COVID-19 Eviction Moratoria: New Rules Affecting Landlords and Tenants

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Authorities at the federal, state and local levels of government are enacting laws, emergency orders and local regulations temporarily prohibiting a landlord from evicting a tenant and prohibiting a lender from taking certain actions to foreclose loans (collectively, Eviction Moratoria) in an attempt to alleviate the impact of business closures and job losses that have resulted from efforts to contain the novel coronavirus (COVID-19).

It is important that tenants, landlords and lenders alike understand whether any Eviction Moratoria apply to their particular lease/loan so they can navigate this period of uncertainty.

This alert is intended to provide a brief overview of some of the types of Eviction Moratoria that have been enacted or otherwise implemented on a de facto basis.

Federal

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act), signed into law on March 27, introduced a moratorium on eviction for specified classes of residential property.[1] The CARES Act moratorium applies to “Covered Property,” which includes all property that has a federally backed mortgage loan or a federally backed multifamily mortgage loan.[2] Under the CARES Act, landlords of Covered Property are barred from filing new eviction actions for nonpayment of rent, although eviction actions that have already been filed are not affected.[3] The moratorium will last for 120 days beginning March 27 and ending July 27. During this period landlords may not charge fees or penalties for nonpayment of rent. The CARES Act also requires that after the end of the moratorium, a landlord may not evict a tenant unless the landlord provides 30 days’ written notice.[4]

The CARES Act also institutes new forbearance and foreclosure protections for borrowers with federally backed mortgage loans.[5] Under the CARES Act, borrowers with federally backed mortgage loans that are facing financial hardship due to the COVID-19 pandemic are entitled to request from their loan servicer a forbearance of up to 60 days, which can be extended for four periods of 30 days each.[6] In addition, servicers of federally backed mortgages may not begin a foreclosure for the 60-day period beginning on March 18 and continuing until May 18.

State

At the state level, a number of governors have instituted statewide moratoria on evictions or foreclosures by executive order. In New York, Gov. Andrew Cuomo’s Executive Order No. 202.8 states that “[t]here shall be no enforcement of either an eviction of any tenant residential or commercial, or a foreclosure of any residential or commercial property for a period of ninety days” beginning on March 7.[7] Other states, such as Illinois, have issued similar orders that apply to residential premises only.[8] Some states, such as Delaware, have issued moratoria on both residential evictions and residential foreclosures.[9]

State-level action has been predominantly by executive order to date, and the legislative response has been slow. This may be due to state legislatures being out of session or approaching their adjournment date when the COVID-19 pandemic became a national emergency. Legislatures may choose to reconvene in response to the emergency, and if they do, we are likely to see a second wave of state-level Eviction Moratoria. The few states that have taken legislative action may offer a glimpse of the form this second wave of state action will take. The Massachusetts Legislature, for example, has enacted HD 4935, which instructs courts not to hear or advance any eviction action, not to issue any writ of possession, and not to deny any stay of execution or continuance sought by a defendant in an eviction proceeding until the state of emergency is suspended.[10] The Massachusetts statute also instructs law enforcement not to enforce any eviction for the duration of the emergency.

Local

At the local government level, some municipalities are acting to prevent evictions with the sanction of their state government. In California, in addition to a 60-day statewide moratorium on residential evictions,[11] Gov. Gavin Newsom has issued an additional executive order that authorizes local governments to enact stricter moratoria.[12] Many municipalities in California have responded by instituting moratoria on evictions; however, they differ significantly. For example, San Francisco has a moratorium on residential evictions and commercial evictions for small and midsize businesses (which are defined as businesses with a license to operate and that have less than $25 million in annual gross receipts).[13] Fresno has moved to ban residential evictions and to ban commercial landlords from evicting commercial tenants for nonpayment of rent only in the situation where nonpayment has resulted from the business’s closure to prevent the spread of COVID-19.[14]

Other municipalities have enacted moratoria in the absence of state-level guidance. While New Mexico has not yet instituted a statewide moratorium on evictions, the mayor of Santa Fe has prohibited the eviction of residential and commercial tenants whose ability to pay rent has been adversely impacted by the COVID-19 emergency.[15]

Court Moratoria and Law Enforcement and Court Closures

Courts themselves have also instituted moratoria on evictions and foreclosures. A number of state supreme courts have acted to stop evictions statewide. For example, the Florida Supreme Court issued an order suspending the issuance of writs of possession,[16] and North Carolina Chief Justice Cheri Beasley has paused all eviction and foreclosure cases for 30 days (currently continuing until April 14).[17] Individual courts, such as Nevada’s Washoe County Justice Court, have also entered orders suspending or staying eviction proceedings.[18]

Some law enforcement agencies have instituted eviction enforcement moratoria. Some of these have been statewide and some have been local. These types of moratoria can take the form of official announcements from a sheriff’s office that evictions are suspended for the “foreseeable future,” as in Louisville, Kentucky.[19] Alternatively, some sheriff’s offices have simply announced that they are transferring sheriff’s deputies away from evictions and focusing on other areas of need, as was announced by the Denver, Colorado, Sheriff Department, effectively stopping any enforcement of eviction or foreclosure judgments.[20]

In a more general sense, all court actions, particularly civil actions such as evictions and foreclosures, have been slowed or stopped due to COVID-19-related court closures. Such closures effectively stay eviction and foreclosure actions where there is no formal moratorium, since there is no ability for a landlord or lender to prosecute the action.

Analysis

The federal-, state- and local-level Eviction Moratoria do not affect the obligation of tenants to pay rent, but rather provide interim protections for tenants against eviction due to nonpayment of rent. For example, the moratorium on evictions instituted by the city of Los Angeles, California, gives eligible tenants up to three months following the expiration of the local emergency period to repay any back-due rent.[21] Moratoria instituted on the court and law enforcement levels provide far less protection for tenants, as they provide only a stay of proceedings and do not prevent the tenant from being evicted at the end of the emergency (which could be declared at any time). Therefore, while many of these moratoria may provide a springboard for negotiating for delayed payment of rent, or payment of reduced rent to be made up at a later date, they are not a basis to argue for a break from rent altogether.

Conclusion

Whether you are a tenant, landlord, lender or borrower, knowing whether there is a moratorium in place in your area that has been implemented to address the challenge of the COVID-19 pandemic is critical as you interpret the obligations under your existing lease or loan, renegotiate the terms of your lease, or negotiate a new lease or loan during the current COVID-19 pandemic.

A number of websites, which are updated regularly, offer lists of impacted jurisdictions.[22]

It must be noted that this is a fluid and rapidly changing landscape. In just the past week, we have seen state and local jurisdictions generally reacting more proactively and in a more restrictive fashion as their rates of COVID-19 infection increase. With such action being taken at both state and local levels, the result is various levels of action (or inaction) within each state.

We are tracking these Eviction Moratoria through all 50 states. We have created a summary that is current as of APRIL 2, 2020.

[1] CARES Act §4024 “Temporary Moratorium on Eviction Filings.”
[2] CARES Act §4024(a)(2); “Covered Property” is also defined to include “covered housing programs” as defined in the Violence Against Women Act and property that participates in the “rural housing voucher program under section 542 of the Housing Act of 1949.”
[3] CARES Act §4024(b).
[4] CARES Act §4024(c).
[5] Pursuant to CARES Act §4022, the term ‘‘Federally backed mortgage loan’’ is defined to include “any loan which is secured by a first or subordinate lien on residential real property designed principally for the occupancy of from 1- to 4- families that is (A) insured by the Federal Housing Administration under title II of the National Housing Act (12 U.S.C. 1707 et seq.); (B) insured under section 255 of the National Housing Act (12 U.S.C. 1715z–20); (C) guaranteed under section 184 or 184A of the Housing and Community Development Act of 1992 (12 U.S.C. 1715z–13a, 1715z–13b); (D) guaranteed or insured by the Department of Veterans Affairs; (E) guaranteed or insured by the Department of Agriculture; (F) made by the Department of Agriculture; or (G) purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.”
[6] CARES Act §4022(b). Requests for the forbearance must be accompanied by an affirmation that the borrower is experiencing financial hardship.
[7] https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.
[8] https://www2.illinois.gov/IISNews/21288-Gov._Pritzker_Stay_at_Home_Order.pdf.
[9] https://governor.delaware.gov/wp-content/uploads/sites/24/2020/03/Sixth-Modification-to-State-of-Emergency-03242020.pdf.
[10] https://malegislature.gov/Bills/191/HD4935.
[11] https://www.gov.ca.gov/wp-content/uploads/2020/03/3.27.20-EO-N-37-20.pdf.
[12] https://www.gov.ca.gov/wp-content/uploads/2020/03/3.16.20-Executive-Order.pdf.
[13] https://sfmayor.org/news?page=1.
[14] https://www.fresno.gov/wp-content/uploads/2020/03/Ord-2020-010-Adding-Section-2-514-to-the-Municipal-Code-Regarding-COVID-19-Pandemic-Emergency.pdf.
[15] https://www.sfreporter.com/news/2020/03/18/santa-fe-mayor-announces-eviction-freeze/.
[16] https://www.floridasupremecourt.org/content/download/632431/7186205/AOSC20-17.pdf.
[17] https://www.chiefjusticebeasley.com/news/nc-courts-stop-evictions-and-foreclosures-as-part-of-coronavirus-response/.
[18] https://www.washoecounty.us/rjc/files/news/Amended_Administrative_Order_3192020.pdf.
[19] https://www.courier-journal.com/story/news/politics/metro-government/2020/03/17/louisville-jefferson-county-kentucky-ceases-evictions-time-being-amid-coronavirus/5064564002/.
[20] https://www.denvergov.org/content/denvergov/en/mayors-office/newsroom/2020/city-and-county-of-denver-covid-19-response-update.html.
[21] https://www.lamayor.org/sites/g/files/wph446/f/article/files/Mayor%20Garcetti%20Emergency%20Order%20-%20March%2015%202020.pdf.
[22] https://www.nolo.com/legal-encyclopedia/emergency-bans-on-evictions-and-other-tenant-protections-related-to-coronavirus.html; https://www.fool.com/millionacres/real-estate-market/articles/cities-and-states-that-have-paused-evictions-due-to-covid-19/.

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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