By Brian Skinner, Esq.
On September 1, the Trump administration issued an order that is intended to protect tenants who can’t afford to pay rent from eviction. The order comes at a time when state and local bans imposed at the beginning of the pandemic are expiring.
I recently wrote about the high cost of evictions to families and the economy. As the eviction bans expire and millions of people remain unemployed, advocacy organizations warned that without protections as many as 30 to 40 million renters would be at risk of eviction for failing to pay their rent.
The order, issued by the Centers for Disease Control and Prevention (CDC) and the U.S. Department of Health and Human Services (HHS), is intended to supplement state and local bans, and specifically provides more stringent state and local bans will remain in place. The CDC’s order follows the moratorium contained in the CARES Act, which expired on July 24. The CARES Act moratorium only covered the 12.3 million renters who live in federally backed housing, about 28% of the nation’s 43 million renters. This new order is much broader and is applicable to all tenants making less than $99,000 per year, or $198,000 if filing jointly, who are unable to pay their rent.
The CDC issued the order to address public health concerns resulting from wide-spread evictions which would severely hamper efforts to reduce the spread of COVID-19. The order notes that state and local authorities will struggle to implement stay-at-home measures or social distancing directives if people are evicted and move into housing with family and friends or into homeless shelters, which risk becoming overcrowded.
To gain the order’s protections, tenants will have to sign a form for their landlord testifying that they have “used best efforts” to pay on time and would likely become homeless should they be evicted. Tenants must also agree to make their best efforts to give landlords partial payments “as close to the full payment as the individual’s circumstances may permit.”
Tenants must further certify that they have used best efforts to obtain government assistance for rent—something that isn’t necessarily as easy as it sounds, as rental assistance funds have run dry in many cities. Renters in Houston, for example, claimed all of the $15 million assistance fund in just 90 minutes. House Democrats have proposed up to $100 billion in rental assistance, but like several coronavirus relief bills, the measure is still languishing in Congress.
Notably, the order does not cover people in hotels, motels, or other temporary housing situations. Renters who lost housing early in the pandemic and moved to motels have been frequent targets for evictions in many states, a trend that seems set to continue under the latest order.
The order does not cancel rent, nor does it prevent landlords from adding late fees or interest for missed payments. Landlords are still allowed to evict tenants for reasons other than non-payment of rent, and can require the full amount of all missed rent on December 31, 2020. Landlords may be subject to a fine up to $100,000 and a year in jail for violating the terms of the order—but the order is vague on enforcement, which is set to come from HHS and “cooperating state and local officials.”
The New York Times recently provides a terrific guide to the order and how to use it.
As noted above, this order does not absolve tenants of past due rent, late fees or interest. Consequently, it will still be necessary for the federal government to provide at least $100 billion in emergency rental assistance and a prohibition on fees and penalties for those who need extra time to pay their rent. This step, along with an extension of federally enhanced unemployment benefits would significantly decrease the number of potential evictions and foreclosures while also significantly reducing the public and private costs of mass evictions.
Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.