In a surprising turn of events, on Tuesday, August 4, CDC Director Dr. Rochelle Walensky signed an Order once again extending the CDC Eviction Order, which temporarily halts nonpayment evictions for tenants who invoke the Order’s protections through submission of a CDC Hardship Declaration, until October 3 for applicable counties.
The CDC’s Surprising Move:
Most landlords and other industry professionals are surprised and disappointed by this extension of the CDC Order, in light of the CDC’s prior statement that the July 31st extension was “intended to be the final extension of this moratorium” and the June 29, 2021 decision out of the United States Supreme Court from the case of Alabama Association of Realtors v. Department of Health and Human Services, both of which were discussed in my prior June 30 blog and July 1 blog.
In the Supreme Court’s prior decision, the Court, while voting to keep the eviction moratorium in place until the end of July, stated that it “agree[d] with the District Court and the applicants that the CDC exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and stated that, in its view, “congressional authorization (via new legislation) would be necessary to extend the moratorium past July 31.” Despite that decision from the US Supreme Court, the CDC, without congressional authorization, extended its Order.
Indeed, President Biden himself conceded that, “The bulk of the constitutional scholarship says that [the new moratorium] is not likely to pass constitutional muster … but there are several key scholars who think that it may, and it's worth the effort. . . But at a minimum, by the time it gets litigated, we'll probably give some additional time while we're getting that $45 billion out to people.”
As of the publishing of this blog post, it is unknown whether the plaintiffs in the above-noted lawsuit or similarly situated plaintiffs in the other lawsuits successfully challenging the CDC Order may attempt a challenge to this latest extension of the CDC Order and whether such a challenge would be accomplished prior to this Order expiring on October 3. Updates will be provided as they come in.
The Applicability of the latest CDC Order:
In a statement yesterday, the CDC stated as follows:
CDC is issuing a new order temporarily halting evictions in counties with heightened levels of community transmission in order to respond to recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of the Delta variant. It is intended to target specific areas of the country where cases are rapidly increasing, which likely would be exacerbated by mass evictions. . . . This Order is in effect through October 3, 2021, based on the current and projected epidemiological context of SARS-CoV-2 transmission throughout the United States.
Despite the CDC’s statement as to the supposed limited scope of the Order, this Order currently applies to approximately 80% of the counties throughout the nation, as described below.
The CDC Order, in pertinent parts, provides as follows regarding applicability:
This Order applies in U.S. counties experiencing substantial and high levels of community transmission levels of SARS-CoV-2 as defined by CDC, as of August 3, 2021. If a U.S. county that is not covered by this Order as of August 3, 2021 later experiences substantial or high levels of community transmission while this Order is in effect, then that county will become subject to this Order as of the date the county begins experiencing substantial or high levels of community transmission. If a U.S. county that is covered by this Order no longer experiences substantial or high levels of community transmission for 14 consecutive days, then this Order will no longer apply in that county, unless and until the county again experiences substantial or high levels of community transmission while this Order is in effect.
In the Order, the CDC goes on to define what it means to be a county with a “substantial” and/or “high” level of community transmission and directs the public to its county-by-county map of community transmission levels:
FN 9: Counties experiencing substantial transmission levels are experiencing (1) 50.99-99.99 new cases in the county in the past 7 days divided by the population in the county multiplied by 100,000; and (2) 8.00-9.99% positive nucleic acid amplification tests in the past 7 days (number of positive tests in the county during the past 7 days divided by the total number of tests performed in the county during the past 7 days). . . . See COVID-19 Integrated County View, Centers for Disease Control and Prevention; https://covid.cdc.gov/covid-data-tracker/#county-view (last updated August 1, 2021).
FN 10: [D]efining high transmission levels as (1) > 100 new cases in the county in the past 7 days divided by the population in the county multiplied by 100,000; and (2) >10.00% positive nucleic acid amplification tests in the past 7 days (number of positive tests in the county during the past 7 days divided by the total number of tests performed in the county during the past 7 days)).
Importantly, on its website, the CDC publishes and updates a Map showing county levels of community transmission. To determine the level of community transmission for your county, you must select your state and county on the CDC Map, and the designated level of transmission for your county, per the CDC’s current data, will be shown.
As of today, the CDC reports that over 75 of Iowa’s 99 counties have substantial or high rates of transmission, including the counties of Polk, Dallas, Story, Linn, Black Hawk, and Pottawattamie. Further, over 80% of counties nationwide, where over 90% of the nation’s population resides, are designated by the CDC as areas of substantial or high levels of community transmission, with levels continuing to rise.
Other Reminders and Takeaways:
Landlords should be aware of the below noted existing and new provisions of the Order:
- The CDC Order is not an automatic stay of all evictions and does not relieve any tenant of paying rent. Instead, the CDC Order allows certain tenants to invoke the protections of the CDC Order in regard to nonpayment evictions if they properly submit a CDC Hardship Declaration or like form. *As of today, the CDC’s previously published Declaration template is not available; the aforementioned link currently directs you to a page providing that “The eviction moratorium expired on July 31, 2021.” Presumably, the CDC will republish its Declaration template later today or tomorrow.
- In regard to the applicability of the Order for past evictions and for tenants who have previously submitted a declaration, the Order provides as follows:
- Any evictions for nonpayment of rent initiated prior to issuance of this Order but not yet completed, are subject to this Order. Any tenant, lessee, or resident of a residential property who previously submitted a Declaration, still qualifies as a “Covered Person” and is still present in a rental unit is entitled to protections under this Order. Any eviction that was completed before issuance of this Order including from August 1 through August 3, 2021 is not subject to this Order, as it does not operate retroactively.
- A signed Declaration Form submitted under a previous order remains valid, and the covered person does not need to submit a new declaration under this Order.
- While the Order does not prohibit evictions for engaging in criminal activity, covered persons may not be evicted on the sole basis that they are alleged to have committed the crime of trespass (or similar state-law offense) where the underlying activity is a covered person remaining in a residential property despite nonpayment of rent.
- Individuals who are confirmed to have, who have been exposed to, or who might have COVID-19 and take reasonable precautions not to spread the disease should not be evicted on grounds that they pose a health or safety threat to other residents.
- Tenants are not obligated to use the CDC Hardship Declaration Form. Instead, tenants may use any written document in place of the Declaration Form so long as it includes the required information/elements as in the Declaration Form, is signed, and includes a perjury statement.
- In certain circumstances, such as individuals filing a joint tax return, it may be appropriate for one member of the residence to provide an executed Declaration on behalf of the other adult residents who are party to the lease, rental agreement, or housing contract.
Finally, as a reminder, this Order, as well as a prior version of the Order, expressly provide that the Order does not preclude a landlord from challenging the truthfulness of a tenant’s declaration in court, as permitted under state or local law.
However, the Iowa Supreme Court has previously entered Implementation Orders setting forth how Iowa courts should implement the CDC Order. The effect of the Iowa Implementation Orders has been most Iowa magistrates not allowing landlords to challenge the truthfulness of the declarations. More details are covered in prior blog posts.
Landlords with questions about this CDC Eviction Order should consult an experienced attorney.