By Order of the U.S. Centers for Disease Control and Prevention (“CDC”) dated August 3, 2021 (“Effective Date”), the CDC has extended the federal (nonpayment of rent) eviction moratorium through October 3, 2021, subject to revision based on the changing public health landscape (the “Order”).
The Order applies in U.S. counties experiencing substantial1 and high2 levels of community transmission of COVID-19 as defined by the CDC as of the Effective Date, which includes all five boroughs of New York City, as well as Nassau and Suffolk as of August 4, 2021.3 U.S. counties that begin experiencing substantial and high levels of community transmission of COVID-19 after August 3, 2021 will become subject to the Order as of that date. U.S. counties that no longer experience substantial and high levels of community transmission of COVID-19 for 14 consecutive days shall no longer be subject to the Order unless and until that county begins experiencing substantial and high levels again.
Notably, “the 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 the CDC Order.” Currently, until at least August 31, 2021, New York State (“NYS”) arguably provides the same or greater level of public-health protection than the requirements listed in the Order in the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 (“EEFPA”), so the Order arguably does not currently apply in NYS. However, as of September 1, 2021, unless the NYS EEFPA eviction moratorium is further extended and provides the same or greater level of public health protection as the Order, the Order would then apply in NYS counties experiencing substantial and high levels of community transmission of COVID-19 at that time.
Importantly, the Order provides that “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; (5) 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).”
The Order also provides that it is a “temporary eviction moratorium to prevent the further spread of COVID-19. This Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.”
Any tenant, lessee or resident of a residential property who previously submitted a Declaration Form still qualifies as a “Covered Person” and is still present in a rental unit is entitled to protections under this Order.
Under the Order, there is a federal moratorium on pursuing Eviction4, to remove or cause the removal of a Covered Person5 from a residential property (for nonpayment of rent) against persons who submit a signed CDC Declaration (new declaration yet to be published but will be here) to their landlord, owner of the residential property where they live, or other person who has a right to have them evicted or removed from where they live, and certify under the penalty of perjury that they meet certain qualifying criteria set forth in the Declaration.
The criminal penalties for violating this Order are serious. Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating this Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law. An organization violating this Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.
Thus, should any landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action receive an executed Declaration Form from an alleged or purported Covered Person, it is recommended that you immediately contact BBG for advice and counsel to discuss and determine an advisable course of action, especially before pursuing eviction or any other form of possessory action.
1 Substantial” is defined as 50 to 100 cases per 100,000 people, or a positivity rate between 8% and 10%.
2 “High” is defined as 100 or more cases per 100,000 people, or a 10% or higher positivity rate.
3 Per the CDC, as of August 4, 2021, Queens, Bronx and Suffolk counties are experiencing “substantial” levels of community transmission, and New York, Kings, Richmond and Nassau counties are experiencing “high” levels of community transmission.
4 The Order defines “Evict” and “Eviction” as 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.
5 The Order defines “Covered Person” as any tenant, lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action, a sworn Declaration Form.