CDC Issues Federal Eviction Moratorium

By Mark L. Busch, Attorney at Law

Website:  marklbusch.com

This article is general in nature and is not intended as legal advice for any specific issue that might arise, since every situation is different. Always consult a knowledgeable landlord attorney with your specific legal issues.

The U.S. Centers for Disease Control and Prevention (CDC) has issued a federal Order purporting to place a nationwide ban on nonpayment residential evictions until December 31, 2020.  The Order becomes effective on September 4, 2020 and essentially provides that residential evictions based on the nonpayment of rent or other charges owed to a landlord are suspended until the end of the year if the tenant provides the landlord with a sworn declaration.

To qualify, the Order requires tenants to provide their landlord with a sworn declaration stating that the tenant:  (1) has used best efforts to obtain all available government housing assistance, (2) does not expect to earn more than $99,000 in 2020, or no more than $198,000 if filing taxes jointly, (3) is unable to pay full rent due to lost income, lost employment, or extraordinary medical expenses, (4) is using best efforts to make timely partial rent payments as circumstances permit, (5) if evicted is likely to become homeless or will need to move to “a new residence shared by other people who live in close quarters,” (6) understands that rent, late fees and other lease charges must eventually be paid in full, and (7) understands that after December 31, 2020, the landlord may evict the tenant if past-due payments are not made in full.

It is important to note that the Order does not override more stringent state laws.  In Oregon, for example, tenants who did not pay rent from April 1, 2020 through September 30, 2020 will have until March 31, 2021 to repay those amounts and cannot be evicted based on nonpayment of those amounts.  Oregon law also waives late fees during the same period, while under the federal Order landlords may charge late fees that become due in full along with rent on January 1, 2021.  (NOTE: Under both Oregon law and the federal Order, “for-cause” evictions based on conduct other than nonpayment are still allowed.)

The Order (federalregister.gov/d/2020-19654) is based on a finding that the temporary halt of residential evictions is necessary to prevent the further spread of COVID-19.  However, the federal government’s authority is limited when it comes to restricting state eviction laws.  The federal order is likely subject to challenge on several constitutional grounds, and federal law cannot override state eviction law unless certain conditions are met (i.e., interstate commerce is affected, or discrimination laws apply).

Enforcement of the Order is also likely to be questionable since it imposes criminal penalties on landlords for violations, which would have to be pursued separately from any eviction proceedings by the US Department of Justice.  The criminal penalties call for imprisonment of up to one year and fines of up to $500,000, but are based on somewhat obscure quarantine laws that appear to be patched together with other federal regulations that the CDC may or may not have the authority to apply to state eviction laws.  The bottom line is that the CDC has thrown out what is, at best, a shaky attempt to temporarily halt nonpayment evictions.  As usual, consult with an attorney before making a decision on whether to issue any nonpayment notices between October and the end of the year (October is when landlords can begin issuing nonpayment notices going forward under Oregon House Bill 4213).