On August 3, 2021, the CDC announced an order imposing a temporary moratorium on residential evictions to halt the further spread of Covid-19. The updated Order prohibits residential evictions of qualifying tenants in counties with substantial or high rates of community transmission of COVID-19 through October 3, 2021.
The widespread economic fallout from the COVID-19 pandemic created severe economic hardships for broad swaths of the American public. Job losses coupled with depleted personal financial reserves put millions of tenants at imminent risk of eviction.
On March 27, 2020, President Trump signed the CARES ACT which, among other things, included a four-month eviction moratorium for qualifying tenants. The CARES ACT eviction moratorium was extended by the CDC several times, but on 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, remained in effect until July 31, 2021, when it was allowed to expire.
On August 3, 2021, the CDC issued the new, targeted Order for a two-month moratorium on residential evictions in counties with substantial or high rates of community transmission of COVID-19.
The Order and its Application
The Order asserts that “the Delta variant is the predominant COVID strain circulating in the United States,” that it has “demonstrated increased levels of transmissibility compared to other variants,” and that it “has led to accelerated community transmission in the United States.” The CDC Order further notes that while COVID-19 vaccines are now widely available in the United States and over 163,000 million people have been fully vaccinated, there has been a rise in COVID-19 cases “primarily and disproportionately affecting the unvaccinated population” and the vaccination effort “has a slower rate of penetration among the populations most likely to experience eviction.”
The Order notes that while a historic amount of assistance for renters and landlords has been appropriated, much of it has not yet been disbursed. The Order will provide renters additional time to access this government assistance and help to avoid unnecessary evictions during this time of surging COVID-19 cases.
The Order prohibits residential evictions of qualified tenants in covered jurisdictions from August 3, 2021 through October 3,2021. Residential foreclosure is specifically excluded from the moratorium. A “qualified tenants” as used in the Order means residential tenants who have provided their landlord with a specific declaration (found on the CDC’s website) under penalty of perjury.
Limited Scope of Moratorium, but Severe Penalties for Violation
The Order prohibits eviction resulting from nonpayment of rent. A tenant’s other obligations under the lease/other occupancy agreement remain in effect and subject to enforcement by the landlord. Furthermore, the moratorium is a temporary measure in which the tenant’s rent obligations are deferred, not waived. 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 fines of up to $250,000 or one year in jail.
It remains unclear whether the CDC has the authority to issue the Order under the Public Health Service Act. The initial CDC nationwide eviction moratorium was challenged in a number of jurisdictions and repeatedly found to be unconstitutional. Whether the CDC’s narrower targeting in this new Order will withstand judicial scrutiny remains to be seen and several challenges have already been filed.
While the Order may achieve its goal of temporarily keeping many at-risk tenants in their homes, its economic ramifications are also unknown. With historic amounts of funds appropriated for rental assistance, the new moratorium will allow time for more tenants to access appropriated funds and prevent at least a portion of the anticipated surge in evictions that will otherwise occur when the moratorium expires.
Finally, it also remains unclear how courts will address jurisdictions that drop in and out of covered status as a particular county’s community transmission rates fluctuate. Given the significant penalties for violating the Order, it is unclear whether the onus will be on the courts or the lawyers to monitor community transmission rates to ensure that landlords do not run afoul of the new moratorium.