Last week the federal Center for Disease Control issued an agency order with an effective date of September 4, 2020 which issued a moratorium on residential and commercial evictions until December 31, 2020. The order is meant to provide relief to people who have been economically impacted by the COVID-19 pandemic (and the government restrictions sprouting therefrom). It is also aimed at stopping the spread of COVID-19 by seeking to reduce new instances of homelessness as well as the instances of people moving in with family and friends or staying in shelters, the idea being that causing more people to be corralled together will serve to promote the spread of COVID-19.
That's all well and good, but what are the actual parameters of the order? I hear a lot of people calling this a "ban" on evictions, but that is not technically accurate. Let's take a look at what the order actually says.
No, Evictions are not Banned
The agency order, which can be viewed in its entirety here in the federal registry, does not in effect actually ban evictions. More accurately stated, the order places extremely heavy restrictions on a landlord's ability to evict. There are two major caveats to the order, however, which take a lot of the teeth out of this order despite what the media headlines have been indicating.
First, the protections in this order only apply to renters that qualify under the definition of a "covered person." A "covered person" as defined by the agency order is a tenant, lessee, etc., who meets the following criteria:
- The individual has first used best efforts to obtain all available government assistance for rent and housing. Any government assistance means just that, any government assistance from municipal, state, or federal level. If there is a government run program out there helping people pay rent or find affordable housing, then a tenant must have sought assistance from such a program before he is able to claim the protections of this order;
- The individual expects to make no more than $99,000 in income for the year 2020 (or no more than $198,000 if filing jointly);
- The individual is unable to pay the full rent payment due a substantial loss of household income, loss of work hours or wages, a lay off, or extraordinary out of pocket medical expenses;
- The individual is using best efforts to make at least partial payments towards rent;
- Eviction would likely make the individual homeless or force the individual to move into a shared living space in close quarters with others.
In addition, a tenant who has met those criteria must fill and and provide to his landlord a "declaration," which can be found attached to the agency order which asserts that he meets the criteria described above. The declaration must be signed under the penalty of perjury, and as such should not be taken lightly.
Even after meeting all of the above requirements, however, the protection is still limited. The agency order only prevents landlords from evicting covered persons specifically for non-payment of rent. That means even if you are a covered person, your landlord may still evict you for violating some other provision of your lease, or for any other lawful reason.
Yes, You are Still Required to Pay Rent
It should be clear from the section above that there are enough hoops for a tenant to jump through so that an individual cannot simply refuse to pay rent and think that they are safe from eviction. Not only are there plenty of tasks to complete for a person to benefit from the agency protection, but tenants are actually required to continue paying rent if they are able. If they are not able, then they are required to at the very least make partial payments towards their rent.
This is important to understand, and it is why calling this order a "ban" is borderline irresponsible. This order does not ignore the fact that landlords also have bills to pay and that tenants are still under a contractual obligation to their landlords. A tenant needs to make every effort possible (which will likely turn into quite a bit of work for themselves) to prevent an eviction.
The penalties for violating the CDC order are stiff, though it is unclear at the moment how the CDC plans on enforcing the order or applying the penalties. A person found to be in violation of this order may be subject to a fine of no more than $100,000 if the violation does not result in the death of a person, or one one year in jail, or both. If the violation results in a death, then the fine is raised to $250,000 and the violator may receive a sentence of one year in jail.
If the violator is an organization rather than a person, the organization may be subject to a $200,000 if no deaths were caused, or $500,000 in the event a death was caused by violation.
Already I am seeing articles popping up about this order being illegal and challenging the order based on vague Constitutional claims that it expands the power of the executive.
Personally, I see such challenges as being doomed to fail. Similarly to the lawsuit by Maine business owners which was recently dismissed in federal court, there is an issue here of clearly alleging a violation of a fundamental Constitutional right.
Without the violation of a fundamental right, any challenge will be analyzed using what is called the "rational basis test," which generally poses the question of Constitutionality like so: Is there a legitimate government purpose behind the challenged action or law? If yes, is the action or law rationally connected to furthering that legitimate government purpose? If yes, then the action or law is Constitutional. Rational basis review is almost intentionally designed to protect the government, and challenges reviewed under this standard almost always fail.
In terms of written statutory authority, the CDC derives its authority to make this order from 42 U.S.C 264, which delegates authority to the Surgeon General to promulgate regulations with the purpose of preventing the spread of communicable diseases, and 42 CFR 70.2, which permits the CDC to take measures aimed at preventing the spread of disease when it deems that state and local authorities have not taken sufficient measures themselves.
State and Local Laws
The September 4, 2020 agency order includes a provision declaring that the order does not prevent State and Local authorities from providing more protections to renters as they see fit and are legally capable of doing. This means that the protections laid out in the order are the floor, not the ceiling. If your state or municipality provides more expansive protections, then those protections are what controls in your particular situation.