CDC Eviction Moratorium–A Primer for Landlords and Tenants

Whitman Legal Solutions, LLC

Whitman Legal Solutions, LLC

Some string musicians are surprised to learn that they must obtain a Musical Instrument Certificate from the U.S. Fish and Wildlife Service (FWS) before traveling internationally. If they don’t obtain this “passport” for their instrument, they risk having their bow confiscated at customs when they reenter the country.

The reason for this seemingly absurd requirement is a tiny white or beige cover at the tip of their bows. This cover, which conceals the location where the bow hair attaches, is now usually made from a synthetic material, bone, or metal.

However, the cover traditionally was made from ivory, and older bows usually include an ivory cover. Laws designed to protect elephants from hunting for their ivory prohibit the use of ivory removed from the wild on or after February 26, 2016. Not only is a “passport” required, but those items are to be imported/exported only through specific ports of entry.

However, ivory isn’t the only prohibited material that may be in a violin bow. The best violin bows were made from Pernambuco, also known as Brazilwood (although this term is sometimes used to describe wood in non-Pernambuco bows, also). Pernambuco is on a list of endangered plant species. However, unlike bows containing ivory, bows made from Pernambuco don’t require a “passport.”

Violins, violas, and celli also fingerboards need passports–or not. Fingerboards may be made of protected Madagascan ebony. And chinrests or tailpieces may be made from protected rosewood.

The rules on prohibited materials are complex and not necessarily intuitive. No matter how talented or prominent a musician is, it may be challenging for them to keep track of and comply with these requirements. The result is that international travel to perform music can be much more complicated than the typical musician can easily navigate.

FWS isn’t the only government agency that imposes requirements so complicated that it’s challenging for individuals to navigate. The Centers for Disease Control and Prevention’s (CDC) residential eviction moratorium (Moratorium), which was recently extended, also imposes significant tenant obligations. This article discusses what tenants must do to qualify for the Moratorium and when landlords may evict tenants despite the Moratorium.

Why Is There an Eviction Moratorium?

In the early days of the pandemic, there was no uniform national eviction moratorium. Some local and state governments imposed eviction moratoria, but others did not.

Through August 2020, there also was a federal eviction moratorium for properties subject to government funding or financing. Since tenants didn’t necessarily know their landlord’s mortgage lender, it was challenging for them to determine whether their property was subject to that moratorium.

Shortly after that federal moratorium expired, the CDC issued its Moratorium, which was initially effective from September 4 through December 31, 2020. The Moratorium later was extended through March 31, 2021.

The Moratorium was designed to support government response to COVID-19 and minimizing the spread of COVID-19. The rationale is that individuals who have been evicted are likely to become homeless or be housed in crowded, congregate, or shared living, where COVID-19 is more likely to spread. Possibly because CDC is a health agency, the Moratorium does not mention efforts to address economic hardship triggered by the pandemic.

Eviction Moratorium Basics

On March 28, 2021, the CDC issued an order (Order) extending the Moratorium through June 30, 2021. Far from simple, the Order is a 17-page legal document that reads like legislation. The CDC has also issued an eight-page list of Frequently Asked Questions, which, although shorter than the Order, isn’t light reading.

Even though the Moratorium doesn’t state a direct goal of reducing economic hardship, the Order temporarily stops only residential evictions due to nonpayment of rent. Other evictions may proceed (even if the tenants will be homeless or living in congregate settings as a result).

The Moratorium also doesn’t apply to all tenants, only those who meet specific financial requirements. The Moratorium limits the income a tenant can receive and remain eligible. A tenant must meet at least one of these requirements to be eligible:

  • The tenant expects to earn no more than $99,000 ($198,000) in annual income during 2020-2021;

  • The tenant did not have to report any income to the IRS in 2020; or

  • The tenant received stimulus payment under the CARES Act.

If the tenant meets the income requirements, they then must meet all of the following additional requirements to be a “covered person” under the Moratorium:

  1. The tenant must have made best efforts to obtain all available government rent and housing assistance;

  2. The tenant must be unable to part or all of their rent due to substantial loss of income, work, layoff, or extraordinary out-of-pocket medical expenses;

  3. The tenant must make best efforts to make timely partial payments in as large of an amount as they can afford; and

  4. Eviction would likely leave the tenant homeless or force them to move into close quarters in a congregate or shared living situation.

If a tenant meets the Moratorium’s financial requirements, they still aren’t immune to eviction for nonpayment of rent. Every adult tenant also must deliver an Eviction Protection Declaration to their landlord under penalty of perjury.

Landlords aren’t required to tell tenants about the Moratorium, nor are landlords required to provide the CDC Eviction Protection Declaration form to tenants. Tenants must figure these things out by themselves.

When Can A Landlord Evict a Tenant?

Tenants should recognize that although the Moratorium might prevent eviction, it does not reduce or abate their rent. Also, the Moratorium only prevents landlords from physically evicting tenants from their rental units. It does not stop landlords from sending tenants notices to vacate, filing eviction cases, obtaining money judgments, or even obtaining eviction orders–as long as the tenant is not physically removed from the rental unit.

Plus, even if a tenant meets the financial requirements and submits an Eviction Protection Declaration, under some circumstances, the landlord still may evict the tenant from the premises. The Order states that the Moratorium does not apply to evictions based upon:

  • Criminal activity

  • Threatening the health or safety of other residents

  • Damaging or posing a significant risk of damage to property

  • Violating health, building, or other regulations relating to health and safety

  • Violating lease provisions, other than those relating to payment of rent and similar housing-related payments

The Order also states that landlords may challenge a tenant’s Eviction Protection Declaration in court.

Although the Order doesn’t mention it, landlords also can evict tenants for “holding over”–remaining in the property after their lease expires. Most apartment leases are for one year. Since the pandemic has lasted for more than a year, nearly every residential lease has come up for renewal at some point in time during the pandemic.

Some tenant leases have automatic renewal provisions. But those provisions usually allow the landlord to provide the tenant with a notice that the lease will not be renewed. Nonrenewal notices are a common practice in multifamily real estate since landlords usually want to increase the tenant’s rent every year. An automatic renewal usually won’t include a rent increase.

Landlords can use lease terminations to their advantage for tenants who are behind on their rent. Since submitting an Eviction Protection Declaration only protects the tenant from eviction for nonpayment of rent, the landlord can refuse to renew the tenant’s lease and then bring an eviction action for holding over after the lease ends.

Other Obstacles to Eviction

In addition to the CDC Moratorium, some states have their own moratoria. For instance, the New York legislature passed a bill (N.Y. Legislation) adding childcare responsibilities, the need to care for an elderly, disabled, or sick relative, and moving expenses to the hardships that qualify a tenant for protection from eviction.

The NY Legislation also prohibits evicting tenants who certify that a move would increase their risk of COVID-19 due to being over age 65, having a disability, or having an underlying medical condition. The NY Legislation is effective until May 1, 2021. California, Illinois, Oregon, and Washington also have state moratoria.

Even when landlords are permitted to pursue eviction, the process might move slowly. Most courts were closed to non-emergency cases in the early months of the pandemic. This created a backlog of court cases. New eviction cases might not be heard quickly.

There also may be a backlog in court officials’ execution of court eviction orders for set-out, restitution, or ejectment (the terminology varies from state to state). Plus, social distancing protocols may slow the process of physically evicting tenants from a property.

Just as it can be challenging for a musician to navigate laws regarding restricted materials in their instruments. And it can be challenging for residential tenants to comply with the Moratorium’s technical requirements. However, landlords also face challenges as they navigate the eviction process, even where the Moratorium doesn’t apply.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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