Navigating the Intricacies of the Federal Eviction Moratorium

On September 1, 2020, the Trump Administration – specifically, the Centers for Disease Control and Prevention, or CDC – issued an eviction “moratorium” through the end of the year.  Readers of media headlines might be led to believe that all evictions must stop.  However, the 37-page Agency Order that implements the temporary halt of evictions, pursuant to public health laws, does not cover all evictions.

To maintain their rights while avoiding penalties for violation of the moratorium, landlords should know the circumstances under which eviction proceedings can and can’t be filed.  While each case is best evaluated with the assistance of a lawyer, some limitations of the moratorium include:

  1. It only halts residential evictions and does not apply to commercial leases.
  2. It appears to only halt evictions based on non-payment of rent. Tenants can still be evicted for reasons including:  engaging in criminal activity on the premises; threatening the health and safety of other residents; damaging property; violating health and safety laws; or violating “any other contractual obligation, other than the timely payment of rent or similar housing-related payment.”  (Whether a tenant can be evicted for “holding over” after the expiration of the lease term is not expressly addressed.)
  3. It only applies to “covered persons.” To be covered, a tenant must provide their landlord with a written declaration that they:
  • Have used their best efforts to obtain any available government housing assistance;
  • Expect to earn less than $99,000 (or $198,000 for a married couple) in 2020, or otherwise are below certain financial thresholds;
  • Are unable to pay full rent due to “substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses”;
  • Are using their best efforts to make partial payments;
  • Would likely become homeless (or would need to move into “close quarters” with others), if evicted.
  1. It does not stop rent from accruing, late fees from being imposed, or collection efforts other than eviction – such as suing for a “money judgment.”

The moratorium has been criticized by landlords and tenants alike.  Notably, it deprives landlords of their primary leverage to enforce rent obligations, without providing financial assistance to landlords who were relying on their rents to cover their mortgages and other financial commitments.  Meanwhile, many tenants complain that the order merely postpones evictions for a few months and will result in an onslaught of evictions on January 1, as rent arrearages “pile up.”

While the soundness of the moratorium may be subject to debate from a policy perspective, landlords should pay close attention to it, regardless.  Violations of the moratorium can be punished by criminal penalties – as high as one year in jail or a $500,000 fine.

Elliot A. Fus

Elliot has practiced law for over 20 years and is a member of the Federal, North Carolina and Forsyth County bar associations. He is an experienced litigator with major case experience in state and federal courts and in private arbitrations. Elliot has a broad range of experience with landlord-tenant disputes in contexts ranging from shopping centers to affordable housing complexes.