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

Tristan is the Executive Vice President and shareholder with the law firm of Petrie+Pettit and focuses his practice in the area of landlord-tenant law representing landlords and property management companies throughout Wisconsin.