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09.15.2020 | Legal Advisory

On September 1, 2020, as part of its public health response to the COVID-19 pandemic, the Centers for Disease Control (“CDC”) and the Department of Health and Human Services (“HHS”) issued a final agency order temporarily prohibiting certain residential evictions across the United States (the “CDC Order”). Under the CDC Order, a landlord of residential property may not evict a “covered person” between September 4, 2020 and December 31, 2020 based on the nonpayment of rent or other housing payment.

Below is a list of questions and answers that residential landlords need to know in light of the CDC Order.

Who Is a “Covered Person”?

The CDC Order defines a “covered person” as any residential tenant who has provided its landlord with a declaration under penalty of perjury indicating the following:

• 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 tax 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 lay-off, 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.

The CDC Order includes a form of declaration that residential tenants may use, which can be found here. However, the CDC Order does not require the form declaration to be used so long as a residential tenant makes a similar declaration under penalty of perjury.

Some of the qualifications for a “covered person” include certain defined terms that residential landlords should understand:

• “Available government assistance” means “any governmental rental or housing payment benefits available to the individual or any household member.”
• “Extraordinary out-of-pocket medical expenses” means “any unreimbursed medical expense likely to exceed 7.5% of one’s adjusted gross income for the year.”
• “Available housing” means “any available, unoccupied residential property, or other space for occupancy in any seasonal or temporary housing, that would not violate Federal, State, or local occupancy standards and that would not result in an overall increase of housing cost to such individual.”

How Does the CDC Order Affect Other State and Local Eviction Moratoria, including the Massachusetts Eviction Moratorium?

The CDC Order does not apply in any state, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public health protection than the requirements set forth in the CDC Order. These jurisdictions may continue to impose additional requirements that provide greater public health protection and are more restrictive than the CDC Order.

In Massachusetts, the state’s current eviction moratorium will continue to prevent residential landlords from commencing non-essential evictions against all residential tenants. However, if the governor does not extend the state moratorium past October 17, 2020—the current expiration date—then the CDC Order will act to extend the eviction moratorium until December 31, 2020 with respect to “covered persons” only.

For Nutter’s previous guidance on the Massachusetts eviction moratorium, see our advisories Update on Massachusetts Eviction Moratorium Due to COVID-19 and Massachusetts Enacts Temporary Moratorium on Evictions and Foreclosures Amid COVID-19 Pandemic.

Does the CDC Order Affect Evictions Based on Foreclosures?

No. The CDC Order does not preclude residential home mortgagees from pursuing foreclosure actions against residential tenants.

Does the CDC Order Affect a Covered Person’s Rent Obligations, Late Fees, or Interest?

No. The CDC Order does not relieve any individual from its obligation to pay rent or make other housing payments to its landlord. Moreover, residential landlords may continue to charge and collect fees, penalties, or interest as a result of a tenant’s failure to pay rent or other housing payment on a timely basis as may be permitted under the applicable lease.

What Types of Evictions Can Residential Landlords Pursue Under the CDC Order?

The CDC Order does not preclude evictions against covered persons based on reasons other than the nonpayment of rent or another housing payment. Those reasons may include engaging in criminal activity at the premises, violating applicable health and safety regulations, threatening the health or safety of other residents, actual or an immediate and significant risk of property damage, or violating any other contractual obligation other than timely payment of rent or other housing payment. Residential landlords may also continue to pursue evictions against residential tenants who do not otherwise qualify as “covered persons,” including those individuals who may fit the criteria of a covered person under the CDC Order but fail to provide its landlord with the requisite declaration under penalty of perjury.

Even if the CDC Order does not preclude such evictions, residential landlords should continue to monitor state and local eviction moratoria that may provide greater protection than what is afforded under the CDC Order.

What Are the Penalties for Violating the CDC Order?

A residential landlord could be subject to significant criminal penalties for violation the CDC Order. Any person violating the order may be subject to: (1) if the violation does not result in a death, then a fine of no more than $100,000 or one year in jail, or both, or (2) if the violation results in a death, then a fine of no more than $250,000 or one year in jail, or both, or as otherwise provided by law. Organizations are subject to higher fines of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death. 

Note that the CDC Order does not differentiate between what constitutes a “person” versus an “organization” for purposes of these criminal penalties.

What’s Next?

We are continuing to monitor these developments and can assist landlords in navigating these regulations.

This advisory was prepared by Matt Gaughan and David Libardoni in Nutter’s Real Estate Department. For more information, please contact Matt, David, or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.