CDC Order – Federal Information
The Centers for Disease Control originally announced the publication of an Order on Sept. 4, 2020, creating a “Temporary Halt on Evictions” program applicable to tenants who have suffered economic impacts as a result of the COVID-19 pandemic and fallen behind on their rent. By providing a “CDC Declaration form” to their Landlord, tenants establish their eligibility to temporarily delay the final process of eviction for non-payment of rent. The Order originally prevented such tenants from being removed from their homes until after Jan. 1, 2021.
This date was extended to July 31, 2021, with the CDC declaring it would be the final extension. The Supreme Court ruled in early July that no extension of the Order would be legal unless authorized by an Act of Congress. Congress went into recess on July 30th with no action on such an authorization, bringing the CDC Order to an end on July 31st.
Update – August 27, 2021
Thursday evening, the Supreme Court issued an Opinion that blocked the Biden administration’s recently reissued CDC Order, which had protected eligible tenants from actual eviction from their rental homes. “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it,” the court wrote in an unsigned, eight-page opinion.
In the unsigned eight-page majority opinion the Supreme Court stated the CDC, in barring evictions, relied on “a decades-old statute that authorizes it to implement measures like fumigation and pest extermination” and “strains credulity to believe that this statue grants the CDC the sweeping authority that asserts”
What does this mean?
This means that starting on Aug. 27th, evictions will no longer be “halted” by CDC Declarations. Cases that are in the process anywhere in the nation can now proceed all the way to a conclusion, when necessary, up to and including lock-out/set-out. A couple of important additional items, however, are worth raising for you as reminders:
1.) The CARES Act is still the law today and was not impacted by the Supreme Court’s decision. So, “Covered Properties” should still expect to send 30-day notices to tenants prior to filing cases for ‘non-payment of rent’, as those NTVs will likely remain required into the foreseeable future;
2.) ALL landlords remain subject to the terms and conditions agreed to as part of rental assistance programs they take part in. We encourage our clients to ALWAYS provide us with copies of all written rental assistance program documentation with any new case submissions, so we can review them and advise of any issues raised by those Agreements.
Want to learn more about the Supreme Court Decision? Click the button below to get the L&B Guide!
What does the Order do?
According to the CDC, the Order “temporarily halts residential evictions of covered persons for nonpayment of rent. This means that a landlord, owner of a residential property, or other person with a legal right to pursue an eviction or a possessory action cannot evict for nonpayment of rent any covered person from any residential property in any U.S. state or U.S. territory where the Order applies.”
Who is a “covered person” for the purposes of this Order?
- The individual has used their best efforts to obtain all available government assistance for rent or housing;
- The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020-2021 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
- The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses.
- The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses.
- Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.
For NC Only as of June 29, 2021:
See previous email campaign regarding the cancelation of Governor Cooper’s executive orders.
- There is no longer an obligation to provide a blank CDC Declaration form prior to filing a Complaint in Summary Ejectment, and no accompanying Affidavit must be submitted to the Court
- The “One CDC Declaration per Household” rule is no longer in effect – under the CDC Order, only a tenant who provides their own Declaration is protected from being evicted; this standard will now revert back to being the “law of the land” in NC, as well. (i.e. If ALL tenants do not submit a CDC Declaration, then for cases filed starting tomorrow, there is nothing that prohibits a lockout of the tenants who did not provide their own Declarations.)
- The 5-day deadline to notify the Court of receipt of a CDC Declaration will no longer be the rule. (NOTE: we still advise notifying your attorneys of ALL CDC Declarations received and our Team will continue to inquire about them at every stage of the process, to try and prevent any from slipping through the cracks)
- CDC Challenge Hearings – it remains unclear how the Courts will handle CDC Challenge hearings going forward. What is clear is that the obligation to submit a written response to a CDC Declaration that you would like to challenge has ended and the obligation to have a separate hearing on the CDC Challenge may also have ended – this will likely be further clarified in the days ahead, so stay tuned for more information on this front.
- Finally, the HOPE Program protections will end today, as well: the Governor’s requirement that Landlords must treat all applicants who received confirmation from the HOPE program of the acceptance of an application as if they were protected by a CDC Declaration will expire, also. Starting tomorrow, then, only the Landlord’s Agreement to accept rental housing assistance will affect the Landlord’s ability to move ahead with a needed eviction case. (Reminder: all Landlord’s Agreements for acceptance of Rental Assistance payments typically include provisions that restrict your ability to seek eviction of the tenant who is receiving the assistance. Please provide these Agreements to your attorneys in every instance for our review!)
Links to help you navigate this Order:
8/3/21: From the NAA: “At the direction of the President, the U.S. Centers of Disease Control and Prevention (CDC) today announced a new, limited federal eviction moratorium through October 3. It is important to note that key elements of the previous order remain,
6/24/21: From the NAA: “On June 24, the U.S. Centers for Disease Control and Prevention (CDC) extended its Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19 through July 31. The CDC Order (“the Order”) keeps the modifications added during the March 28 extension in place, while the core elements of the Order remain the same – the CDC has claimed that this extension will be the last and the federal government must abide by their word and allow the moratorium to expire. In The New York Times, the National Apartment Association (NAA) expressed extreme disappointment that the Administration extended their federal moratorium yet again and recognizes the gravity of this move and vast ramifications it has on rental housing operations.” …click here to read more
5/6/21: “Federal Court News: on May 5, a federal judge from the U.S. District Court for the District of Columbia issued a ruling voiding the U.S. Centers for Disease Control and Prevention’s (CDC) eviction moratorium order, but then on May 6, the same judge considered and then ruled on an emergency Motion filed by the Department of Justice after they filed their Notice of Appeal. This means that the CDC Order is still in effect, but stay tuned for more updates as this critical legal battle unfolds.”
3/29/21: The Center for Disease Control and Prevention (CDC) has extended the national ban on evictions through the end of June. The eviction ban had been scheduled to expire at the end of March.
The CDC’s eviction ban applies to individuals who earn less than $99,000 a year and couples who make under $198,000. To qualify, renters also have to attest on a declaration to their landlord that they’re unable to afford their rent and that being evicted could result in them doubling up with others or becoming homeless. Read the full order here: https://www.cdc.gov/coronavirus/2019-ncov/more/pdf/CDC-Eviction-Moratorium-03292021.pdf.
Our initial review of the Order reveals that there are few substantive changes to the Order that is currently in place. We’ll also be looking out for any new Orders from the Chief Justices in NC/SC/GA, as well as from NC Governor Cooper; as soon as we hear anything, of course, we will pass that on to you.
3/12/21: “Federal Court News: two different Federal Courts (one in Texas and one in Ohio) have issued opinions that cast doubt on the validity of the CDC’s Order: in the Texas case Lauren Terkel v. Center for Disease Control and Prevention, the Court ruled that the CDC’s Order was actually unconstitutional and therefore invalid; that ruling has already been appealed by the Dept. of Justice. In the Ohio case SKYWORKS, LTD v. Center for Disease Control and Prevention, the Court took a different approach and held that the CDC’s Order was issued in violation of federal law on Regulatory Agency Rulemaking and is therefore not valid and enforceable; this decision has not been (but certainly will be) appealed, yet.”
1/21/21: One of the first Executive Orders issued was to empower the new CDC Director; Dr. Rochelle P. Walensky, MD, MPH, to extend the CDC Order through March 31st. Dr. Rochelle issued the following statement yesterday:
“As a protective public health measure, I will extend the current order temporarily halting residential evictions until at least March 31, 2021. The COVID-19 pandemic has presented a historic threat to our nation’s health. It has also triggered a housing affordability crisis that disproportionately affects some communities.
Despite extensive mitigation efforts, COVID-19 continues to spread in America at a concerning pace. We must act to get cases down and keep people in their homes and out of congregate settings — like shelters — where COVID-19 can take an even stronger foothold.”
12/22/20: Congress passed COVID Stimulus Bill, extending CDC order for 30 days. – The Consolidated Appropriations Act of 2021.
10/30/20: Brown v. Azar Order – The Federal court hearing the legal challenge to the CDC Order issued on Sept. 4.
9/3/20: HHS/CDC Temporary halt in residential evictions to prevent the further spread of COVID-19 press release and FAQ.
Does the CDC Order prevent me from filing non-payment evictions?
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.
When I receive a Declaration, what does that prevent me from doing?
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.
How do I challenge a CDC Declaration that may be invalid?
Is this an eviction moratorium?
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.
Does this apply to ALL tenants?
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.
What do I do if I receive a CDC Declaration?
Make a note of the date that you received it and upload it using this form.
Is this order permanent?
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. The CDC issued an Order on June 24th stating that the FINAL extension of its original Order will expire on July 31, 2021. On August 3rd, the CDC Director Reversed Course and extended the Order until October 3, 2021.
After that, (barring new legislative or regulatory changes), any pending cases waiting for hearings, and any lockouts that were not completed by the Sheriff should be able to proceed for any tenants who have not gotten caught up or moved out.