Yes, there is an eviction moratorium … sort of
Quite a few landlords have called my office lately with one question — is there an eviction moratorium and what does that mean for me?
The answer to that question is there is a federal eviction moratorium, but it still possible to file suit against tenants and remove them for a number of reasons.
First off, it is a good idea to take a look at the federal moratorium issued by the Centers for Disease Control and Prevention (CDC) at 85 Fed. Reg. 55,292. You can read the entire public law here or a summary of it here.
The moratorium applies only to be who are eligible for relief under it. To be eligible, a person must be able to demonstrate that:
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- The individual has used best efforts to obtain all available government assistance for rent or housing;
- The individual either (i) expects to earn no more than $99,000 in annual income for the 2020 calendar year (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (i.e., stimulus check) pursuant to Section 2201 of the CARES Act;
- The individual 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 individual 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—because the individual has no other available housing options.
In order to claim eligibility, each adult on a lease is advised to fill out a declaration stating the above conditions are true and then submit that to their landlord. A copy of the form can be found here.
So, there are a few things to keep in mind. First of all, the moratorium expires on Dec. 31, 2020, meaning that all past due rent is due after the expiration or an eviction may move forward. More importantly, a tenant is required to make best efforts to make partial payments that are as close to the full rental payment as possible — a lot of tenants are not eligible because they fail to meet this requirement of the moratorium. The notion that someone can simply not pay rent and rely on the moratorium to save them from an eviction is largely false.
Moreover, bear in mind that the moratorium says nothing about protecting people who violate their leases in other ways. A tenant could be current on rent, but could still be evicted if they do something else that goes against the lease — causing physical damage to the property, engaging in illegal activities, filling the property with dogs, etc.
So, it is often possible to evict a tenant in spite of the moratorium. There are, however, some things to keep in mind. First of all, we don’t know if the moratorium will be extended past Dec. 31. It could be that the Donald Trump administration will extend it, and it could be that Joe Biden (assuming he is sworn in as president on Jan. 20) will extend the moratorium or come up with something even more restrictive. Like everything else related to COVID-19, figuring out what comes next often boils down to guesswork.
So, what should landlords do when trying to decide whether to evict a tenant? It’s not a bad idea to pick up a phone and ask an attorney — consultations are free at my office and we have successfully evicted a number of tenants in spite of the moratorium.