October 14, 2020
By Abby Volin
Published late Friday night on October 9, the Centers for Disease Control and Prevention (CDC), the Department of Justice (DOJ), the Department of Health and Human Services (HHS), and the Department of Housing and Urban Development (HUD) issued new clarification on the federal eviction moratorium. It contains several updates with important implications.
1. This revised guidance is coming from 4 federal agencies, meaning that we can expect this to be the official, coordinated government response.
2. The eviction moratorium will not prevent landlords from starting eviction proceedings.
This is different from the original moratorium, which stopped any landlord action that would cause an eviction. Although the physical eviction itself wouldn’t take place until the moratorium expires in January, landlords are now free to initiate an eviction action and start the court process.
It is harmful to tenants for several reasons. First, this can be used as a tool to intimidate tenants. Filing a claim in housing court marks the tenant with the dreaded “E” for eviction on their record, the long-term impact of which is devastating. It becomes significantly more difficult for an individual to find future rental housing or secure any kind of loan or credit. To avoid this outcome, many tenants will vacate the premises on their own to avoid having an eviction proceeding on their record even if they don’t have a safe place to go.
Second, most court proceedings are happening virtually. The eviction moratorium is simply unavailable to tenants who don’t have the ability to appear in court over Zoom or obtain a declaration form. Many will face a default judgment and automatic eviction.
3. Landlords now can challenge the truthfulness of the declaration statements that establish eligibility for the eviction moratorium.
However, the government agencies fail to create procedures for challenging the declarations or provide guidance for tenants on proving the truth of their assertions. On the one hand, this new regulation can reduce the incidence of tenants who may abuse these protections, but on the other, it provides another opportunity for landlords to intimidate tenants into vacating their premises even if it is unsafe for them to do so. Further, this regulation poses an additional burden on tenants to gather the necessary paperwork, which may be particularly arduous to obtain during this time of social distancing and remote-working.
4. The new guidance clarifies that landlords do not need inform tenants of their rights under the eviction moratorium.
Prior to this update, it was implied that landlords had a responsibility to do so. Moreover, while the DOJ is enforcing the eviction moratorium, tenants do not have any guidance for instructions on making a complaint.
5. State and local eviction moratoria orders still apply.
As before, any state and local laws that provide tenants with stronger protections than the federal moratorium apply. Landlords may not be able to initiate an eviction action against tenants pursuant to state law, however tenants still need to know their rights before they can assert them.
6. The updated guidance fails to provide rental assistance.
As we’ve previously stated, any eviction moratorium without corresponding rental assistance harms both landlords and tenants. This is an untenable situation that will lead to a disastrous outcome when the moratorium orders expire. Tenants will be saddled with crushing debt that they will be unable pay and landlords will be unable to recover months of rent payment that they depend on to pay their own bills.
Rental assistance is the only way to protect both tenants and landlords. While there are no federal resources at this time, many states have stepped up to fill the gap:
- HUD resources for renters
- Tenant Guidance: Rent Repayment Plans
- National Low Income Housing Coalition: State and Local Rental Assistance
We will continue to keep you updated.
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