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!)