Eviction Moratorium Extended Yet Again

August 4, 2021 | COVID | Current Events | Landlord

On August 3, 2021, the Centers for Disease Control and Prevention (“CDC”) announced another extension of its eviction Moratorium (“the Moratorium”). This article compares and contrasts the new Moratorium with previous iterations.

What has Changed?

The new Moratorium applies on a somewhat more restricted basis, at least in theory. Instead of applying in any state or territory in which there are documented cases of COVID-19, as in the previous versions of the Moratorium, the new order only applies in U.S. counties experiencing “substantial” and ”high” levels of COVID community transmission as defined by the CDC.

Individuals can check the current status of any given county by accessing the CDC’s website here. The Moratorium specifies that if a county who was not experiencing “substantial” or “high” levels of community transmission as of August 3, 2021, but later does experience such levels, that county will become subject to the Moratorium. Similarly, if a county is at any point covered by the Moratorium, but experiences less than “substantial” or “high” levels of community transmission for 14 consecutive days, than the Moratorium will not apply to that county.

Because the application of this Moratorium is based on a metric that is a moving target, landlords are urged to check the CDC website linked above, and review the relevant county(ies) on the interactive map, before taking steps to evict a tenant for nonpayment of rent.

The Moratorium applies to any eviction for nonpayment of rent initiated but not completed prior to the issuance of the current Moratorium. What will happen with cases pending in court will depend on the local court’s procedures for handling such matters. At least some Wisconsin county circuit courts have adjourned, or postponed, hearing dates on filed eviction cases to which the Moratorium applies until after the expiration date of the Moratorium; presumably, they will do so again.

The Moratorium is effective through October 3.

What Remains the Same?

The actual terms of the Moratorium remain largely the same as the previous iteration (you can review our relevant KEW Tips here and here). The intent of the Moratorium is to suspend evictions for nonpayment of rent for any covered person, the definition of which has not changed. As a reminder, a “covered person” is a tenant/resident who provides their landlord with a declaration under penalty of perjury that:

• The tenant has used best efforts to obtain all available government assistance for rent and housing;
• The tenant either i) earned no more than $99,999 (or 198,000 if filing jointly) in Calendar Year 2020, or expects to earn no more than $99,000 in annual income for Calendar Year 20201 (or no more than $198,000 if filing a joint tax return), ii) was not required to report any income in 2020 to the IRS, or iii) received an Economic Impact Payment stimulus check;
• The tenant is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
• The tenant is 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; and
• Eviction would likely render the individual homeless or force the individual to move into and live in close quarters in a new congregate or shared living setting.

Landlords may challenge the veracity of a tenant’s declaration. However, a tenant who has provided such a declaration in the past, during previous iterations of the Moratorium need not provide a new one, so long as the information remains truthful and accurate.

Further, the CDC continues to recognize that, while every tenant in a rental unit should provide a declaration, there may be circumstances where it may be appropriate for one member of a residence to sign a declaration on behalf of all other adult residents, such as when individuals in the residence are filing a joint tax return. Finally, the CDC continues to allow a tenant to submit “any written document in place of the Declaration Form if it includes the required information as in the Form, is signed, and includes a[n acknowledgement that the tenant can be liable for perjury if being untruthful].”

Other Considerations

The Moratorium order authorizes criminal penalties of up to $500,000 and a year in jail for violations for the Moratorium.

On a related note, the Bureau of Consumer Financial Protection issued an interim final rule pertaining to the Fair Debt Collection Practices Act (“FDCPA”), effective May 3, 2021, that impacts debt collectors pursuing evictions during the life of the Moratorium. Debt collectors engaged in the collection of debt may now be found in violation of the FDCPA if they fail to include language informing tenants “for whom the CDC Order might reasonable apply” of their potential eligibility for protections under the Moratorium in the “earliest of any written notice that state law requires to be provided to a consumer before an eviction may be filed”.  This rule was tied to the CDC Moratorium, now extended until October 3, it is safe to assume this rule applies until then as well.

Finally, the United States Supreme Court may weigh in on the matter. The Supreme Court addressed a challenge to the constitutionality of the Moratorium in an opinion issued June 29, 2021. The Court upheld the Moratorium on a 5-4 vote. Justice Kavanaugh was one of the five Justices voting to maintain the Moratorium. However, he explicitly noted in his concurring opinion that he “agree[d]…that the [CDC] exceeded its existing statutory authority by issuing a nationwide eviction Moratorium.” In Justice Kavanaugh’s view, “clear and specific congressional authorization…would be necessary for the CDC to extend the Moratorium past July 31.” However, he sided with the majority in support of the previous Moratorium “on balance of equities” because that previous Moratorium was due to expire in short order and allowing it to continue would allow distribution of additional rental aid.  It is unclear if Justice Kavanaugh, or any of his colleagues, would vote the same way when faced with a renewed Moratorium.

As always, if you have questions about your rights and obligations as a landlord under the latest Moratorium, or any other COVID-related orders, feel free to contact Kramer, Elkins & Watt, LLC at 608-709-7115 or info@kewlaw.com.