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22 April 2021 / Larry R. Rothenberg

Understanding the Federal Residential Eviction Requirements Imposed on Landlords During the Pandemic

Topics: Real Estate

The Consumer Financial Protection Bureau (CFPB) has issued an Interim Final Rule (IFR), effective May 3, 2021, to address certain conduct associated with the eviction moratorium issued by the Center for Disease Control (CDC). The IFR provides sample disclosures landlords must include in their notices to tenants to leave the premises or face eviction. Using the sample language or its equivalent will comply with Regulation F, which implements the FDCPA, as amended by the IFR.


The CDC’s Order 

On March 28, 2021, the CDC’s Director signed an order extending to June 30, 2021, an existing agency order that imposes an eviction moratorium that generally limits the circumstances in which certain persons may be evicted from residential property.  

The CDC Order generally prohibits a landlord from evicting for non-payment of rent any person protected by the CDC Order from any residential property in any jurisdiction in which the CDC Order applies.


What the Landlord Must Do

The IFR requires “debt collectors,” as defined in the Fair Debt Collections Practice Act (FDCPA), to provide written notice to certain consumers of their protections under the CDC Order’s eviction moratorium.


What the Tenant Must Do to Qualify for Protection

To be a “covered person” under the CDC Order’s eviction moratorium, the tenant must submit a written declaration under penalty of perjury attesting to certain eligibility criteria generally establishing that, because of the person’s financial situation, the person is unable to make full rental payments and, if evicted, likely would become homeless or would be required to move into a congregate or shared living setting. 

Of course, for the tenant to file a declaration to obtain protection, they must first be aware that the CDC Order exists and may apply to them.  Hence the directive for the landlord to provide a disclosure of the tenant’s right.


What the CDC Order Does Not Cover

The CDC’s Order does not cover foreclosure on a home mortgage. The CDC Order also 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. 

Moreover, the CDC’s Order does not preclude evictions unrelated to the non-payment of rent. The CDC’s Order does not bar the filing of an eviction action in court, but it does prohibit the physical removal of a person from the property if the person meets the criteria and submits the declaration.  

In order to remove a tenant from the property through legal process, the landlord or its agent typically must first provide notice to the tenant of their intent to evict and, if the tenant does not bring the account current or leave the premises, then file an eviction action in court. 


How to Assure Compliance

The IFR suggests using one of the two following sample disclosures:
  1. “Because of the global COVID-19 pandemic, you may be eligible for temporary protection from   eviction under Federal law.
     Learn the steps you should take now.
     -  Visit www.cfpb.gov/eviction.
      - Or call a housing counselor at 800-569-4287."

     
  2. Because of the global COVID-19 pandemic, you may be eligible for temporary protection from   eviction under the laws of your State, territory, locality, or tribal area, or under Federal law.
     Learn the steps you should take now.
     -  Visit www.cfpb.gov/eviction.
      - Or call a housing counselor at 800-569-4287."
Although the landlord may use equivalent, even if not the exact sample language, using one of the sample’s exact language will assure the landlord that its notices are compliant. The disclosure must in writing, be clear and conspicuous, and be in or accompany the first notice to the tenant to leave the property. Landlords are not required to include the disclosure with subsequent notices, but the landlord may choose to do so.


Criminal Penalties for Violation

The CDC’s Order authorizes imposing fines on a person up to $100,000 if the violation does not result in a death, and up to $200,000 if the violation results in death. In addition, one year in jail is authorized. The fines for an organization violating the order are up to $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.


Rent is Not Forgiven

Under the CDC’s Order, rent is not canceled or forgiven. If the tenant fails to pay all of the back rent, the landlord may evict after the moratorium ends.


Wasn’t the CDC’s Order Found Unconstitutional?

A couple of federal judges have ruled that the CDC overstepped its authority in its eviction moratorium order, resulting in the order being unconstitutional. Court challenges in other jurisdictions have not been unsuccessful. Courts of Appeals or the U.S. Supreme Court may reverse those decisions. Given the minimal cost of compliance, landlords should stay in the safe harbor and comply with the requirements.

Some states or municipalities might provide tenant protections even greater than the CDC’s Order. Landlords should consult with their attorney regarding the requirements of a particular jurisdiction.

This blog is not a solicitation for business and it is not intended to constitute legal advice on specific matters, create an attorney-client relationship or be legally binding in any way.

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Larry R. Rothenberg

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