Federal Moratorium on Evictions

Federal Moratorium on Evictions under the CARES Act

Section 4024 of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) will apply to some of GJHA’s properties. Any landlord that meets the definition of a “lessor of a covered dwelling unit” may not initiate eviction proceedings, including issuing a notice to vacate, against a tenant for non-payment of rent, non-payment of other charges or fees for 120-days (Friday, July 24, 2020) and cannot charge any fees, penalties, or other charges to the tenant related to nonpayment of rent. Below is a summary of applicable information. Please note that the below information may require updating, including additional clarification, as the COVID-19 pandemic continues to develop.

Moratorium on Eviction Filings for Nonpayment of Rent and other Charges

Section 4024 of the CARES Act provides for a temporary 120-day moratorium (beginning on March 27, 2020) on eviction filings to recover possession of a covered dwelling for nonpayment of rent or other fees or charges, as well as a moratorium on charge fees, penalties, or other charges related to nonpayment of rent. A “covered dwelling” includes a dwelling that occupied by a tenant (pursuant to a residential lease or without a lease) and is on a “covered property.” The CARES Act defines a “covered property” to include:

■ any property that participates in a covered housing program as defined in the Violence Against Women Act (VAWA);

■ the rural housing voucher program of section 542 of the Housing Act of 1949; or

■ or any property that has a federally-backed mortgage loan or federally-backed multifamily mortgage loan.

Covered programs as defined in VAWA include, but are not limited to Section 202, Section 811, HOPWA, HOME, Section 221(d) mortgage insurance programs, Section 8 rental assistance, Section 236, and a number of rural housing assistance programs authorized by the Housing Act of 1949. A “federally backed multi-family mortgage loan” is any loan (other than temporary financing such as a construction loan) that is secured by a first or subordinate lien on residential multifamily real property designed principally for the occupancy of five or more families that is made, insured, guaranteed or assisted in any way by any officer or agency of the Federal Government.

It is worth noting that the Act does not require that a tenant’s non-payment of rent be caused by COVID-19 and instead places a blanket moratorium on non-payment evictions. The Act does not, however, abrogate a tenant’s obligation to pay rent, nor does the Act specify the precise effect of what happens at the end of the 120-day moratorium for those who do not pay rent during that time. In other words, according to the statute, if a tenant has not paid rent throughout the moratorium, there is no prohibition on a lessor charging the tenant at the end of the moratorium for the full amount owed and serving the requisite 30-day notice for that amount.

Extended Notice Requirements

The Act also provides that a lessor must give a 30-day notice to vacate before a tenant is required to vacate a property and such a 30-day notice may not be issued until after the expiration of the 120-day moratorium.

(c) NOTICE – The lessor of a covered dwelling unit –

(1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and

(2) may not issue a notice to vacate under paragraph (1) until after the expiration of the period described in subsection (b) [the 120-day moratorium period]

The language of subsection (c) presents an interesting dilemma in interpreting the effect of the statute as it could seemingly be read to imply that any notice to vacate for any reason must be a 30-day notice that cannot be given until after the 120-day moratorium. Without additional guidance, a conservative reading seems to create an unreasonable result that no evictions for any cause could take place until after the lifting of the moratorium. Because the Act itself is designed to specifically alleviate financial hardship during the pandemic, and because the other subsections of section 4024 specify non-payment of rent as the prohibited eviction cause, we believe that the correct interpretation of subsection (c) is that is its providing additional guidelines for serving notices for non-payment and would not be implicated if a tenant is being evicted for another cause such as substantial violation, repeated violations, etc.

Relation to Colorado’s Executive Order D 2020 12

The main distinction between the provisions of the CARES Act and Colorado Executive Order D 2020 012 discussed in our prior communication, is that unlike the Executive Order, the CARES Act places an outright moratorium on eviction proceedings for non-payment. The Executive Order, while discouraging evictions generally, largely leaves control in the hands of County governments as to whether evictions may be filed in County Courts and does not directly place any moratorium on evictions.

As previously noted, however, most if not all County Courts are not scheduling eviction hearings unless there is an imminent threat to public health and safety and most Sheriff’s Offices are not carrying out evictions for the foreseeable future. While there may be circumstances such as in the case of substantial violations of a lease where a court may find that there is a health and safety risk such that an earlier hearing will be held, there is very little guidance on how this determination is made and appears to largely leave it in the discretion of judges.

Accordingly, if you wish to evict tenants for causes other than nonpayment of rent, we have not come across any restrictions regarding your ability to serve notices and file these actions, but it is likely that no hearings will occur on those actions until at least May. Even if an earlier hearing is granted, and a writ of restitution is then issued from that hearing, it is equally unclear if the Sheriff would be willing to carry out execution of the Writ although, presumably, if a judge were to determine public health and safety were at risk, that judge would provide requisite instruction to the Sheriff in that case.

By Annie Murphy and Ross Smith