COVID-19: CDC Residential Eviction Moratorium Allowed to Expire (Updated) | Practical Law

COVID-19: CDC Residential Eviction Moratorium Allowed to Expire (Updated) | Practical Law

The Centers for Disease Control and Prevention (CDC) announced a four-month residential eviction moratorium for tenants suffering financial hardships caused by the 2019 novel coronavirus disease (COVID-19) global pandemic. The moratorium was originally extended through June 30, 2021 and was again extended through July 31, 2021. On June 29, 2021, the United States Supreme Court declined to vacate the stay of a district court ruling that had invalidated the moratorium. The moratorium was allowed to expire as scheduled.

COVID-19: CDC Residential Eviction Moratorium Allowed to Expire (Updated)

Practical Law Legal Update w-027-2624 (Approx. 7 pages)

COVID-19: CDC Residential Eviction Moratorium Allowed to Expire (Updated)

by Practical Law Real Estate (Updated)
Published on 01 Jul 2021 • USA (National/Federal)
The Centers for Disease Control and Prevention (CDC) announced a four-month residential eviction moratorium for tenants suffering financial hardships caused by the 2019 novel coronavirus disease (COVID-19) global pandemic. The moratorium was originally extended through June 30, 2021 and was again extended through July 31, 2021. On June 29, 2021, the United States Supreme Court declined to vacate the stay of a district court ruling that had invalidated the moratorium. The moratorium was allowed to expire as scheduled.
Update: On July 14, 2021, in Brown v. Department of Health and Human Services ( (11th Cir. July 14, 2021)), the Eleventh Circuit Court of Appeals affirmed a district court's order denying a preliminary injunction challenging the CDC's authority to enforce its eviction moratorium because the plaintiffs (several landlords seeking to evict their tenants for nonpayment of rent and a trade association for owners and managers of rental housing) failed to show they are likely to suffer irreparable harm resulting from the CDC moratorium.
Update: On June 29, 2021, in Alabama Association of Realtors v. Department of Health and Human Services ( (U.S. June 29,2021)), the United States Supreme Court rejected an emergency petition to vacate the stay of a district court ruling that had invalidated the CDC moratorium. As a result, the moratorium, as extended, remains in effect. For more information on the district court ruling, see Legal Update, Federal District Court Judge Rules that the CDC Lacks Authority to Impose Nationwide Eviction Moratorium.
Update: On June 24, 2021, the Centers for Disease Control and Prevention (CDC) issued a further order extending its moratorium on residential evictions. Effective July 1, 2021, the Order prohibits residential evictions of qualifying tenants through July 31, 2021.
Update: On March 28, 2021, the CDC issued an order extending its moratorium on residential evictions. Effective April 1, 2021, the Order prohibits residential evictions of qualifying tenants through June 30, 2021.
On September 1, 2020, the CDC, announced an order imposing a temporary moratorium on residential evictions to halt the further spread of the 2019 novel coronavirus disease (COVID-19) (Order). Effective September 4, 2020 when published in the Federal Register, the Order prohibits residential evictions of qualifying tenants through December 31, 2020.

Background

The widespread economic fallout from the COVID-19 pandemic has created severe economic hardships for broad swaths of the American public. Job losses coupled with depleted personal financial reserves have put millions of tenants at imminent risk of eviction.
On March 27, 2020, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES ACT) (PL 116-136) which, among other things, included a four-month eviction moratorium for qualifying tenants. The CARES ACT eviction moratorium expired on July 24, 2020 but landlords were prohibited from requiring tenants to vacate the leased premises until August 27, 2020. For more information on tenant protections under the CARES ACT, see Legal Update, COVID-19: Federal CARES Act Stimulus Provides Relief for Federally Backed Residential and Multifamily Mortgage Loans: Tenant Protections.
On August 8, 2020, President Trump signed an Executive Order requiring the Secretary of Health and Human Services and the Director of the CDC to determine whether a temporary moratorium on residential evictions was necessary to prevent the further spread of COVID-19.
On September 1, 2020, the CDC announced the issuance of the Order under Section 361 of the Public Health Service Act (42 U.S. Code § 264; 42 CFR § 70.2).
For more information on federal, state, and private lending foreclosure and payment relief programs related to the COVID-19 pandemic, see Practice Note, COVID-19: Residential Mortgage Foreclosure and Payment Relief Programs (Federal, State, and Select Private Lenders).

The Order

Rationale

The Order asserts that "Covid-19 presents a historic threat to public health," comparing it to the 1918 Spanish Flu pandemic which killed 675,000 people in the United States. The CDC Order further notes that while federal, state, and local governments have taken unprecedented measures to control the COVID-19 pandemic, those measures have not stopped the spread of COVID-19 in the United States and "further action is needed."
The Order justifies the imposition of the moratorium on the need to maximize self-quarantining, isolation, and social distancing. The Order notes that eviction moratoria:
  • Facilitate self-isolation for people who may be:
    • exposed to COVID-19;
    • ill with COVID-19; or
    • high-risk individuals.
  • Allow state and local authorities to better implement directives designed to prevent community spread of the disease.
  • Protect public health by preventing increased homelessness which increases both:
    • the risk of infection; and
    • the severity of the disease for infected individuals.
  • Prevent overcrowding in homeless shelters impairing the ability of the shelters to employ infection control measures.

Authority

The CDC bases its authority to issue the Order on Section 361 of the Public Health Service Act (42 U.S.C. Ch. 6A) and on 42 CFR § 70.2 which reads:
"§ 70.2 Measures in the event of inadequate local control. Whenever the Director of the Centers for Disease Control and Prevention determines that the measures taken by health authorities of any State or possession (including political subdivisions thereof) are insufficient to prevent the spread of any of the communicable diseases from such State or possession to any other State or possession, he/she may take such measures to prevent such spread of the diseases as he/she deems reasonably necessary, including inspection, fumigation, disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be sources of infection."

Application

The Order prohibits residential evictions of qualified tenants in covered jurisdictions from September 4, 2020 through December 21, 2020. Residential foreclosure is specifically excluded from the moratorium.

Qualified Tenants

The Order applies to residential tenants who provide their landlord with a declaration (Declaration) under penalty of perjury indicating that the tenant:
  • Has used best efforts to obtain all available government assistance for rent or housing.
  • Satisfies one of the following income qualifications because the tenant:
    • expects to earn no more than $99,000 in annual income for calendar year 2020 (or no more than $198,000 if filing jointly); or
    • was not required to report any income to the Internal Revenue Service for calendar year 2019; or
    • received a stimulus check under the CARES ACT.
  • Is unable to pay the full amount of its rent due to:
    • a substantial loss of household income;
    • a reduction in work hours or wages;
    • a lay-off; or
    • extraordinary out-of-pocket medical expenses.
  • Is using best efforts to pay as much of its rental obligation as possible, after considering other nondiscretionary expenses.
  • Would be rendered homeless or forced to move into a shared-living setting as the result of an eviction.
The sample form of the Declaration is attached to the Order on page 33.

Covered Jurisdictions

The Order does not apply in any state, local, territorial, or tribal jurisdiction that has an existing eviction moratorium providing equal or greater public health protections than are set forth in the Order. Further, the Order does not prohibit any jurisdiction from imposing stricter or additional public health protections than those set forth in the Order.
For more information on state and local eviction moratoriums, see Practice Note, COVID-19: Commercial and Residential Tenant Eviction Moratoriums Select State and Local Laws Tracker (US).

Definition of Residential Property

Residential property subject to the Order is broadly defined as any property leased for residential purposes, including any:
  • House.
  • Building.
  • Mobile home or land in a mobile home park.
  • Similar dwelling.
The Order is not applicable to any:
  • Hotel.
  • Motel.
  • Guest house rented on a temporary or seasonal basis.

Limited Scope of Moratorium

The Order prohibits eviction resulting from non-payment of rent. A tenant's other obligations under the lease or other occupancy agreement remain in effect and subject to enforcement by the landlord, including eviction of the tenant for:
  • Engaging in criminal activity on the premises.
  • Threatening the health or safety of other residents.
  • Damaging or posing an imminent risk of significant damage to the premises.
  • Violating any codes, ordinances, or regulations related to health and safety.
  • Breaching any contractual obligation of the tenant regarding the premises, other than the non-payment of rent or penalties.

Continuing Rent and Other Lease Obligations

The moratorium is a temporary measure in which the tenant's rent obligations are deferred, not waived. On the expiration of the moratorium, landlords shall have the right to:
  • Collect the full amount of tenant's unpaid rent.
  • Charge any fees, penalties, or interest due for the failure to timely pay rent, to the extent provided in the lease or other occupancy agreement.
  • Pursue all remedies available to the landlord under the occupancy contract or available under applicable law.

Penalties

The Order imposes steep penalties for its violation by a landlord. An individual who evicts a tenant in violation of the Order is subject to:
  • A fine not exceeding $100,000 or one year in jail or both, if the eviction does not result in a death.
  • A fine not exceeding $250,000 or one year in jail or both, if the eviction results in a death.
An entity that evicts a tenant in violation of the Order is subject to:
  • A fine not exceeding $200,000 per eviction, if the eviction does not result in a death.
  • A fine not exceeding $500,000 per eviction, if the eviction results in a death.

Practical Implications

It remains unclear whether the CDC has the authority to issue the Order under the Public Health Service Act and more specifically under 42 CFR § 70.2. The CDC has adopted a very aggressive interpretation of 42 CFR § 70.2, which has been challenged in a number of jurisdictions with conflicting results (see Legal Update, Ohio Federal Judge Declares US CDC Residential Eviction Moratorium Unconstitutional).
Whether an eviction moratorium falls within the intended ambit of the law and whether the CDC's finding of reasonable necessity will withstand judicial scrutiny remains to be seen as challenges continue.
Regardless of whether the Order is properly authorized, other questions remain. While the Order may achieve its goal of keeping many at-risk tenants in their homes, its economic ramifications are unknown. Unlike the earlier eviction moratorium under the CARES ACT, the Order, even as extended, does not provide any additional funds for rent relief. The Order simply defers the date on which unpaid rent must be paid, leaving tenants to seek out financial assistance from other federal and state programs (see Legal Update, The American Rescue Plan Act of 2021 Provides Continued Rental and Other Housing Assistance).
For updated information on commercial and residential eviction moratoriums, see COVID-19: Commercial and Residential Tenant Eviction Moratoriums Select State and Local Laws Tracker (US). For a continuously updated collection of resources addressing COVID-19, see Practical Law's Real Estate Global Coronavirus Toolkit.