On Saturday, July 31, 2021, a waive of relief could be felt across the country by landlords as the CDC Order preventing many evictions expired. Landlords had been inhibited by the CDC’s ban on evictions since September 4, 2020, and with each extension the frustration levels were rising. On Saturday it seemed that we had finally reached the end of what seemed like never ending protections to Tenants and crippling restrictions to landlords.
The relief, however, was short lived when the CDC issued a new order banning evictions on Tuesday, August 3, 2021. The new order is eerily similar to that issued in September, citing the new Delta variant as a threat to the health and safety of those facing evictions. This new order will be in effect through October 3, 2021, placing additional strain on landlords, some of whom have been without rental income since March 2020.
This order, like the previous, is only a protection against eviction for claims involving failure to pay rent or similar housing-related payments. Evictions will continue to be permitted when the landlord can sufficiently show another reason such as the tenant engaging in criminal activity on the property, threats to the health or safety of other residents, damage to the property, violation of building code, health ordinance or similar regulation; or breaches of any other covenant of the lease.
The CDC order will only apply in counties experiencing substantial and high levels of community transmission of Covid-19 as defined by the CDC. If your county falls into this category as of August 3, 2021, you are subject to the CDC eviction moratorium. If your county does not currently fall into the substantial or high level transmission category, but later experiences one of these levels, the CDC order will automatically go into effect. If your county was in the substantial or high transmission category and later drops into a lower category, the county must remain in the lower category for fourteen (14) consecutive days, at which point the CDC order will no longer apply. You can find your county’s current transmission category at CDC COVID Data Tracker. As of August 4, 2021, all counties in Southwestern Pennsylvania, with the exception of Armstrong County and Fayette County, are in the substantial transmission category and subject to the CDC Order.
If a tenant lives in a county where the CDC order is in effect and wishes to claim protection from eviction under the order, the tenant must sign a CDC Declaration or present the landlord or court with a document swearing, under penalty of perjury, that they meet the following requirements:
- The individual has used best efforts to obtain all available governmental assistance for rent or housing;
- The individual either (i) earned no more than $99,000 (or $198,000 if filing jointly) in Calendar Year 2020 or expects to earn no more than $99,000 in annual income for Calendar year 2021 (or no more than $198,000 if fining a joint tax return), (ii) was not required to report any income in 2020 to the U.S. Internal Revenue Services, or (iii) received an Economic Impact Payment (stimulus check).
- 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 layoff, or extraordinary out-of-pocket medical expenses;
- The individual is using best efforts to make timely partial rent payments that are as close to the full rent payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses;
- Eviction would render the individual homeless – or force the individual to move into and reside in close quarters in a new congregate or shared living setting – because the individual has no other available housing options; and
- The individual resides in a U.S. county experiencing substantial or high rates of community transmission levels of Covid-19 as defined by CDC.
If the tenant signs a CDC Declaration any case or eviction against the tenant will be stayed until the expiration of the moratorium. Landlords can challenge the truthfulness of a tenant’s declaration if they believe the tenant does not qualify under the CDC Order.
The CDC Order is retroactive to cases and judgments filed before the order was effective. If a landlord received a judgment on a case for nonpayment of rent and the eviction has yet to be completed, this CDC Order will prevent those evictions from moving forward so long as the county is subject to the order and the tenant signs a CDC Declaration. Keep in mind however, the CDC Order does not provide a timeframe in which the tenant must sign a CDC Declaration, meaning that at any point up to the actual lockout the tenant can prevent eviction by signing a CDC Declaration. Cases involving issues other than failure to pay rent in which the tenant has not signed a CDC Declaration will be permitted to move forward through the eviction process.
If a landlord has an open case and a tenant signs a CDC Declaration, the case will be stayed until the CDC Order expires. There is little that a landlord can do if the case is in a magisterial district court as the magisterial district courts do not permit for motions to be presented and the federal courts have not provided any guidance. However, if the case is on appeal at the Court of Common Pleas, the landlord can move the court to strike the CDC Declaration because the tenant does not meet the requirements of a “covered person” or because the CDC Order does not apply to the case. This can be an uphill battle for the landlord, as it is unlikely the landlord has evidence other than their testimony, to show the tenant does not qualify for protection. Attorneys in our office have been successful on motions to strike some CDC Declarations on grounds either that the tenant did not qualify or that the CDC Order did not apply to the facts of the case.
Without a successful motion to strike a CDC Declaration, a hearing date will not be scheduled. Additionally, if the tenant has a supersedeas it cannot be terminated for the tenant failing to make the required rental payments into escrow. Landlords get one shot at striking a CDC Declaration and it is imperative that the strongest argument or arguments are put forth to the court. Get help to get it right!
One area of ambiguity from the previous CDC Order that we fear will continue to haunt us is whether cases involving end of lease are protected. Each judge has interpreted this issue in his or her own way, leaving a lot of confusion among both landlords and tenants. The housing court judge in Allegheny County has consistently taken this position in ruling on motions to strike involving end of a lease. It has been our position since September 2020 that the CDC Order does not apply to eviction based upon the end of a lease. This new order has even stronger language to support that position, specifically stating that “nothing in this order precludes evictions based on a tenant, lessee, or resident:…(5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment…” The question then likely becomes is the reason the landlord is not renewing the lease failure to pay rent, in which case the court would likely find that the CDC Order applies. If however the landlord can successfully show that there is a reason other than failure to pay rent for not renewing the lease, there is the opportunity for the landlord to be successful on a motion to strike.
If an individual landlord is found to be in violation of the CDC Order, the landlord can face criminal penalties including a fine up to $100,000 or one year in jail, or both. If the violation results in a death, the fine could reach $250,000, one year in jail or both. If the landlord is an organization the fines double to $200,000 for a violation not involving death and $500,000 if the violation results in a death.
This is a difficult and frustrating time for landlords and with the rules continuing to change on what they can and cannot do with their own property, it is more important an ever that landlords understand their rights. Our office is well equipped to handle all of your rental property needs and assist you in navigating the restrictions landlords are facing. Call us today for a free consultation.
The full CDC Order can be found at: Signed-CDC-Eviction-Order.pdf