By Kate Goodrich
On Tuesday, September 1, the Trump administration announced an order, put forward by the Centers for Disease Control and Prevention, that claims to suspend residential evictions through the end of the year for many tenants who have been affected by financial hardships caused by the coronavirus pandemic. This eviction protection is broader and will include protections for more tenants than the previous eviction moratorium under the CARES Act, which expired in July.
It is important to note that this order does not relieve tenants of their obligation to pay rent, and does not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent on a timely basis. The unpaid rent may be required by the housing provider in full once the temporary eviction moratorium expires on December 31, 2020. However, this order will halt evictions that are already in process, and prevent any further eviction actions being brought forward until the end of year.
To receive the temporary eviction protection, tenants must certify under penalty of perjury in a self-assessment declaration that they meet the following five-pronged test:
Although the CDC order does not specifically afford landlords with a procedural means to challenge a tenant’s self-assessment that they are a “covered person” under the order, ensuing litigation may provide some judicial guidance as to the scope of that term. Litigation may also result in judicial guidance as to the CDC’s authority to issue this order.
The order provides that it does not apply in “any state, local territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protection than the” order does. For information about state and local orders regarding residential evictions in Texas since the outset of the COVID-19 crisis, see previous updates from Jackson Walker below.
This order is effective from the date it is published in the federal register, which is scheduled for September 4, 2020, through December 31, 2020, and could possibly be extended.
Tenants’ self-assessment forms will be available on the CDC website once the order is published in the Federal Register.
The Texas Supreme Court has extended the moratorium on residential eviction procedures for CARES Act applicable residences until September 30, 2020, offering a few more weeks of relief to certain renters as the economic fallout of the coronavirus drags on in to the fall.
In its 24th emergency order, the Texas Supreme Court prolonged the limitations on residential eviction proceedings filed from March 27, 2020, through September 30, 2020. As in the Court’s 20th emergency order, issued on July 21, 2020, landlords filing an eviction action must file a sworn petition containing “a description of the facts and grounds for eviction” required by Texas Rule of Civil Procedure 510.3(a)(2) that includes:
A judge continues to have the authority under Texas Rule of Civil Procedure 500.6 to develop the facts of the case, including whether or not the premises is a “covered dwelling” and the plaintiff is a “multifamily borrower” under forbearance subject to Sections 4024 and 4023 of the CARES Act, respectively.
The emergency order is effective immediately and will expire on September 30, unless it is further extended by the Court.
By Kate Goodrich & Eve Searls
In response to the COVID-19 pandemic, the federal government, the state of Texas, and local jurisdictions have adopted various protections for tenants to help them stay in their homes. Because those protections generally focus on residential tenants, this article is limited to residential landlord-tenant relationships and does not address commercial tenancies.
The 120-day moratorium on evictions that was included in the federal CARES Act expired on Friday, July 24. The current Senate Republican package for the next round of coronavirus relief does not reinstate the moratorium, though some Democrats have indicated they will try to negotiate for that tenant protection.
Landlords covered under the moratorium must still provide tenants with a 30-day notice before proceeding with an eviction action.
The following properties are covered by the CARES Act protections:
In addition, on June 17, the Federal Housing Finance Agency extended its own eviction moratorium until at least August 31. The moratorium applies to properties financed by Fannie Mae and Freddie Mac.
On August 8, President Trump issued an Executive Order regarding the prevention of foreclosures and evictions in the wake of the pandemic, in response to the end of the CARES Act moratorium and the stalled Senate negotiations over a replacement bill. The order declines to extend the moratorium, but directs federal housing agencies to assist renters and homeowners, and directs the Department of Health and Human Services and the Centers for Disease Control and Prevention to consider whether an additional eviction moratorium is reasonably necessary to prevent the spread of COVID-19.
The Texas Supreme Court halted residential eviction proceedings statewide in March, but that moratorium has since expired. Statewide, eviction proceedings were allowed to resume on May 19, 2020, with the exception of some local jurisdictions which have implemented their own moratoriums or temporary reprieves. As those local limits expire, courts operating at reduced capacity to promote social distancing are expected to start attempting to clear a backlog of eviction cases.
The Texas Supreme Court issued an order on July 21 requiring eviction petitions to include a statement regarding whether, pursuant to the CARES Act:
This order expires August 24.
Generally speaking, Texas law does not afford tenants an automatic right to catch up on past-due rent, or what is known as the right to cure default. During the pandemic, the various state and local moratoriums did not forgive past-due rent, and tenants are generally still responsible for rent they have not paid unless their lease provides otherwise. Only a few cities have established grace periods purport to allow tenants the right to cure. In parts of the state without those grace periods, the Texas Property Code does not prohibit landlords from beginning the eviction process.
On August 7, 2020, Texas Attorney General Ken Paxton issued an opinion that cities and counties cannot stop evictions under their local disaster declarations. Under Texas law, Paxton’s opinion is nonbinding and does not have any immediate impact on local eviction orders, but could be raised in future litigation centered on the enforceability of those local orders.
Right to cure/grace period to catch up on rent
Rent caps/Rent control
Local policies governing eviction notices and hearings: