still have to issue notices to quit (and by extension, other forfeiture notices) consistent with MCL 600.5716 and MCL 600.5718. However, such notices cannot be personally delivered during the moratorium period – they must be mailed or e-served if allowed under the applicable lease.

It is highly unlikely that any judge will construe this section to prohibit a landlord or vendor from knocking on a tenant’s door to conduct other business, to check on a tenant, or to provide assistance to a tenant. The landlord just cannot knock on a tenant’s door to deliver the “bad news” of a notice to quit. The damages to the landlord continue to accrue, however.

Further, no person may enter residential property to remove a tenant, vendee or anyone claiming under them, even if they have already obtained a Writ of Restitution or other eviction order. Like Section 1 above, there is an exception where the tenant, vendee, or person holding under them poses a substantial risk to another person or an imminent and severe risk to property.

This is largely a re-hash of Section 1: if no person can remove or evict under Section 1, it follows that no person may enter a rental unit or residential property subject to a land contract for those purposes.

There is a moratorium preventing any court officer, sheriff or deputy from serving process (i.e., new lawsuits) that seek eviction of forfeiture as a remedy.

This section governs law enforcement, as opposed to the landlords or land contract vendors. It does not, on its face, bar lawsuits only seeking money damages. Assuming your local district court will take the filing and issue process (which remains uncertain at this time), one may theoretically initial a new contract-based suit for money damages and seek to amend to add an eviction remedy when the moratorium is lifted.

“[N]o person may deny a mobile home owner access to their mobile home, except when the mobile home owner’s tenancy has been terminated because the mobile home owner poses a substantial risk to another person or an imminent and severe risk to property.”

This section basically brings mobile home parks under the same prohibitions applicable to residential landlords and land contract vendors.

For 30 days after the restrictions in sections 1 through 6 expire, courts have latitude to adjourn proceedings, toll redemption periods, toll limitations periods, and extend deadlines.

This appears to be a “housekeeping” section granting court latitude with scheduling that likely already would be found to exist under Michigan’s rules of Court and revised Judicature Act.

As used in this order, all terms have the meaning provided by the Revised Judicature Act.

This unifies Order 19 with existing statutes that the Courts and your attorney will already be familiar with.

A willful violation of this order is a misdemeanor.

This section requires little or no translation.

A copy of this order will be transmitted to the State Court Administrative Office.

This is a mechanical section that will mean little to landlords or land contract vendors.

What This Means: Landlords and those who sold residential property on land contract must either challenge the legality of Order 19, or wait out all evictions until it expires or is amended to allow evictions.

Order 19 excepts situations where a tenant is creating substantial risk to another person or an imminent and severe risk to property. While Order 19 is silent as to what those situations are, the case-by-case determinations that a court might make in that regard will be governed and informed by existing statute and common law. Owing to the numerous pronouncements in Order 19 regarding the necessity for people to shelter in place, along with the “Stay At Home” Order issued March 23, 2020, it seems clear that having a tenant or vendee with COVID-19 will not likely be deemed an exception, unless that person is taking assaultive or offensive actions to spread it to others in the building. If you are confronted with that situation, nothing in Order 19 prevents a landlord from calling the police along with pursuing legal remedies.

Landlords may still mail and e-mail notices to quit, notices to terminate tenancies and related land contract forfeiture notices, but they cannot be personally delivered. There is a chance that the 30 day notice to terminate tenancy may be timely enforced, but (barring a court order striking or modifying Order 19), enforcement of a notice to quit for non-payment will be delayed. Order 19 does not technically prohibit a contract-based lawsuit against a tenant or vendee for money damages, but your counsel may advise that, in these uncertain times, such a suit may be of limited utility, unless it is later amended to add the eviction remedy.

In the meantime, Michigan’s prohibitions against landlord self-help and retaliatory eviction remain in place. While it was never a good time for landlords to take certain matters into their own hands before the current state of emergency, now is an even worse time to do so. It is anticipated that courts would treat lockouts or landlord utility shutoffs or service denials harshly at this time. It is unknown whether courts would likewise be lenient with landlords regarding repair issues at this time, but there are good arguments to support a rule of reason in that regard.

In Conclusion: Every situation is different. This general discussion cannot be used as a substitute for legal advice, pursuant to an established attorney-client relationship. Thus, contact your legal counsel or the undersigned if you have questions. The attorneys at Fraser Trebilcock remain ready and able to serve.

Michigan Constitution of 1963:

Emergency Management Act:

Emergency Powers of Governor Act:

Jared Roberts is a shareholder at Fraser Trebilcock who works in real estate litigation and transactions, among other areas of the law. Jared also “walks the walk” as a landlord and owner of residential rental properties and apartments in Downtown Lansing. He may be reached at jroberts@fraserlawfirm.com and (517) 482-0887.