The federal Centers for Disease Control and Prevention (CDC) will formally issue an Order under Section 361 of the Public Health Service Act to temporarily halt residential evictions effective on September 4 and lasting until at least December 31, 2020. The purpose of the eviction prohibition is to, “to prevent the further spread of COVID-19.”
The CDC’s order applies to all renters, including manufactured homes (though the order say “mobile home”) and lots in manufactured home communities. The Order supersedes any state or local order to the contrary and applies nationwide. Only local orders or prohibitions that are more restrictive than the CDC’s order remain effective. Meaning the CDC’s order is a minimum “floor” as it relates to halting residential evictions.
The formal Order will be posted in the Federal Register on Friday, but until then the content of the order is available for review, and summarized below.
Again, the applicability of the order goes to all landlords, owners of a residential property, or other persons with a legal right to pursue eviction or possessory action and prohibit any eviction of any “covered person” from any residential property.
“Residential property” - means any property leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes, but shall not include any hotel, motel, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.
The tenant is still responsible for the payment of rent. The Order, “does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.” Meaning all rent and other related fees and charges are still incurred, however, failure to meet these obligations cannot result in an eviction until December 31, 2020.
The following acts are still subject to evictions and are not impacted by the CDC order:
- Engaging in criminal activity while on the premises;
- Threatening the health or safety of other residents;
- Damaging or posing an immediate and significant risk of damage to property;
- Violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or
- Violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).
There are possible criminal penalties associated for violating this order. They are:
- A person violating this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law.
- An organization violating this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law.
Any tenant(s) covered and who choose to avail themselves of the eviction prohibitions under the Order must make a Declaration of the following:
- The tenant must provide the Declaration to the landlord or property owner;
- The Declaration must be made by each adult listed on the lease;
- In the Declaration the tenant(s) must certify as true the following:
- I have used best efforts to obtain all available government assistance for rent or housing;
- I either expect to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
- I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;
- I am 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 nondiscretionary expenses;
- If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options.
- I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract.
- I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.
- I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to State and local laws.
- I understand that any false or misleading statements or omissions may result in criminal and civil actions for fines, penalties, damages, or imprisonment.
The Order only addresses halting evictions and does not address the financial impact or obligations of the landlord or property owner. Under the Order there are no similar offsetting relief provisions for the payment obligations or other expenses (taxes, insurance, fees, etc.) of the landlord or property owner.
TMHA expects this Order to have an extensive impact on our manufactured home community operators.
And while it is uncertain to know at this early stage the outcome of any specific legal challenges that might be brought directed at this Order, we have been monitoring similar court challenges throughout the country to local eviction prohibitions. To date, we are unaware of any court ruling that the government action was improper and beyond its authority. Including the most recent ruling out of Massachusetts on August 26, where the court denied a plaintiff property owner’s challenge to the state’s eviction moratoriums. Though we certainly expect many more challenges and the elevation of these issues to higher appellate levels in the near future.