CDC Eviction Moratorium: More Layers to an Already Large Cake

CDC Eviction Moratorium: More Layers to an Already Large Cake

The CDC eviction moratorium and what landlords should know about the complex situation landlord tenant law is in currently

Bradley S. Kraus
Attorney at Law, Warren Allen, LLP

The year continues to roll on, and every month, new issues seem to appear that add further complexity to the already complex body of landlord/tenant law.

In early September, the Centers for Disease Control and Prevention (CDC) decided to dip its toe in the waters and enact its order entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.” This order forbids landlords from taking action against residential tenants for nonpayment of any charges. Setting aside arguments as to whether or not the CDC has the authority to enact and/or enforce such an order—and there is currently litigation attacking just that—landlords must be aware of this additional layer of protections, and how they should analyze the same in conjunction with other moratoriums in place.

Oregon’s state-wide eviction moratorium was extended to December 31, 2020. Local jurisdictions such as Multnomah County also have already enacted/extended the HB 4213-type protections tenants receive. Other jurisdictions may have done so prior to this article being published. Accordingly, prior to taking any actions for nonpayment of rent, you should consult an attorney to wade through these ever-changing and multi-layered protections, of which the CDC order is but one.

Assuming no state or local moratoriums exist that affect you in October, the CDC eviction moratorium order potentially could. As an initial matter, it is important to note that the CDC eviction moratorium order only applies to nonpayment scenarios. Tenants can still be evicted for conduct-based defaults of the rental agreement and Oregon law. As to nonpayment scenarios, in order to qualify as a “covered person” under the order, the tenant must submit to the landlord a declaration made under penalty of perjury that states that:

  • The individual has used best efforts to obtain all available government assistance for rent or housing;
  • The individual either (a) 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), (b) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (c) 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.

Once the landlord receives this declaration, the tenant is entitled to the protections detailed in the order and a landlord may not take any action to remove the tenant. Keep in mind that this declaration can be submitted to the landlord at any time, including during any eviction a landlord may have begun. Further, it is unclear whether or not such a declaration could be attacked in any eviction proceeding, but it would seem disingenuous to suggest that it couldn’t. The language of the CDC order provides no such guidance or method, so any such attempt to challenge a tenant’s declaration should be discussed with the attorney of your choice.

The laws continue to change, creating a patchwork of rules and regulations that landlords must follow. At a certain point, policymakers will—hopefully—see that landlords cannot continue to shoulder the financial impact of the pandemic. Hopefully, this realization will lead to policies that benefit both landlords and their tenants. Until then, we will turn the page on the calendar and await the surprises next month will bring.

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CDC Eviction Moratorium: More Layers to an Already Large Cake
Bradley Kraus, Portland attorney  or 503-255-8795

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