Updates on the CDC’s Order: A “Temporary Halt” for Nonpayment Evictions

We will be updating this page when new information is released. Please check back regularly.

The Centers for Disease Control announced the publication of an Order on Sept. 4th, 2020, to create an “Eviction Suspension” program for tenants who have suffered economic impacts as a result of the COVID-19 pandemic and fallen behind on their rent. By providing a Declaration to their Landlord, tenants facing eviction for non-payment of rent can prevent being removed from their homes until after Jan. 1, 2021.

9/3/2020: Guidance on CDC Order Temporarily Halting Certain Evictions (NAA Members-Only version here)

Source: National Apartment Association (NAA)

10/9/2020: NEW Official Guidance (FAQs) issued by the CDC

10/21/2020: Looking at answering the question “Am I allowed to file new evictions after I receive a Declaration?” Read more below…

10/28/2020  URGENT UPDATE: NC Gov. Cooper issues Executive Order 171 information and FAQ. Declaration Forms here. Remember, EO 171 now clarifies that it is IMPERATIVE that you notify us (and provide a copy!) every time you receive a Declaration for any case you have submitted to us for filing. (NC Only)

10/30/2020Brown v. Azar Order – the Federal Court hearing the legal challenge to the CDC Order issued on Sept. 4th issued an Order (all 66 pages of it if you click the link!) that contained two confirming statements. First, the Court ruled that the Order itself was validly issued by the CDC, which has been widely questioned. But Second, the Court also ruled that Landlords are NOT limited in their access to the Courts or in their ability to pursue their claims against tenants who have not paid rent. The Court found that the only actual limitation imposed on Landlords by the Order is to delay the removal of tenants who have provided valid Declarations from their dwellings (see pg. 42)

*NEW* 12/22/20Congress Passes COVID Stimulus Bill, Extends CDC Order for 30 days. On Dec. 22, 2020, Congress passed the Consolidated Appropriations Act of 2021. That Act included a provision that extended the expiration of the CDC Order from the original 12/31/20 date by one month, through Jan. 31, 2021. So, all deadlines relating to CDC Declarations and their effect on cases will be carried over for one more month, through the end of January. We are hopeful that this will be the only extension, but check back here for more updates as they become available in the coming weeks!


NEW

Q: 11/16/2020: When my tenant gives me a Declaration, what does that prevent me from doing?

A:  In its Order of Oct. 29th (Brown v. Azar Order), the Court made clear that a Landlord should only be prohibited from doing one thing after a Tenant provides them with a completed CDC Declaration form: remove them from the Leased Premises by lockout/setout. Nothing else should be prohibited, according to the Court. That means that Landlords should still be permitted to: serve late letters; charge late fees; send Notices of Termination; file new eviction cases for any reason (even non-payment); hold hearings on those cases; obtain Judgments from the Courts. The Landlord just may not ask the Court to enforce that Judgment by a Writ and a lockout/setout. That’s all, according to the Federal Court in Brown.

10/28/2020: What does Gov. Cooper’s new Executive Order require if I want to file new evictions? (NC Only)

A: This FAQ document contains LOTS of helpful information about this and other questions, but the most important change is that every Landlord in NC must provide every tenant that they plan to file a case against (no matter what the basis of the case is) with a copy of the CDC Declaration form before the submit the case to us for approval and filing. The case must ALSO be accompanied by an affidavit confirming the Declaration form was provided.

10/28/2020: How does Gov. Cooper’s new Executive Order help me as a Landlord? (NC Only)

A. This FAQ document has lots of helpful answers. Still, one benefit of the Executive Order is that every Landlord is entitled to a hearing to question a tenant who has tendered a Declaration and may not actually meet the criteria to qualify for the “temporary halt” in their eviction case.

Q: Does the CDC Order prevent me from even filing non-payment evictions?

A. As mentioned in the NEW FAQ document from CDC, evictions for non-payment of rent can continue to be filed, even after the resident(s) have provided the required Declaration to their Landlord. The case might not be allowed to proceed to Judgment, depending on the location and the Judge (a continuance is the other option for the Judge). However, the case can still be filed, and the process started.  Moreover, even if you receive a valid declaration, evictions for any reason other than monetary default may still proceed through the entire process, as those claims are not part of the “temporary halt” the Order permits for non-payment cases.

Please refer to this document from NAA for more information.
Q: Is this an eviction moratorium?

A: No, it’s not. Many are using the term moratorium as a convenient way to short-hand the content of the Order. The proposed Order would actually create a protocol in the nature of a “lockout suspension program” and not a ‘moratorium’ in any sense. The Order actually uses the words “temporary halt” to describe the effect on lockouts/setouts/removals and makes it clear that it can only be utilized in cases filed for non-payment of rent.

Q: Does this apply to ALL tenants?
A. The program only applies to eligible tenants, NOT all tenants. If all tenants in a rental unit submit to the Landlord a written Declaration, under penalty of perjury, that they meet the Order’s ‘qualifying criteria,’ they may temporarily halt a lockout/setout. However, not all tenants will meet the criteria, and their cases would therefore not be covered by this Order.
Q: Is the Order permanent?
A: The effect of the Order is not permanent. The Order itself contemplates a “temporary halt” and would prevent ONLY actions that result in removing the tenant from the dwelling, and only until Dec. 31, 2020. After that, barring new legislative or regulatory changes, lockouts should be able to proceed for any tenants who have not gotten caught up or moved out.
The National Apartment Association (NAA) reported being deeply concerned by this action and given that it remains uncoupled with robust emergency rental assistance,  saying “they understand the devastating effects a national eviction moratorium will have on the apartment industry, housing affordability, and America’s 40 million apartment residents.”
Update 12/22/20

Congress passed their new COVID-19 Relief Bill (along with many others), and in it, they included a short provision (page 2281) that simply says that the CDC Order issued on Sept. 4th, will be extended by Congress, and now will not expire until Jan. 31st, 2021. What that means for your active cases: any pending (or future) Writs will not be available until Feb. 1, 2021, for any case where the resident submitted a CDC Declaration. REMINDER: If you receive a CDC Declaration from a resident at any time, please be sure to submit it to our firm via our CDC Declaration contact page.

The other, bigger, piece of the Stimulus Bill provides a housing subsidy program (starts on page 2255) to be administered by the States, and that will be done on a state-by-state basis, but will likely be similar to, or an extension of, the HOPE Program in NC.

*NEW* Update 12/31/20 

Yesterday afternoon, Governor Cooper has issued a new Executive Order, #184. This Order extends the end date of his prior Executive Order #171 (detailed here: https://bit.ly/3hv7AQu) by an additional 30 days; no other tweaks were made. In other words, all of the same rules from the previous Order remain in place (protections for HOPE Program applicants, blank CDC Declarations being provided to all tenants before filing an eviction action, etc…) — just the expiration date has been changed. Those requirements have simply all been extended and will remain in place through January 31, 2021.

See here for the Order: https://files.nc.gov/governor/documents/files/EO184-Evictions-Extension-and-Unemployment-Ins-Claims.pdf

We will update you as soon as we have more information. Our team is ready and willing to assist you, and please contact us if you have any questions