Special Alert: Gov. Cooper’s Executive Order 171

This afternoon, Governor Cooper unexpectedly issued a new Executive Order affecting eviction filings for the State through (at least) Dec. 31. This Executive Order was summarized by our friends at the Apartment Association of North Carolina, and their summary is below.

We are aware that AANC is in communication with the Governor’s Office in order to get additional information and guidance before the Order takes effect at the end of the day on Friday. We are also writing to provide you with a copy of the FAQ document that the Governor’s office put out, so that you can read it for yourself and get some additional background information in the meantime.

Starting next week, then, expect that there will be new and additional requirements in place that we will have to comply with before our Firm can undertake the filing of any new eviction cases. What those are and how they will operate are unknown at this point, but rest assured that we will provide an additional update before Monday, once we know more.

And remember – EO 171 now makes clear that it is IMPERATIVE that you notify us (and provide a copy!) every time you receive a Declaration for any case that you have submitted to us for filing.

As always, we thank you for your trust and continued business.

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UPDATE FROM AANC- 10/28/2020

Good Afternoon,

Today Governor Cooper issued Executive Order 171 which will become effective at 5PM on Friday, October 30th. Below you will find a detailed breakdown of the Order by AANC General Counsel Norm Praet. The association will reach out to the Chief Justice and the Administrative Office of Courts to confirm that an affidavit will be forthcoming from the courts to satisfy the requirement of Section 1.

Executive Order 171
CDC Declaration Form
Frequently Asked Questions for Executive Order 171

[AANC] was not aware of the Order prior to the issuance. However, the CDC Order specifically provides that states can supply more restrictive eviction guidelines and this order appears to be consistent with that directive. The association will continue to review the order and provide any additional information.

This executive order clarifies and extends the CDC Orders as follows:

  1. In an action commenced on or after 5pm on October, 30, prior to filing for a summary ejectment action the landlord must execute an affidavit and present it to the court certifying that the landlord has provided the residential tenant with a blank copy of the CDC Declaration form.
  2. Only 1 declaration is required per home, despite the CDC Order.
  3. The Executive Order only precludes evictions for nonpayment or late payment if a CDC Declaration is received and not successfully challenged.
  4. In the event the landlord believes the action should still proceed despite the filing of the Declaration, the landlord shall submit to the court a response to the Declaration identifying in writing why the landlord believes the action should still proceed despite the protections of the CDC Order. For example, the landlord may respond by indicating that the eviction is for a reason other than nonpayment or late payment of rent. A hearing to determine whether the action should proceed shall be held according to the timeline for hearings for eviction proceedings, or as otherwise established by the court.
  5. Upon receiving a Declaration, the landlord shall take no actions to request a writ of possession, and the landlord is not entitled to the writ, but the landlord may submit a response to the Declaration and request a hearing as provided in Section 4 of this summary.
  6. If a court determines that the eviction should proceed under Section 4 of this summary, and ultimately enters a judgment against the tenant, nothing in this Executive Order prohibits a landlord from requesting a writ of possession, and the landlord shall be legally entitled to a writ of possession in those circumstances.
  7. In actions pending on or commenced after the date of the Executive Order, a landlord who has been provided with a tenant’s Declaration pursuant to the CDC Order shall immediately notify the court that such Declaration has been received and shall submit a copy of the Declaration to the court within five (5) days of receipt.
  8. The protections from eviction of this Executive Order shall extend to those residential tenants who have applied for the HOPE program and have been notified that they have met the eligibility criteria for participation in the HOPE program, even if those residential tenants would not qualify for protection from eviction under the CDC Order. Once the landlord has executed the HOPE Landlord-Tenant Agreement, the tenant shall be protected from eviction under the terms of that Agreement, and not under this Executive Order.

As always, if there are any questions please do not hesitate to reach out.