EVICTION NOTICE – CUZ IT’S IN DA NEWS
More than a few people have inquired about the latest Panic Button issue: MASSIVE EVICTIONS and EVICTION MORATORIUM.
These are mermaids riding unicorns. Do not go any further in this e-mail if you enjoy believing they exist as reported.
Disclaimer: I do not watch the News. Such is the secret to my joyful disposition! Butterflies! Rainbows! However, even standing a good distance away from the firehose of nonsense, one can feel its overspray. I had a head-on collision with this “Eviction Moratorium” last month when closing a sale that had a ‘bad’ tenant involved. The Tenant refused to leave, citing the moratorium, among other things. We rolled up our sleeves; Tenant WAS evicted. That deal IS closed. Sorry Moratorium. You’re not real. What we learned:
- There is no blanket Eviction Moratorium. There never was one. I recognize the news and politicians have made claims that such a Moratorium existed/exists. Those claims are false. The Hot List does not do politics. But we will do word games! Let’s dissect the words at hand:
The Original CDC Notice Link: https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19
That notice was the genesis of Eviction Moratorium rumors and fallacies. Cutting right to the Lawyer written bits, under “Applicability” we find this nugget:
“Under this Order, a landlord, owner of a residential property, or other person [3] with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any jurisdiction “
Notice it does not say “persons”, but instead says “covered persons”. This is a distinction indicating there will be some people this Order may apply to, but it does not apply to ALL people, thus it is not a blanket Order. Two paragraphs later we greet the most important piece of the puzzling text:
“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.”
- Covered Persons: To become a “Covered Person” tenants must sign and provide to their landlord, or owner of the property, an executed copy of a Declaration Form (Attachment A), under penalty of perjury, attesting to their current financial difficulty and demonstrating how they are already making partial rent payments, and how they will pay back any rents and fees that are, or will be, in arears. You can find that Declaration’s text at the bottom of the CDC’s Order linked above…look for the following start point:
“I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the foregoing are true and correct:”
That Declaration Form ends with this love note from the ‘Covered Person’, otherwise known as the Declarant:
“I further understand that at the end of this temporary halt on evictions on December 31, 2020, my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to State and local laws.”
Listen. Understand. The only persons this Eviction Moratorium ever applied to are the “covered persons” who went through the steps of applying for it. To apply they had to meet the following pre-qualifications, in specific order:
- Tenant has applied for government assistance (keyword “has”)
- Individual expects to earn less than $99k or did not report ANY income in 2019 or received a stimulus check.
- Individual is unable to pay full rent due to loss of work hours or wages or medical expenses
- Individual is making partial rent payments
- Eviction would render the individual homeless
If the Tenant met all of those qualifications, they then sign the Declaration and deliver it to their landlord, or owner of the property, where they reside. This Declaration is made under the penalty of perjury, and by handing it to their landlord, Tenants are declaring that they will pay ALL rents due, and ALL associated fees, immediately once the moratorium ends. Handing a landlord such a Declaration is handing the Landlord the materials they will later sue the Tenant with if they don’t perform. That is, if this next sentence doesn’t happen first:
“These persons may also still be evicted for reasons other than not paying rent or making a housing payment. “
“Reasons”…left legally undefined. Lawyers feeding lawyers. Somebody called this a Moratorium did they?
IN SUM: There is no/was no blanket Eviction Moratorium, ever. The “TIDAL WAVE OF EVICTIONS” the panic button screams is coming? Well, that number is undefinable. Nobody can count how many Declarations were delivered to Landlords. Nobody knows how many such Declarations may exist because the CDC peppered their Order with this classic zinger:
“Executed declarations should not be returned to the Federal Government.“
Get that? The CDC does not want to know how many CDC Declarations were filed. That’s…rather amazing! Here, take our form to your Landlord, but do not tell us you did so. Hands cup ears. “Na-Na-Na-Na, I can’t hear you!” That’s pure grain, unfiltered, madness.
Evictions never went away. My recent experience with the eviction court led me to discover that the court system is indeed overwhelmed. According to our wise and astute eviction attorney, Andrew Hull (that’s a plug!), this “Eviction Moratorium” story has convinced an excruciating number of Tenants that they can simply quit paying rent. Many did, to their own detriment. “Declaration? We don’t need no stinking Declaration!”. Paperwork and processes aren’t for everyone.If a Tenant did not perform the CDC’s dance steps in their specific sequence order, said Tenant does not get to enjoy the CDC’s Eviction Moratorium.
It’s been a great year to be an eviction attorney!
It’s going to be a banner year for bankruptcy attorneys coming up.
Fears that there is some bent hose about to unfurl, releasing millions of eviction notices, is probably fool’s gold. Evictions are a court action. Each one has to be processed through the system, and the court is slower than January molasses during an arctic freeze. There is a thick backlog. I had to fight through that red tape planetoid for my client. Not easy. Our closing was delayed three weeks while we crowbar pried the Seller’s property from the Tenant’s cold stoned hands.
At one point in the Eviction proceedings the judge suggested to the Tenant that he apply for the CDC Moratorium, via the Declaration. That suggestion sent my eyebrow flying overhead so high the FAA is still tracking its trajectory. Fortunately for my client, the Tenant was too drug riddled to understand the suggestion. Anyhow, you will see hand wringing and forlorn politicians claiming they “did their best” to save tenants from themselves, that a law is necessary, blah, blah, propaganda, blah, it’s all cheap theater.
We live in a land of clicks now. I find it unfortunate, shameful really, that this Eviction Moratorium story grew the legs it did. That so many Tenants believed they could simply stop paying rent, and thus did. Those responsible for this fable’s spread harmed tenants and landlords alike. That damage is real. That pain is non-fictional. Apparently the end game was further legislation? At what cost? Destroying tenant and landlord alike, financially and emotionally, is not a win.
We recognize that numerous articles have been written claiming a nationwide CDC Eviction Moratorium exists. It does not. Never did. And that’s why we provided the CDC documentation linked above, from their site, so you can see it, read it, and digest the facts. Interpret it for yourself. It’s possible that numerous media outlets never read past the word “moratoria”. Never read the required Declarant’s statement. Never considered all the mechanics of the requirements for qualification. Never thought to ask why the Federal Government did not want to know how many participants its own Order affected.
It’s possible.
We, you and I, can do better.
Meanwhile, the CDC issued a new statement late last night, attempting to extend the previous program through October 3rd:
https://www.cdc.gov/coronavirus/2019-ncov/communication/Signed-CDC-Eviction-Order.pdf
Please understand. What they want to extend is the same order as before. Same qualifications are required. Same Declaration must be delivered. What’s new is all the Fine Print they’ve added, which can be measured in pounds! Fun.
If you have friends or family who’ve decided to quit paying their rent because “Hey, there’s a nationwide Eviction Moratorium”, today would be a good day to reach out to them and introduce them to the links above. We have to watch out for each other. Nobody else is.
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