CDC ISSUES A NEW EVICTION MORATORIUM HOLDOVER TENANTS WHO FAIL TO VACATE AFTER THEIR LEASE EXPIRES MAY STILL BE EVICTED, DESPITE THE NEW CDC ORDER
As we face yet another round of the CDC Eviction Moratorium, a recent decision out of Washington may have secured Landlords a win in the fight against evictions. By now, many lease agreements have expired and while Tenants are required to vacate the premises at the end of their term, many have not. Instead, those Tenants raise the pandemic as a defense to eviction and Landlords are stuck with holdovers who don’t pay rent and won’t leave. However, Judges’ are starting to agree that not all Tenants are subject to protection under the CDC Order, especially those who fail to comply with all other provisions of their lease agreement and refuse to vacate when it expires.
New CDC Eviction Moratorium – The Rise of the Delta Variant
The original CDC Eviction Moratorium, after multiple extensions, expired on July 31, 2021. Prior to this extension, the Director of the CDC assured the public that the July 2021 Order (i.e. the order extending the moratorium until July 31, 2021) would be the last extension and thereafter Landlords would finally be able to evict Tenants, as they could no longer raise the pandemic as a defense. However, due to the rise of the Delta variant and corresponding influx of positive cases throughout the United States, the CDC has issued a new “targeted” order to temporarily halt evictions in the hardest hit areas.
Specifically, the new CDC Order temporarily halts evictions for “Covered Persons” in counties throughout the United States that are experiencing substantial or high levels of Covid-19/positive test results. However, whether a Tenant is covered under the new CDC Order could fluctuate by the day. If a county which has low levels of transmission/positive test results later experiences high levels of transmission/positive test results, that county would become subject to the Order on the date that county beings to experience high levels of transmission/positive test results. Similarly, if a county that was formerly covered by this Order no longer experiences high levels of transmission/positive test results for a period of fourteen (14) consecutive days, then that county will no longer be subject to the Order, unless cases rise again thereafter. Community transmission levels can be tracked at https://covid.cdc.gov/covid-data-tracker/#county-view. This Order is set to expire on October 3, 2021, but is subject to further extension and/or modification.
Here, the key difference between the new CDC Order and the old one is that the new Order adds an additional element to the CDC Tenant Declaration. Particularly, in addition to being financially impacted by Covid-19, the Tenant must reside “…in a U.S. county experiencing substantial or high rates of community transmissions levels of SARS-CoV-2 as defined by the CDC.”
For those keeping track at home, under the new CDC Order, a Tenant may raise the CDC Eviction Moratorium as a defense and temporarily prevent evictions for nonpayment of rent if they submit a CDC Tenant Declaration to their Landlord swearing under the pains and penalties of perjury that the Tenant:
· Has used his/her “best efforts” to obtain all governmental assistance for payment of rent;
· Expects to earn no more than $99,000 in 2021 (or $198,000 if filing a joint return);
· Is unable to pay full rent because of adverse financial impacts due to the pandemic;
· Is using his/her best efforts to make timely payments or as close as possible to the full amount;
· Would be rendered homeless if evicted; and
· Resides in a community currently experiencing substantial or high levels of Covid-19/positive test results.
Tenants Are Contractually Obligated to Vacate After Their Lease Expires
Like the old one, the new CDC Order is clearly designed to prevent evictions for non-payment of rent. But, there are certain evictions which are supposed to be exempt from the Order because…
Nothing in this Order precludes evictions based on a tenant, lessee, or resident: (1) Engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulations relating to health and safety; or (5) 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).
While Tenants cannot be evicted for nonpayment of rent, according to exemption No. 5, Landlords can still evict Tenants for violating other provisions of his/her Lease Agreement, such as for-cause evictions. In fact, a plain reading of the CDC Order would allow a Landlord to evict a Tenant who failed to vacate after the lease expired.
The problem is that Courts have not been enforcing exemption No. 5, presumably because holdovers facing eviction during the pandemic have also not been paying rent. Consequently, Courts throughout the United States (especially Massachusetts) have been reluctant to issue Executions for Possession of the Premises (i.e. an Order to remove the Tenant from the Premises) so long as the Tenant has raised the CDC Eviction Moratorium as a defense. Nevertheless, it appears that the tides may be changing. A Washington Court recently held that the CDC Eviction Moratorium does not protect holdover tenants. In Nyman v. Hanley, 2021 WL 3085560 (Wash. July 22, 2021), a Tenant failed to vacate a cottage he was renting after his lease expired. As such, he was considered a tenant-at-sufferance, which is better known as a holdover. When the Landlord commenced eviction proceedings, the Tenant raised the CDC Eviction Moratorium as a defense claiming that he could not be evicted because he was considered a “Covered Person” under the Order. The Court disagreed because nothing in the CDC Order precludes eviction for… “violating any other contractual obligation, other than the timely payment of rent…” Here, the Court held that the Tenant’s failure to vacate after his lease expired is a violation of a contractual obligation, excluding him from protection under the CDC Order.
While Massachusetts Courts have yet to decide this issue, this is a strong case for Landlords because it is clear that failing to vacate after the lease agreement expires is a violation of a contractual obligation and eviction thereafter is enforceable under the CDC Order.
Please contact Marcus, Errico, Emmer & Brooks P.C. if you have any questions regarding how the new CDC Eviction Moratorium may impact your rental property and the steps to take in order to preserve your rights.
Written by
Dillon Brown