The Centers for Disease Control and Prevention (the “CDC”) located within the Department of Health and Human Services, announced on Tuesday, September 1, 2020, the issuance of a new agency Order to temporarily halt residential evictions to prevent the further spread of COVID-19 (the “CDC Order”).  The CDC issued the CDC Order under its public health powers pursuant to Section 361 of the Public Health Service Act, explaining that evictions and a lack of housing stability could lead to a spike in homelessness, increasing the likelihood of individuals congregating together (e.g. homeless shelters) and being exposed to COVID-19.

The CDC Order protects eligible residents facing eviction from residential property due to the non-payment of rent, and could potentially subject landlords who violate the ban to criminal penalties.  The protections require the renter to provide a declaration under penalty of perjury stating that:

1. “The individual has used best efforts to obtain all available government assistance for rent or housing;
2. The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
3. 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;
4. the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
5. 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.”

The CDC Order is effective Friday, September 4, 2020, and lasts through December 31, 2020.  Officials are working through how to implement the procedures included in the CDC Order, and some jurisdictions have already suspended eviction hearings as officials review the guidelines.

Importantly, the CDC Order does not forgive rent, so protected renters would still have to make up missed rent payments after the moratorium expires.  This leads some to fear that, without direct assistance for renters and/or landlords in the form of government funds, an even greater backlog of eviction cases will flood the courts once this CDC Order expires at the end of the year.  The CDC Order only applies to the payment of rent, so tenants could still be evicted for other reasons, including other violations of the applicable lease.  Further, nothing in the CDC Order precludes the charging or collecting of fees, penalties or interest as a result of the failure to pay rent under the terms of the applicable lease or housing contract.

The CDC Order comes after the limited foreclosure and eviction moratorium included in the Coronavirus Aid, Relief and Economic Security Act (the “CARES Act”) was allowed to expire at the end of July.  Additional relief proposals and discussions of an extension or expansion of that CARES Act eviction moratorium have stalled in the United States Congress.  The Federal Housing Administration (“FHA”) announced its own extension of the foreclosure and eviction moratorium for homeowners with an FHA-insured single-family mortgage covered under the CARES Act through December 31, 2020.  Similarly, the Federal Housing Finance Agency, which regulates Fannie Mae and Freddie Mac, announced that Fannie Mae and Freddie Mac will extend their moratorium on foreclosure and evictions through December 31, 2020, and the Veterans’ Administration extended a moratorium on foreclosures of properties secured by Veterans’ Administration guaranteed loans through December 31, 2020.  On a state and local level, an increasing number of states and municipalities have established programs providing assistance with rent and utilities to residents who have lost income due to COVID-19, and many states and municipalities have passed or are considering laws or ordinances halting evictions or implementing new requirements for landlords filing eviction cases.

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