Government Steps Up Enforcement of CDC Eviction Moratorium

Owners who violate the moratorium, now extended through June, face stiff penalties for violations.

On March 29, the Centers for Disease Control and Prevention (CDC) announced an extension of the federal eviction moratorium through June 30, 2021. Before this extension, the moratorium was set to expire March 31, 2021. This recent order is the moratorium’s third extension since it was initially enacted on Sept. 4, 2020. As before, individuals who are unable to pay their rent in full must sign and submit a declaration form to their landlord to invoke the eviction protections and can apply for emergency rental assistance.

Enforcement Initiatives

This time, however, the order comes with greater enforcement of the moratorium’s protections. According to the fact sheet issued by the White House, the Consumer Financial Protection Bureau (CFPB) and the Federal Trade Commission (FTC) will launch efforts to not only increase awareness of the moratorium’s protections but also enforce penalties against owners who violate the order.

The CFPB and FTC issued a joint statement outlining their intent to investigate eviction practices they deem unlawful—including those that may violate provisions under the Fair Debt Collection Practices Act and the Federal Trade Commission Act.

CFPB Acting Director Dave Uejio and FTC Acting Chairwoman Rebecca Slaughter said, “Staff at both agencies will be monitoring and investigating eviction practices, particularly by major multistate landlords, eviction management services, and private equity firms, to ensure that they are complying with the law. Evicting tenants in violation of the CDC, state, or local moratoria, or evicting or threatening to evict them without apprising them of their legal rights under such moratoria, may violate prohibitions against deceptive and unfair practices, including under the Fair Debt Collection Practices Act and the Federal Trade Commission Act.”

Stiff penalties. In addition to the FTC and CFPB efforts, the eviction moratorium order specifically authorizes the U.S. Department of Justice (DOJ) to initiate criminal proceedings against those who violate the order. Individuals may be penalized with a fine no more than $100,000 and/or one year in jail if the violation doesn’t result in death, and a fine up to $250,000 and/or one year in jail if it does. Organizations may be penalized with a fine no more than $200,000 if the violation doesn’t result in death and a fine up to $500,000 if it does.

Clash with courts. Recent court orders from various jurisdictions have invalidated the CDC moratorium order, but the Justice Department has clarified that these decisions don’t extend beyond the particular plaintiffs in the case and don’t prohibit the application of the CDC’s eviction moratorium to other parties. Accordingly, the CDC’s order remains in effect, and the DOJ is appealing those court rulings and has filed for an emergency injunction preventing them from taking effect.

HUD’s April 1 Memo

HUD’s Office of Multifamily Housing issued an updated memo to housing providers and a set of Q&As related to the CDC order to temporarily halt residential evictions. The memo was issued on April 1 by Toby Halliday, the Director of Office of Asset Management and Portfolio Oversight at HUD’s Multifamily Housing Programs. He wrote, “In addition to extending the effective period date, the updated Order also includes newly available modeling projections and observational data from COVID-19 incidence comparisons across states that have implemented and lifted eviction moratoria, which demonstrates the ongoing public health rationale for the extension.”

The memo also emphasizes that the rent is still due, residents must continue complying with terms under the lease, and evictions unrelated to nonpayment of rent can still take place. Also, any state, local, tribal, or territorial area with a moratorium on residential evictions that provides the same or greater level of public health protection can supersede the updated CDC order.

Resident Declaration Required to Invoke Protection

Separately, HUD’s Office of Multifamily Housing Programs released a set of Q&As to answer common questions about the eviction moratorium extension. It covered information regarding the resident declaration requirement and its applicability to HUD-assisted residents.

Broadly speaking, the CDC’s order applies to all Office of Multifamily Housing assisted housing programs, including project-based Section 8, Section 202, Section 811, and multifamily properties with FHA mortgage insurance.

Under the order, HUD-assisted residents must sign and submit a declaration to become a “covered person” and receive the order’s protection. The signed declaration must be submitted to the owner or management agent of the residential property where they live or to another person who has a right to have them evicted or removed from where they live. A resident can’t be required to complete the declaration. But, without the declaration, residents aren’t protected from eviction under the order. This means that until the declaration is signed and submitted to the owner or agent, the CDC eviction protection isn’t in place.

Declaration submission. The declaration may be signed and transmitted either electronically or by hard copy. Each adult listed on the lease, rental agreement, or housing contract should complete the declaration. In certain circumstances, such as individuals filing a joint tax return, it may be appropriate for one member of the residence to provide an executed declaration on behalf of other adult residents party to the lease, rental agreement, or housing contract at issue.

If possible, HUD recommends residents send the signed declaration using a method that provides them with a time-stamped receipt, such as via email, and that residents keep a copy of the signed declaration for their records. The CDC has issued a declaration form that’s compliant with the order; it’s available on the CDC website at www.cdc.gov/coronavirus/2019-ncov/downloads/EvictionDeclare_d508.pdf (English) and https://www.cdc.gov/coronavirus/2019-ncov/downloads/Eviction-Declare-esp-508.pdf (Spanish).

It’s important to note that residents aren’t obligated to use the CDC form. Any written document that an eligible individual presents to their landlord will comply with the order, as long as it contains the same information as the CDC declaration form. All declarations, regardless of the form used, must be signed, and must include a statement that the covered person understands that they could be liable for perjury for any false or misleading statements or omissions in the declaration.

Other languages. In addition, residents are allowed to use a declaration translated into other languages. Even though declarations with other languages may satisfy the requirement that a covered person must submit a declaration, the CDC can’t guarantee that they in fact do satisfy the requirement. But declarations in languages other than English are compliant if they contain the information required to be in a declaration, are signed, and include a statement that the covered person understands that he or she could be liable for perjury for any false or misleading statements or omissions in the declaration. HUD has made translated versions of the declaration available on its website.

Government assistance requirement. The CDC order requires residents to sign the declaration certifying that they’ve made their “best efforts to make timely partial payments […and] get government assistance” in making rent or housing payments. HUD-assisted residents may consider the fact of their participation in a rental assistance program when determining whether they’ve made their best effort to obtain government assistance. Under the order, it’s the resident’s responsibility to certify to truthful information, as any false or misleading statements or omissions may result in criminal liability.

Verifications. Owners and agents aren’t required to verify the certifications in the declaration. The order states that residents must make a certification to the truthfulness of the information provided in the declaration under the penalty of perjury.