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:

• “[E]ngaging in criminal activity while on the premises;”
• “[T]hreatening the health or safety of other residents;”
• “[D]amaging or posing an immediate and significant risk of damage to property;”
• “[V]iolating any applicable building code, health ordinance, or similar regulation relating to health and safety;” or
• “[V]iolating 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:

1. The individual has used best efforts to obtain all available government assistance for rent or housing;
2. 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;
3. [T]he 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;
4. [T]he 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
5. [E]viction 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.”

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.

The Federal Housing Administration (“FHA”) announced another extension of its foreclosure and eviction moratorium through December 31, 2020 for homeowners with an FHA-insured single-family mortgage covered under the CARES Act.

This extension means the FHA has now provided more than nine months of foreclosure and eviction relief to FHA-insured homeowners. As this is a continuation of the moratorium put in place in March of this year, the protections continue to apply to homeowners with FHA-insured Title II Single Family forward and Home Equity Conversion (“reverse”) mortgages.

On August 27 FHFA announced that Fannie and Freddie are extending their foreclosure and eviction moratorium to December 31, 2020. FHA made a similar announcement. (See Mortgagee Letter 2020-27.) The purpose of the Mortgagee Letter is to inform mortgagees of an extension to the foreclosure and eviction moratorium originally issued in ML 2020-4, extended in ML 2020-13, and further extended in ML 2020-19 for borrowers with FHA-insured Single Family mortgages covered under the Coronavirus Aid, Relief, and Economic Security (CARES) Act for an additional period through December 31, 2020. The extension of the moratorium announced in the ML is effective immediately upon the expiration of the moratorium announced in ML 2020-19 for all FHA-insured mortgages except for FHA-insured mortgages secured by vacant or abandoned properties.

Today, the reservation lands guaranteed to the five tribes in the 1866 treaty area are almost entirely owned by non-tribal members as private property. This is the legacy of the Oklahoma Enabling Act of 1906 as well as various Congressional allotment acts – or so-called “Indian homesteading” laws – in which treaty lands held by tribes were parceled out to individual tribal members, with the bulk of the remaining lands declared surplus and sold to non-Indians. McGirt , No. 18-9526, 591 U.S. ___ (decided July 9, 2020), does not alter land ownership, but it does uphold the 1866 treaty in another way. In a 5-4 decision, the Court held that the Creek Nation’s 1866 treaty area, which includes the City of Tulsa and about one-third of the state, was never eliminated (the legal term in the Court’s precedent is “disestablished”) for purposes of the Creek Nation’s exercise of its inherent sovereign power to prosecute crimes involving Indians. More specifically, an 1885 statute, the Major Crimes Act (MCA) permits the federal government to exercise criminal jurisdiction over certain felonies arising on Indian reservations.

Under the MCA, federal officials – including the Federal Bureau of Investigation’s Indian Country Crimes Unit; the United States Attorney’s Offices; and U.S. Magistrate Judges and U.S. District Court Judges – may exercise criminal jurisdiction concurrently with tribal governments within the exterior boundaries of about half of the Indian reservations in the United States. The MCA only comes into play when members of federally recognized Indian tribes are either the alleged perpetrators or victims of the specific offenses listed in the MCA. The Supreme Court has long held that there is no double jeopardy when such concurrent jurisdiction is exercised by tribes and the federal government over the same or similar criminal offenses. Just as it is with federal and state prosecutions, the separate sovereigns each have the right to enforce their own criminal laws.

The ability of a landlord to evict a tenant during the COVID-19 outbreak is severely limited by executive or judicial orders issued in response to the pandemic. Most courts have limited operations and some have suspended residential and commercial evictions in addition to the CARES Act (discussed in a separate Blawg post).

In the absence of the ready availability of judicial eviction proceedings, landlords are asking if they can use self-help methods to evict or lock out tenants. In Oklahoma, the answer is a resounding “NO!” For example, in the Oklahoma Residential Landlord and Tenant Act, the landlord’s self-help remedies are outright eliminated, and the landlord is required to pursue judicial remedies only. Commercial landlords may think that the self-help remedies carefully detailed in their leases are enforceable as written. But they are not! Landlords may enforce their rights only by the judicial process despite language to the contrary in their commercial leases. See, Parker Livestock, LLC v. Okla. City Nat’l Stock Yards Co. (W.D. Okla., 2015) (An action for forcible entry and detainer is the exclusive procedure for ousting a both residential and commercial tenants.).

Thus, self-help measures, such as changing locks, cutting off utilities, or removing tenant property, may expose a landlord to civil damages, and a landlord should carefully consider and seek legal advice before acting. The statutory penalty for a wrongful residential eviction is two (2) times the rent for the period of the eviction until the property is restored to the tenant, plus attorney fees and court costs.

Demand for Cleaning and Quiet Enjoyment

Cleaning issues are likely to take center stage after the outbreak ends and business restrictions are lifted. Even if not expressly provided for in the lease or demanded by the tenant, landlords should take reasonable steps to maintain the property during and after the outbreak, following CDC guidelines for proper cleaning and disinfection.

Failing to maintain the property or failing to take appropriate steps to clean the property and prevent the spread of disease may be grounds for a breach of the landlord’s covenant of quiet enjoyment or for constructive eviction. Constructive eviction is a high bar, but issues related to the pandemic will provide opportunities for the development of case law applicable to our current circumstances.

As the length of business shutdowns grow, so will the scope and magnitude of issues that landlords and tenants need to navigate. The most effective method for dealing with the effects of the COVID-19 outbreak is for landlords and tenants to proactively communicate and avoid making decisions that could be regretted later.

Late yesterday, the IRS issued Notice 2020-23, extending a variety of deadlines, including 1031 deadlines. Although the Notice is confusing, because it is not written like the typical Disaster Relief Notices, this Notice extends any 45-day or 180-day deadline that occurs between April 1 and July 14, to July 15, 2020.

The CARES Act includes a number of provisions affecting properties with federally backed loans (e.g., Fannie Mae, Freddie Mac, FHA, HUD, Section 8, VA and USDA). Specifically, a moratorium is in place preventing evictions of residential tenants. The key provisions include the following:

• There is a 120-day period beginning on March 27, 2020 (the “Moratorium Period”), where the landlord of a “covered dwelling” cannot (A) make, or cause to be made, any filing to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent; (B) impose any late fees, penalties or other charges on a tenant for late payment of rent; and (C) mail or post any notices to pay rent or quit (not limited to nonpayment) during the 120 day period.

• During the Moratorium Period the landlord of a covered dwelling cannot: (A) require a tenant to vacate a dwelling unit located in an applicable property before the date that is 30 days after the date the tenant is provided a notice to vacate; and (B) may not issue a notice to vacate until after the expiration of the Moratorium Period.

• An “applicable property” includes one that has a Federally backed mortgage loan or a Federally backed multifamily mortgage loan.

• A “covered dwelling” is (A) a dwelling that is occupied by a tenant pursuant to a residential lease or without a lease or with a lease that is terminable under State law and (B) is in or on a covered property.

• A “dwelling” includes apartment buildings, mobile homes, trailer parks, condominiums and certain single-family homes.

• A “Federally backed mortgage loan” is any loan that is secured by a first or subordinate lien on real property (including individual units of condominiums or cooperatives) designed principally for the occupancy of from one to four families that is (A) insured by the Federal Housing Administration or the National Housing Act, (B) guaranteed under Housing and Community Development Act, the Department of Veterans Affairs, or the Department of Agriculture, or (C) purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.

• The “covered period” is the period commencing on March 27, 2020 and ending on the first to occur of (A) the termination date of the national emergency concerning the coronavirus disease outbreak declared by the President on March 13, 2020 and (B) December 31, 2020.

• This moratorium is not limited to tenants affected by COVID-19, but appears to apply to all tenants regardless of their situation.

• Nearly half of the nation’s mortgages are owned or backed by Fannie Mae or Freddie Mac. Fannie Mae and Freddie Mac have easy loan look-up websites to determine if they own a mortgage. To look up online whether a mortgage is owned or backed by Fannie or Freddie, click these links:

• Is my property’s loan backed by Fannie Mae ?

• Is my property’s loan backed by Freddie Mac ?

• The CARES Act authorizes criminal penalties, under existing law, for fraud or other misconduct, and creates an Office of the Special Inspector General for Pandemic Recovery within the US Department of the Treasury to coordinate the auditing and investigation of the management and spending of funds under any program established under the CARES Act.

• Finally, the CARES Act protections are in addition to any state or county limitations on evictions. Here is a link to the current emergency orders in place for Oklahoma.

President Trump signed the Coronavirus Aid Relief and Economic Security Act (CARES Act) into law on March 27th. That Act included relief in the form of $349 billion for loans to small businesses through the Payroll Protection Program (“PPP”) administered by the U.S. Small Business Administration (“SBA”). The SBA initially described the PPP as a program “for any small business with less than 500 employees (including sole proprietorships, independent contractors and self-employed persons), private non-profit organization or 501(c)(19) veterans organizations affected by coronavirus/COVID-19.”

Last night the Small Business Administration issued Interim Regulations relating to the Paycheck Protection Program (“PPP”). Although the CARES Act provides that any business is eligible for the PPP Loan Program, the Interim Regulations refers to 13 CFR 120.110 and the SBA “standard operating procedures” (SOP) 50-10 Subpart B Chapter 2. Both of those provisions make it clear that “passive businesses” are not eligible for CARES Act money. In that regard, 13 CFR 120.110 excludes:
“c) Passive businesses owned by developers and landlords that do not actively use or occupy the assets acquired or improved with the loan proceeds.” SOP 50-10 further states that “Businesses that are primarily engaged in owning or purchasing real estate and leasing it for any purpose are not eligible”, that “Apartment buildings and mobile home parks are not eligible”, and that “Residential facilities that do not provide healthcare and/or medical services are not eligible.”

As a result of the Interim Regulations, unless Congress changes the CARES Act to circumvent the Interim Regulations, Real Estate holding companies, Landlords, RE investors, HOAs, Co-Ops and Condominiums are not eligible for to receive PPP Loans.