The Paletz Law Blog

CDC Orders Temporary Halt of Evictions: What Landlords Need to Know

When one thinks of housing governmental regulatory agencies, it is doubtful that the first one that comes to mind is the Centers for Disease Control and Prevention (CDC). Effective September 4, 2020, the CDC issued an Order titled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19”[1]. This highly questionable Order, which continues through December 31, 2020, does not by itself prevent a landlord from initiating an eviction lawsuit. Nonetheless, it does prevent an eviction if a tenant meets certain criteria. The tenant must provide a signed sworn statement known as a Declaration that affirms:

• The tenant has used their best efforts to obtain available assistance for rent;
• The tenant was eligible to receive a stimulus check under the CARES Act, or has an annual income of no more than $99K for an individual, or $198K for a family;
• The tenant is not able to pay rent due to substantial loss of income, wages, or hours, or because of extraordinary out-of-pocket medical expenses;
• The tenant is using their best efforts to make partial rent payments; and
• The tenant has no other available housing options.

Regardless of one’s political views, there should be some consensus that a governmental agency charged with the duty of health prevention has no business implementing housing regulations. A global pandemic is not a local infestation and it is inappropriate to use it as a tenuous linkage to justify this unacceptable expansion of power and set this extremely dangerous precedent.

Just as landlords are trying to cope with this new requirement from an unlikely source, courts around the country are struggling to interpret this CDC Order and are being inconsistent in their adjudications. Some are unilaterally dismissing wholesale dockets until January 2021. Others are requiring specific forms that now impose a duty on the landlord to make certain representations. While still others will allow matters to proceed on a case-by-case basis.

Paletz Law’s position is it is certainly reasonable to challenge the validity of a signed CDC Declaration. However, the method to do so must be respectful and non-threatening. If it was received prior to suit, then a dialogue could be initiated followed up by some correspondence to ascertain if, for example, the tenant has exhausted all means of obtaining payment assistance. After all, if you are a landlord in MI, then the Eviction Diversion Program (EDP) expressly provides for assistance. So, not only is this available to the tenant, thus negating their CDC Declaration from the start because the tenant did not exhaust all avenues of payment, but also a 7 Day Demand must be issued as a pre-requisite to explore the EDP process.

For cases that have already been filed and are pending with the court, if a landlord receives a signed CDC Declaration, they should notify their attorney immediately. At that point, options can be assessed on how best to challenge it. In my opinion, this should be interpreted as an affirmative defense subject to review. For example, this could be in the form of cross-examination of the tenant or seeking formal discovery to investigate their financial circumstances.

Keep in mind the CDC Order is poorly worded and unclear. It does not expressly state that a CDC Declaration may or may not be challenged. Plus, if you are found to be in violation, there may be substantial fines and criminal penalties.

Bottom Line: The CDC, a governmental agency that has nothing to do with housing, should stay in its own lane. For landlords, it will be up to them if they wish to challenge the validity of the CDC Declaration. If so, then a determination is necessary based on when it is received, i.e. at the pre-suit phase or while a case is pending, and always on the advice of counsel.

[1] https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19