Eviction Moratorium Extended Through March 2021

The federal rental eviction moratorium, which was extended late in December through January 31, now does not expire until March 31, 2021.

New Extension Through March 2021

Hours after his inauguration last week, President Biden signed an executive order requesting extension of the eviction moratorium through March 31, 2021. On the same day the Centers for Disease Control and Prevention (CDC) extended its order accordingly. It was to have expired on January 31, 2021. The federal Consolidated Appropriations Act of late December had pushed the previous December 31, 2020 deadline to January 31, 2021. (See Section 502 of Title V, Subtitle A, Division N, on page 2,281 of the 5,593 page Act).

Continuation of Original CDC Order

The CDC order that the CDC just extended was originally published last September. At the heart of this detailed order is this key sentence:

… 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…

However, this strong language is “subject to the limitations under [its] ‘Applicability’ section.”

First Applicability Limitation: Stricter Local/State Moratoriums

The CDC moratorium only applies to cities and states that don’t have a stronger eviction moratorium.

This 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 listed in this Order.

Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID–19, 85 Fed. Reg. 55292, 55294 (Sept. 4, 2020).

The Order also explicitly allows local governments and states to have stronger moratoriums.

… this Order does not preclude State, local, territorial, and tribal authorities from imposing additional [eviction moratorium] requirements that provide greater public-health protection and are more restrictive than the requirements in this Order.

85 Fed. Reg. 55292, 55294 (Sept. 4, 2020).

Talk with your bankruptcy lawyer about whether this federal moratorium or a stronger local one applies to you.

Second Applicability Limitation: Eviction Exceptions

The eviction moratorium doesn’t apply to the following behavior by a tenant:

(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 regulation 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).

85 Fed. Reg. 55292, 55294 (Sept. 4, 2020).

Clearly, landlords can try to stretch these exceptions into questionable excuses for eviction. First, do everything possible to prevent giving your landlord this kind of ammunition. Then talk with a landlord-tenant or bankruptcy lawyer if you suspect your landlord is misusing these exceptions.

You Must Be a “Covered Person”

Notice above that the CDC’s original (now extended) order only prevents eviction for “any covered person.” To be a “covered person” you have to meet 5 requirements. And, most importantly, you need to provide your landlord a “declaration under penalty of perjury” that you meet these requirements. (Here is the CDC’s declaration form—not yet updated.)

Here are the five requirements, with some comments on each.

1) “Best Efforts”

The first requirement: “The individual has used best efforts to obtain all available government assistance for rent or housing.” 85 Fed. Reg. 55292, 55293 (Sept. 4, 2020).

Late December’s Consolidated Appropriations Act provided for $25 billion in emergency rental assistance. (See Section 501 of Title V, Subtitle A, Division N, starting on page 2,255 of the 5,593 page Act). This is the first of the various pandemic-era federal laws that provided money for renters.

Plus, some states and local governments have their own programs providing assistance.

If you haven’t already done so, find out if anything is available to you, from any source. Then you’ll be able to sign the CDC’s declaration truthfully.

2) Income

The second requirement:  

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

85 Fed. Reg. 55,292, 55,293 (Sept. 4, 2020).

This is mostly self-explanatory. But note that this order from September will likely be updated to refer to more recent tax years.

3) Loss of Income

The third requirement:  

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

85 Fed. Reg. 55292, 55293 (Sept. 4, 2020).

This requirement should not be a problem for most people.

4) Partial Payments

The fourth requirement:  

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

85 Fed. Reg. 55292, 55293 (Sept. 4, 2020).

Sensibly, you are required to pay your landlord whatever you can. It’s unclear how a landlord or court would calculate or enforce such partial payments.

5) Effect of Eviction

The fifth requirement:  

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.

85 Fed. Reg. 55,292, 55,293 (Sept. 4, 2020).

Recall that the whole point of the CDC’s order is to help prevent even greater spread of Covid. This last requirement is tied to that.

Most people who have fallen behind on rent don’t have the money needed to start renting elsewhere. So again this requirement, although maybe challenging to enforce, should not be hard for most tenants to meet.


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