Note: This “Moratorium” ONLY applies under certain conditions.
On August 8, 2020, by Executive Order, President Trump ordered certain federal agencies to determine whether a nationwide residential Eviction Moratorium was advisable in light of the COVID-19 pandemic.
Less than a month later, there is now a nationwide residential Eviction Moratorium enacted by the Centers for Disease Control (CDC) that will apply to ALL Tenants in ALL residential rental properties, BUT ONLY UNDER CERTAIN CONDITIONS.
Q: Did the CDC impose an Eviction Moratorium?
A: Yes. As of September 4, 2020, the CDC has ordered a halt to certain nonpayment evictions nationwide through December 31, 2020 on public health grounds if the Tenant can produce a proper signed Declaration/Affidavit.
Q: How does the Tenant qualify for the Eviction Moratorium protection?
A: The Tenant will have to deliver to the Property Manager a signed Declaration. The CDC has a Declaration that can be used, but any Declaration with substantially the same wording can be used. It does not need to be identical or called a Declaration so be very careful.
Q: What must the Tenant certify in the Declaration?
A: The Tenant must certify that they:
1. Had a substantial loss of household income or have incurred extraordinary out-of-pocket medical expenses.
2. Are unable to pay full rent.
3. Used best efforts to obtain all available government assistance.
4. Are making best efforts to pay partial rent.
5. Would be homeless or forced to live with others in close quarters if they were evicted.
6. Expect to earn less than $99,000 a year if single or $198,000 if married in 2020.
Q. Does this Eviction Moratorium impact non-CARES Act covered properties?
A. The Eviction Moratorium impacts any and all residential properties, CARES and NON-CARES.
Q. Does the substantial loss of household income or extraordinary out-of-pocket medical expenses related to the Tenant’s certification have to be COVID-19 related?
A. No, there is no specific language in the CDC order requiring this.
Q: If the proper Declaration is submitted to the Property Manager prior to eviction, can an eviction action still be filed?
A: Probably not. The Eviction Moratorium indicates the landlord cannot “evict”, so most likely this applies to all aspects of the eviction process.
Q: If the proper Declaration is submitted to the Property Manager by the Tenant after the eviction action has already been commenced, can the Property Manager still proceed with the eviction action as long as the writ of possession is not executed?
A: No. The Property Manager should not be moving forward with the case, as that could also violate debt collection laws, and obtaining the Final Judgment of Eviction could mean the Tenant was “evicted”, subjecting the Property Manager to criminal and civil penalties.
Q: If the Declaration is submitted to the Property Manager by the Tenant after the eviction action has already been commenced, can the Property Manager still execute the Writ of Possession?
A: The Property Manager is absolutely prohibited from executing the Writ of Possession if the proper Declaration is submitted to the Property Manager.
Q: Is violating the Eviction Moratorium a criminal offense?
A: Yes. Violation of the Eviction Moratorium would potentially subject the Property Manager and/or property management company to criminal penalties of up to a year in jail and fines ranging from $100,000 up to $500,000.
Q: Is the Tenant still obligated to pay rent?
A: Yes, not only is the Tenant still obligated to pay rent, but the Property Manager is not required to waive any rent amounts owed by the Tenant.
Q: Does the Eviction Moratorium apply to evictions unrelated to the nonpayment of rent such as noncompliances and non-renewals?
A: No, the Property Manager would be permitted to evict Tenants who violate lease terms unrelated to rent and also evict holdover Tenants.
Q. The lease is coming to an end or the tenancy is month to month. Can the Property Manager serve notice and evict?
A. The Moratorium does not prohibit this, but the Tenant could potentially argue that the Property Manager is violating the law if the Property Manager was served with the Declaration, and the reason for nonrenewal is because of nonpayment.
Q. What should a Property Manager do if the Tenant presents a Declaration to them?
A. The Property Manager should mark the file or indicate in the software that a Declaration has been received, stop any action such as notice serving and contact their attorney ASAP, being careful to document everything.
Q. Suppose a current eviction for nonpayment of rent is in progress and the Property Manager receives the Declaration?
A. The Property Manager needs to immediately contact their attorney and confirm that contact has been made and received.
Q. Can the Property Manager make any payment arrangements with a Tenant after receiving the Declaration?
A. Yes, but if the Tenant fails to pay per the payment plan, no eviction can be filed.
Q. Is a Property Manager prohibited from speaking to or contacting a Tenant after receiving the Declaration?
A. No. The Property Manager can contact the Tenant, attempt to make payment arrangements or enter into a cash for keys agreement, but cannot threaten or imply that an eviction for nonpayment of rent will be filed or that a current eviction action will be continued.
Q. Can the Property Manager work with the Tenant on rental assistance with the various assistance programs?
A. Yes. Nothing prohibits the Property Manager from doing this, and it is encouraged.
Q. If a Tenant served the Property Manager with the Declaration, how soon would the Tenant be removed once an eviction for nonpayment of rent can be filed after December 31?
A. The Property Manager should expect extreme delays after the eviction for nonpayment of rent is filed after December 31.
Q. Does the Property Manager have to inform the Tenant of the Eviction Moratorium?
A. No disclosure is required.
Q. Will the Eviction Moratorium impact current eviction actions?
A. Yes, if the Tenant has provided the Declaration, the Property Manager must notify the attorney ASAP and the eviction action is put on hold. The case will be held by the attorney.
Q. Can we still serve notices as normal on our nonpaying Tenants?
A. Yes. The Eviction Moratorium only impacts the Property Manager if served with the Declaration by the Tenant. If the Property Manager has been served the Declaration by the Tenant, the Property Manager should not give any notices for nonpayment of Rent.
Q. Can the Property Manager send evictions to the attorney for filing?
A. Yes. As long as the Tenant has not provided the Property Manager with the Declaration, all evictions can be filed as usual.
Q. Does the Tenant have to give the Declaration to the Property Manager, and must it be signed by the Tenant?
A. If the Tenant gives the Declaration to ANYONE connected to the Landlord/Owner or eviction process, this would be enough for notice to have been given. If it is NOT signed by the Tenant, but the Property Manager has confirmed it came from the Tenant, it may be as good as signed.
Q. How important is it to notify the attorney that this Declaration or something looking similar to it has been received by someone in the office or company?
A. Probably the most important thing you can possibly do.
LAW OFFICES OF HEIST, WEISSE & WOLK, P.A.
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