UPDATE: CDC Director Dr. Rochelle Walensky has signed an extension to the eviction moratorium further preventing the eviction of tenants who are unable to make rental payments. The moratorium that was scheduled to expire on June 30, 2021 is now extended through July 31, 2021 and this is intended to be the final extension of the moratorium. The COVID-19 pandemic has presented a historic threat to the nation’s public health. Keeping people in their homes and out of crowded or congregate settings — like homeless shelters — by preventing evictions is a key step in helping to stop the spread of COVID-19.
UPDATE: The Consolidated Appropriations Act, 2021 [Including Coronavirus Stimulus & Relief] just enacted into law allocates rental assistance to U.S. territories, tribal communities and to states and cities with populations of 200,000 or more. Each state will receive a minimum of $200 million, and Oklahoma’s share is estimated to be Approximately $263 million.
At least 90% of the funds must be used to provide financial assistance, including back and forward rent and utility payments, and other housing expenses. Assistance can be provided for 12 months. States and localities can provide an additional 3 months of assistance ?if necessary to ensure housing stability for a household.? When providing forward rent, assistance can only be given for 3 months, though households can subsequently reapply for additional assistance. To the extent that households have back rent, states and localities may not make commitments for forward rent payments unless they have also provided assistance to reduce an eligible household?s rental arrears.
Under this new legislation, cities and states can make payments directly to landlords or utility companies on behalf of renters. If a landlord refuses to accept the rental assistance, cities and states can give assistance directly to the renter, who can then make payments to the landlord or utility provider. The legislation also allows landlords and property owners to aid tenants in applying for assistance or applying on the renter?s behalf. If a landlord applies for assistance on behalf of their tenant, the tenant must cosign the application, the landlord must provide the tenant documentation of the application, and the payments must be used to pay the tenant?s rental obligations.
Funds must be used for households with incomes below 80% of area median income (AMI), and states and localities must prioritize households below 50% of AMI or those who are unemployed and have been unemployed for 90-days. Income determination would be based on either the household?s total income in 2020, or the monthly income the household is receiving at the time of application. If income determinations are made based on the applicant?s monthly income, the state or locality must re-determine eligibility after 3 months. The AMI for the Tulsa County Oklahoma area was $57,483 in 2019 and 2020 county income data will not be released in September of 2021.
Under the bill, households are eligible for emergency rental assistance funds if one or more individuals: (1) has qualified for unemployment benefits or can attest in writing that he or she has experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due, directly or indirectly, to the pandemic; (2) can demonstrate a risk of experiencing homelessness or housing instability; and (3) has a household income below 80% AMI ($45,986 for Tulsa County).
UPDATE: The Consolidated Appropriations Act, 2021 [Including Coronavirus Stimulus & Relief] just enacted into law extends the temporary eviction moratorium through January 31, 2021. It also provides $25 billion in tax-free rental assistance. More to come on the latter.
On September 1, 2020, the Centers for Disease Control and Prevention (CDC) issued an order temporarily halting residential evictions to prevent the further spread of COVID-19. Since that time, Huddleston Law Offices has received many questions from concerned landlords and tenants regarding how the CDC?s order works. The following Frequently Asked Questions (FAQs) have been developed to address questions raised. This FAQ contains my opinions provided in an attempt to assist you in understanding the provisions of the CDC?s order. However, some responses are ultimately a matter of judicial interpretation.
Q1: When does this order go into effect?
A1: By its terms, the order becomes effective on the ?date of publication in the Federal Register.? The order includes a notation that the publication date is expected to be September 4, 2020.
Q2: Does the CDC’s order halt all evictions?
A2: No. The order states that ?a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.? The Order further indicates that a tenant can still be evicted for:
- Engaging in criminal activity while on the premises;?
- Threatening the health or safety of other residents;?
- Damaging or posing an immediate and significant risk of damage to property;?
- Violating any applicable building code, health ordinance, or similar regulation relating to health and safety;? or
- Violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).?
Q3: Who is a covered person under the CDC order?
A3: The order states that a covered person means ?any tenant, lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action, a declaration under penalty of perjury indicating that:
- 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 Calendar Year 2020 (or no more than $198,000 if filing a joint 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 (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 layoff, 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.?
Q4: What is the Declaration in question 3?
A4: The order states, To invoke the CDC’s order these persons must provide an executed copy of the Declaration form (or a similar declaration under penalty of perjury) to their landlord, owner of the residential property where they live, or other person who has a right to have them evicted or removed from where they live.
Q5: Can the court accept filings or can the landlord obtain a judgment to be executed when the moratorium lifts?
A5: It depends. The order defines evict and eviction as any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property. The language in the order: any action . . . to remove or cause the removal of is a matter of judicial interpretation.
Q6: Does the CDC’s order affect the contractual obligations of renters to pay rent?
A6: No. The order states that it ?has no effect on the contractual obligations of renters to pay rent and shall not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.?
Q7: Does the CDC Order apply to commercial properties?
A7: No. The order applies to residential properties only. Residential property is defined as any property leased for residential purposes, including any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes, but shall not include any hotel, motel, or other guest house rented to a temporary guest or seasonal tenant as defined under the laws of the State, territorial, tribal, or local jurisdiction.
Q8: Does this order include foreclosure on a home mortgage?
A8: No. The order ?does not include foreclosure on a home mortgage.?
Q9: Does the CDC moratorium apply to Oklahoma?
A9: Yes. The order ?shall be enforced by Federal authorities and cooperating State and local authorities through the provisions of 18 U.S.C 3559, 3571; 42 U.S.C 243, 268, 271; and 42 CFR 70.18.?
Q10: When does the CDC’s order expire?
A10: The order states that it will remain in effect, unless extended, modified, or rescinded, through December 31, 2020 (now July 31, 2021).
Q11: Is there a penalty for violating the CDC’s order?
A11: Yes. The order states that a person violating this Order may be subject to a fine of no more than $100,000.00 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000.00 if the violation results in a death or one year in jail, or both, or as otherwise provided by law. An organization violating this Order may be subject to a fine of no more than $200,000.00 per event if the violation does not result in a death or $500,000.00 per event if the violation results in a death or as otherwise provided by law. Landlords considering filing eviction proceedings for one of the reasons permitted by the CDC Order should therefore exercise caution and be certain of their grounds for eviction. Eviction proceedings in the current climate are likely to draw additional judicial scrutiny.
Q12: Who would prosecute for violations of this order?
A12: The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.
Q13: What Should a Landlord Do If It Receives a CDC Declaration from a Tenant?
A13: If a landlord receives a CDC Declaration from a tenant, the landlord should respond in writing to the tenant to encourage the tenant to make partial payments of rent to the extent the tenant is able, in accordance with the CDC Declaration eligibility requirements. Additionally, the landlord’s written correspondence should remind tenants that: a) the rent and late fees are not forgiven, b) the rent will ultimately have to be paid or the tenant will be evicted, c) the tenant could eventually be subject to collection activities, and d) eviction proceedings are publicly available on OSCN.NET for prospective landlords to see. Additionally, many tenants may not be aware of the government assistance programs that are available to tenants to help tenants pay their rent during the COVID-19 Pandemic. Landlords should include a list of available resources that tenants can use to pay their rent. The Department of Housing and Urban Development (HUD) has stated that nonprofits that received Emergency Solutions Grants (ESG) or Community Development Block Grant (CDBG) funds under the CARES Act may use these funds to provide temporary rental assistance to tenants. The following websites provide information on federal assistance that is available: www.hudexchange.info/programsupport; https://www.hud.gov/coronaviru; and https://home.treasury.gov/policyissues/cares/state-and-local-governments. Additionally, many local jurisdictions have instituted their own relief programs and have their own resources available. In Tulsa rent assistance is distributed via a program that you can learn more about here: https://www.tulsahousing.org/. #TulsaCARES
The orders and laws related to the COVID-19 Pandemic are changing on a daily basis and Oklahoma and Tulsa County may enact stricter rules related to evictions. A landlord should verify the rules currently affecting their property before filing an eviction.