Eviction Ban Clarification Generates Confusion

by Chris on October 19, 2020

After enacting a ban on eviction filings for nonpayment of rent from September 4 through December 31, the Administration issued further guidance last week that is causing some confusion.

This latest guidance comes in the form of an FAQ offered jointly from the CDC, U.S. Department of Health and Human Services, HUD, and the U.S. Department of Justice. The additional clarification comes after at least two dozen lawsuits were filed challenging the legality of the federal eviction ban, which was issued by Executive Order without any corresponding stimulus funds for tenants or additional relief for landlords.

Many of those landlords challenging the federal ban already have experienced months of no or only partial rent payments and manage rental properties in states where local eviction bans have expired.

Despite the language in the original order halting evictions, the new guidance advises that the federal ban relates to removal of tenants, not eviction filings. It suggests that landlords can queue up a case now, and then proceed with efforts to evict the tenant after the ban expires on December 31. A handful of landlord associations already are advising landlords to move forward with eviction cases.

On the face of it, the ability to file an eviction now and avoid the onslaught of cases expected in January would benefit landlords. However, the FAQ is not legally binding and courts may not agree that the language of the federal order allows them to proceed with an eviction filing or issue any orders until the ban expires.

Given the logistics of eviction filings in many jurisdictions, like a requirement that the tenant be served with a summons to appear that includes a hearing date, some courts may be hesitant to commit time and resources needed to pursue cases that could be held in limbo or require multiple hearings to update eviction orders.

The government’s FAQ also suggests that landlords are not required to provide notice of the eviction moratorium to tenants when filing an eviction. However, at least one state is taking issue with that interpretation.

The Texas Supreme Court has ordered landlords to include notice of the eviction moratorium and the right to submit a declaration in the eviction filing documents. The court has indicated that judges have the authority to ask a renter if they are aware of the eviction moratorium, and landlords must explain if they’ve received a tenant declaration. It is likely more courts will take a similar approach to avoid unnecessary hearing delays, continuances, and appeals.

Other courts are looking at ways to preempt the anticipated glut of eviction cases when the ban expires. Nevada courts, for instance, are looking to send eviction cases to mediation first, prompting an additional 30-day delay.

Even if a court is willing to enter the eviction order early, filing an eviction so far in advance leaves disgruntled tenants in the property for months with nothing to lose, increasing the risk of subsequent rent defaults and property damage. The most likely scenario: tenants realize they have ample time to live rent free, and then move out at the last minute.

Tenants subject to the eviction moratorium still owe rent under the order, including late fees or interest provided for in the lease agreement. That entire sum will be payable in January under the current order. It is estimated hundreds of thousands of tenants will face eviction in 2021, and delays in hearing cases and processing orders appear inevitable.

Landlords who already were in process of evictions are particularly vulnerable to income loss. Because the effective date of the federal eviction ban is September 4, any eviction for nonpayment of rent initiated prior to that now is subject to the moratorium. If the tenant submits a declaration under the federal order that the pandemic is the reason for nonpayment, a court may not issue the eviction order until January.

For more on the federal eviction ban, including which tenants are covered and tenant declarations, see our previous post, Extended Eviction Ban a Setback for Landlords.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

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Disclaimer: The information provided in this post is not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

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