On September 4, 2020, the Centers for Disease Control and Prevention (CDC) issued a new Order, entitled “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.” The Order is effective nationwide through December 31, 2020 and creates the most wide-spread COVID-19 eviction moratorium to date.

Under the CDC’s Order, “a landlord, owner of a residential property, or other person [including corporations, firms, partnerships, etc.] with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction to which this Order applies[.]” For the purposes of the Order, a tenant, lessee, or residential property resident may be a covered person.

To receive protection under the Order, individuals must provide their landlord with a declaration under penalty of perjury indicating:

(1) they have “used best efforts to obtain all available government assistance for rent or housing;”

(2) they either (a) expect to earn no more than $99,000—$198,000 if filing jointly—in annual income in 2020, (b) were not required to report any income to the IRS in 2019, or (c) “received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;”

(3) they are unable to pay rent due to substantial loss of income, work or wages, a lay-off, or “extraordinary out-of-pocket medical expenses;”

(4) they are “using best efforts to make timely partial payments” that are as close to full rent payments as their “circumstances may permit”; and

(5) they have no other viable housing options if evicted, meaning an eviction would likely render them homeless or living “in close quarters in a new congregate or shared living setting[.]”

At this time, renters are not required to attach any proof of hardship, like bank statements or tax forms, to their declarations.

The CDC’s Order is effective throughout the United States, but “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 this Order.” For example, in recent weeks California and New York have enacted eviction moratoria of their own that appear, at least in some ways, to provide the same or greater protection.

Additionally, the CDC makes it clear that the 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.” Despite the inclusion of this language, landlords are concerned over the lack of financial support for property owners who will lose rent payments as a result of the Order.

The National Multifamily Housing Council, a landlord advocacy group based in Washington, D.C., issued a statement noting its disappointment over the decision “to enact a federal eviction moratorium without the existence of dedicated, long-term funding for rental and unemployment assistance.” The statement goes on to opine that, “[a]n eviction moratorium will ultimately harm the very people it aims to help by making it impossible for housing providers, particularly small owners, to meet their financial obligations and continue to provide shelter to their residents.”

Similarly, groups advocating renters’ rights, like the National Low Income Housing Coalition (NLIHC), have also criticized the Order. NLIHC published a statement describing the moratorium as, “a half-measure that extends a financial cliff for renters to fall off of when the moratorium expires and back rent is owed.”

Given the concerns regarding the financial impact on both landlords and tenants, the CDC’s Order will likely face numerous challenges in the coming months. We will continue to track developments relating to the Order as well as state and local eviction and foreclosure moratoria enacted in light of COVID-19.