On August 3, 2021, the Centers for Disease and Control issued an Order that temporarily halts evictions on the basis of failure to pay rent and is in effect through October 3, 2021. At its core, the Order was promulgated to protect public health by preventing evicted individuals from potentially contributing to the interstate spread of COVID-19 through movement into close quarters or through homelessness.
This new Order comes on the heels of the CDC’s previous eviction moratorium, originally issued September 4, 2020, as extended numerous times, most recently through July 31, 2021. Substantially similar to its predecessor, with the noticeably new application to counties with heightened levels of community transmission of COVID-19, the Order applies to “covered persons,” which are defined as tenants, lessees, or residents who provide their landlord, owner of the property, or person who has the right to have them evicted a declaration under penalty of perjury that attests that he or she:
- has used best efforts to obtain available governmental assistance for rent or housing;
- either (i) earned no more than $99,000 (or $198,000 if filing jointly) in 2020 or expects to earn no more than same in 2021, (ii) was not required to report to the IRS any income in 2020, or (iii) received a stimulus check;
- is unable to pay full rent or make a full housing payment due to substantial loss of income, loss of compensable hours of work or wages, lay-off, or extraordinary out-of-pocket medical expenses;
- is using best efforts to make timely partial payments that are as close to the full rent payment as circumstances permit, taking into account other expenses;
- if evicted, would likely become homeless or be forced to move into close quarters due to there being no other available housing options; and
- resides in a U.S. county experiencing substantial or high rates of community transmission levels of SARS-CoV-2.
Worth noting, the Order does not relieve a tenant of obligations to pay rent or otherwise comply with obligations under the applicable agreement, and nothing in the Order precludes evictions for certain matters other than the failure to pay rent. The Order does, however, set forth criminal penalties for violating same—that is, moving to evict a “covered person.”
Most noticeably, this new Order applies only to certain areas that are experiencing “substantial” and/or “high” spread of the coronavirus, and that application is fluid—meaning, a county that was not covered under this Order on August 3rd may later be covered under the Order, and vice versa. As of August 5, 2021, the CDC, via its COVID Data Tracker, indicates that the entire state of Arkansas has a “high” level of community transmission, thereby deeming the entire state subject to the Order at this particular time.
As this situation continues to evolve, it is expected that the Order will face legal challenges, especially in light of President Biden’s concerns regarding its constitutionality and the United States Supreme Court’s recent June decision in the case of Alabama Association of Realtors, et al. v. Department of Health and Human Services, et al. There, in a 5-4 vote, the United States Supreme Court held the previous moratorium could remain in place until July 31, 2021, but Justice Kavanaugh—while voting to leave the ban in place in order to allow time for the distribution of congressionally appropriated rental assistance funds—made clear in his concurring opinion that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium” and that congressional approval and authorization (i.e., new legislation) was necessary to extend the moratorium past July 31, 2021. The latter did not happen; thus, challenges will inevitably ensue, primarily on grounds of overreach by the CDC. Those outcomes remain to be seen. Accordingly, until a court renders a ruling that strikes down the Order or until the Order expires without extension, landlords and property owners should remain vigilant in this ever-changing landscape.
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