Detailed legal analysis of the CDC Order banning residential evictions nationwide.

[Progressive Law]

https://www.nhlp.org/wp-content/uploads/CDC-Eviction-Analysis.pdf


Overview

On Sept. 1, 2020, the Centers for Disease Control and Prevention issued an order entitled “Temporary
Halt in Residential Evictions to Prevent the Further Spread of COVID-19.” See 85 Fed.Reg. 55292 (Sept.
4, 2020). The order, which took effect upon publication in the Federal Register on Sept. 4, declares a
national moratorium on certain residential evictions for nonpayment (of rent, as well as other fees or
charges) under the authority of 42 C.F.R. § 70.2 (authorizing the CDC Director, upon a finding that state
health authorities have not taken sufficient measures to prevent the spread of a communicable disease,
to “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary”).
See 85 Feg.Reg. at 55293; see also 42 U.S.C. § 264.

The moratorium lasts through December 31, 2020. See 85 Feg.Reg. at 55296. It applies only when
tenants present their landlords with a signed declaration, the required text of which appears as an
attachment to the order. See 85 Feg.Reg. at 55293. To sign the declaration, a tenant must be able to
meet five essential criteria:

• Expect to have income less than $99,000 in 2020, or have received a stimulus check, or not have
been required to report income to the IRS in 2019;
• be unable to pay full rent due to an income loss or “extraordinary” medical bills
• have used best efforts to obtain governmental rent assistance,
• be likely to become homeless or forced to “live in close quarters” in another residence if
evicted, and
• promise to “make timely partial payments that are as close to the full payment as the
individual’s circumstances may permit.”
See 85 Feg.Reg. at 55293.

Closer Look

Where does the order apply?

The CC order applies in every U.S. state and territory with reported cases of Covid-19, except for states,
local territorial, or tribal areas that already have “a moratorium on residential evictions that provides
the same or greater level of public health protection than the requirements listed in this Order.” 85
Feg.Reg. at 55294.

Thus American Samoa, having no reported cases of Covid-19, is clearly not covered “until such time as
cases are reported.” 85 Feg.Reg. at 55294. Other U.S. jurisdictions having no eviction moratoria of their
own are clearly covered.

For jurisdictions that do have their own eviction moratoria, it is unclear how CDC applicability would be
determined. One possibly interpretation is that some person or entity (perhaps the CDC, a court, or
other official) would make a threshold determination of whether the local moratorium provides equal or
better public health protection—in which case the local moratorium would apply and the CDC order
would not. This interpretation is difficult to reconcile with the order’s statement that local protections
in excess of the CDC order can coexist (“this Order does not preclude local authorities from imposing
additional requirements that provide greater public-health protection and are more restrictive than the
requirements in this Order”). 85 Feg.Reg. at 55294. In addition, this interpretation would presumably
require the entity responsible for making these assessments to study each local moratorium (which are
constantly expiring, being renewed, and being modified), compare the public health effects of each one
to the CDC order, and issue an appropriate determination. Considering the need for prompt and
immediate action as emphasized in the order, the CDC likely did not intend such a cumbersome and
time-consuming process. See 85 Feg.Reg. at 55296 (“Considering the public-health emergency caused
by COVID–19, it would be impracticable and contrary to the public health, and by extension the public
interest, to delay the issuance and effective date of this Order.”).
Therefore, CDC order will likely be interpreted as establishing a “floor,” with local eviction moratoria
able to afford equal or greater protection against eviction but irrelevant if they afford less protection.1

This means the CDC order would be compared to local moratoria on a case-by-case basis, with the more
protective provision applying (and the local provision taking precedence over the CDC order where the
protections are equivalent.

What housing is covered?

The CDC order prohibits any “a landlord, owner of a residential property, or other person with a legal
right to pursue eviction or possessory action” from evicting a covered person from “from any residential
property” in a jurisdiction where the order applies. See 85 Feg.Reg. at 55296. The terms “landlord” and
“owner” are not further defined. “Residential property” is defined to include “any property leased for
residential purposes,” and goes on to specify the term includes “any house, building, mobile home or
land in a mobile home park, or similar dwelling leased for residential purposes.” See 85 Feg.Reg. at
55293. However, the definition does “not include any hotel, motel, or other guest house rented to a
temporary guest or seasonal tenant” as defined under state law. See 85 Feg.Reg. at 55293.
Therefore, the order clearly applies to all standard rental housing, whether publicly or privately
operated. Persons leasing rooms in residential motels and other marginal housing situations may not be
covered, however—though coverage of such properties will depend heavily on state law (particularly
how a “temporary guest or seasonal tenant” might be distinguished from an ordinary tenant).

What types of evictions are prohibited?

There are two key limitations on the types of evictions prevented by the order. First, the order prohibits
only the eviction of “covered persons.” See 85 Feg.Reg. at 55296. To be a covered person, a tenant
must sign a form declaration and provide a copy to the lessor, and only those meeting certain needbased criteria and agreeing to make partial payments and seek government rental assistance may
properly sign the declaration (see below for more detail). See 85 Feg.Reg. at 55293.
Second, the order lists five categories of evictions that it does not preclude:
“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 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).”
See 85 Feg.Reg. at 55294.

Accordingly, advocates should argue that the order prohibits any eviction (of a covered person) not
falling into the five exempted categories. This interpretation would at least block all evictions (of
covered persons) for nonpayment of rent, lease expiration/no cause, and any other evictions unrelated
to a tenant’s lease violation.

The text does not explicitly provide that the included list of permissible grounds for eviction is exclusive,
however, and a landlord theoretically could seek to terminate a tenancy for a non-enumerated reason
unrelated to nonpayment of rent. An example could be a landlord’s desire to renovate or change the
use of the premises, or perhaps a personal grudge or personality conflict with the tenant. In such a case,
it is noteworthy that each of the five enumerated exceptions requires some form of misconduct or lease
infraction (other than non-payment of rent) by the tenant. See 85 Feg.Reg. at 55294. This suggests
that, if allowed at all, any non-enumerated ground for eviction would similarly need to involve tenant
misconduct or a lease violation (other than nonpayment of rent or charges). See Beecham v. United
States, 511 U.S. 368, 371 (1994) (“That several items in a list share an attribute counsels in favor of
interpreting the other items as possessing that attribute as well.”); see also U.S. v. Williams, 553 U.S.
285, 294 (2008) (“common sense canon of noscitur a sociis … counsels that a word is given more precise
content by the neighboring words with which it is associated”).

Some leases expressly obligate a tenant to vacate upon expiration of the lease term. Such a provision
could enable a housing providers to contend that a tenant’s failure to vacate upon lease expiration
amounts to a lease violation authorizing eviction for violation of an “other contractual obligation.” See
85 Feg.Reg. at 55294. Yet requiring a tenant to vacate the premises in order to avoid eviction for having
failed to vacate would be an absurd result, hence courts will likely reject that interpretation. See, e.g.
Haggar Co. v. Helvering, 308 U.S. 389, 394 (1940) (“All statutes must be construed in the light of their
purpose. A literal reading of them which would lead to absurd results is to be avoided when they can be
given a reasonable application consistent with their words and with the legislative purpose.”). Such a
construction would also run contrary to the public health purpose of the order. See 85 Feg.Reg. at
55294 (“Evicted renters must move, which leads to multiple outcomes that increase the risk of COVID–
19 spread.”). Instead, courts will likely read the provision authorizing eviction for violations of “other
contractual obligations” to mean contractual obligations existing during the term of the lease—not
vacating upon lease expiration. See 85 Feg.Reg. at 55294; see also Haggar Co. at 394.

Who is a “covered person?”

To be a “covered person” entitled to the protection of the order, one must be a “tenant, lessee, or
resident of a residential property” and provide a required declaration, sworn under penalty of perjury,
to the landlord. See 85 Feg.Reg. at 55293. The order includes, as an attachment, a form declaration for
tenants to use—though the order also makes clear that tenants may use a different form so long as the
required contents are present and the declaration is sworn under penalty of perjury. See 85 Feg.Reg. at
55292 (“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…”), 55297 (form declaration).
Both the preamble to the form and the supplementary information accompanying the order state that
“[e]ach adult listed on the lease, rental agreement, or housing contract should complete this
declaration,” though again, it is unclear what the effect of having fewer than all listed adults sign the
declaration would be. See 85 Feg.Reg. at 55292, 55297.

The contents of the declaration, which essentially function as eligibility criteria for the protection of the
CDC order, are as follows (from the form declaration at 85 Fed.Reg. 55297):

• I have used best efforts to obtain all available government assistance for rent or housing
“Available governmental assistance” is a term of art in the order, which means “any governmental
rental or housing payment benefits available to the individual or any household member.” See 85
Feg.Reg. at 55293. The wording of the form declaration is unfortunate here, being in the past tense—
this suggests a tenant who may have failed to apply for rental assistance grants previously available
might be reluctant to sign the affidavit. However, any tenant with any passable reason for not having
applied (e.g., unaware of the funds, did not qualify, funds ran out before tenant could apply, tenant was
not delinquent at the time the funds were available, etc.) should still be able to claim “best efforts.”
Moreover, a tenant can scarcely be expected to have foreseen prior to the CDC order that a failure to
apply for assistance funds would deny that tenant protection under a future CDC order. Therefore, even
if the tenant may have failed to make best efforts to apply for assistance funds in the past, a tenant
could still credibly make the declaration by undertaking in the present a best effort to investigate and
apply for any funds presently available before signing. Note the definition only applies to governmental
benefits so does not require the tenant to have investigated all private sources of assistance.

• I either expect 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), was not required to report any income in 2019
to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus
check) pursuant to Section 2201 of the CARES Act.

The key here seems to be that these are three alternative ways of qualifying for protection. That is, a
tenant may have income less than $99,000 (or $198,000 together with spouse if married and filing
jointly) or have not been required to report income in 2019 or have received a stimulus check.
As has been well-reported in the media, many individuals eligible for stimulus checks did not receive
them in a timely manner—and some have not received them at all.2

Advocates should assert that a
tenant qualifies for protection under the stimulus check prong if the tenant was eligible to receive a
stimulus check, whether or not the funds were ever actually received.

• I am unable to pay my full rent or make a full housing payment due to substantial loss of
household income, loss of compensable hours of work or wages, lay-offs, or extraordinary outof-pocket medical expenses.
Note that there is no requirement here of demonstrating a link between income loss and Covid-19. The
order defines “extraordinary” medical expenses as “unreimbursed medical expense likely to exceed
7.5% of one’s adjusted gross income for the year.” 85 Fed.Reg. at 55297 (fn 38). The order imposes no
obligation to supply documentation of any income loss or medical expenses.

• I am 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.

The hilarious ambiguity of this partial payment requirement is destined to become an engine of
controversy in many situations. Presumably a tenant who calculates, in good faith, a reasonable partial
payment she can afford and tenders those funds complies with the obligation—even if the landlord
thinks the tenant could have afforded more. No provision in the order purports to allow a landlord to
proceed with eviction of a tenant who fails to make partial payments—let alone partial payments the
landlord considers insufficient. The order and form declaration both ensure tenants understand the
“declaration is sworn testimony, meaning that [a tenant] can be prosecuted, go to jail, or pay a fine if
[they] lie, mislead, or omit important information.” 85 Fed.Reg. at 55297. This suggests the intended
consequence for a false declaration is prosecution for perjury—not eviction.

Nevertheless, landlords challenging the veracity of a tenant’s declaration may gain traction in eviction
courts if able to present evidence that a declaration was made in bad faith of with fraudulent intent.
Thus, tenants should avoid making unreasonably low partial payments (based on their ability to pay) and
should use discretion in sharing information about their available resources with landlords or publicly
that might be used to question the amount of their payments or the integrity of other declaration
contents.

• If evicted I would likely become homeless, need to move into a homeless shelter, or need to
move into a new residence shared by other people who live in close quarters because I have
no other available housing options.

The order defines “[a]vailable housing” as essentially meaning decent and affordable housing that is
presently available to the tenant. See 85 Fed.Reg. at 55293 (“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 you.”). Hence, a tenant need not be willing to accept any housing irrespective of price or
condition as an alternative to becoming homeless.

• I understand that I must still pay rent or make a housing payment, and comply with other
obligations that I may have under my tenancy, lease agreement, or similar contract. I further
understand that fees, penalties, or interest for not paying rent or making a housing payment
on time as required by my tenancy, lease agreement, or similar contract may still be charged
or collected.

Unlike the CARES Act moratorium did,3 the CDC order provides no relief from late fees and related
charges—except that the tenant may not be evicted for nonpayment of those amounts. See 85 Fed.Reg.
at 55294. This could be one area where state and local protections commonly exceed the CDC
minimum.4

• I further understand that at the end of this temporary halt on evictions on December 31, 2020,
my housing provider may require payment in full for all payments not made prior to and
during the temporary halt and failure to pay may make me subject to eviction pursuant to
State and local laws.

Advocates may wish to evaluate how this statement interacts with any rights or protections under state
and local laws—particularly provisions of state landlord-tenant acts that may provide non-waivable
rights likely unaffected by the CDC order.

• I understand that any false or misleading statements or omissions may result in criminal and
civil actions for fines, penalties, damages, or imprisonment;
The form affidavit is big on intimidating language.

• Declarant must certify the truth and correctness of the contents “under penalty of perjury,
pursuant to 28 U.S.C. 1746.”

The form affidavit is big on intimidating language, as may have been previously mentioned.

Which stages of the eviction process does the order block?

The order prohibits a landlord from “evict[ing]” a covered person from residential rental property. See
85 Fed.Reg. at 55296. “’Evict’ and ‘Eviction’ means 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.” 85 Fed.Reg. at 55293. Hence the CDC
order appears to reach all phases of the eviction process (issuance of notices to vacate, filing unlawful
detainer actions, holding hearings, entering judgments for possession and writs of restitution, physical
execution of writ). CDC officials appeared to confirm this to New York Times columnist Rob Lieberman
shortly after the order was released.5

Consistent with this interpretation, under the order a covered person likely cannot be holding over on
premises until after Dec. 31, 2020. Therefore, any non-exempt eviction case filed or pending before Jan.
1, 2021, would presumably (depending on state law) be premature and subject to dismissal, and any
eviction notice directing the tenant to vacate sooner than Dec. 31, 2020, would be ineffective.
Since the prohibition applies to landlords and not to government officials, the CDC order might not stop
a physical eviction from being carried out where the writ has already been issued to the sheriff in a
jurisdiction where no further action is required by the landlord to facilitate execution. Arguably, an
“actions” such as providing keys or contracting with laborers might violate the order—though whether
such a violation would establish grounds for stopping the eviction (and through what procedural vehicle)
is difficult to assess. Reportedly, at least some courts have reportedly already signaled an intention to
construe the CDC order as stopping the execution of eviction writs.

The order’s definition of “eviction” likely also reaches at least some, if not all, conduct such as threats,
intimidation, misinformation, or self-help measures taken to remove a tenant. While state landlordtenant laws generally already provide superior civil remedies for lockouts and other extrajudicial
eviction practices, the significant criminal penalties available under the CDC order may pose a more
powerful deterrent against such practices—or enable a truly far-reaching remedy for egregious
violators. Note that the order may be enforced by certain state and local authorities as well as federal.
See 85 Fed.Reg. at 55296 (“This 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.”).