A client recently asked me whether properties with money from the National Housing Trust Fund (HTF) are subject to the eviction moratorium protections of the CAREs Act. This is a somewhat confusing issue so a detailed review of the HTF protections is called for.
The temporary eviction moratorium of the CAREs Act does apply to certain (but not all) projects assisted by the HTF.
On March 27, 2020, the CAREs Act became law. Section 4024 of the Act imposes a temporary moratorium on evictions. This moratorium went into effect immediately upon the enactment of the law and is in place for 120 days.
Applicability to the HTF Program
The CAREs Act applies to a property with HTF assistance structured as a loan and secured by a lien on residential rental property. Since HTF is not a “covered housing program” (as defined in §41411(a) of the Violence Against Women Act of 1994), only a property assisted with a HTF loan secured on the property is a “covered property” under Section 4024(a)(2)(B) of the CAREs Act.
Projects that received HTF assistance as a grant or unsecured loan are not subject to the CARES Act eviction moratorium but could be subject to state or local eviction moratoriums.
When assessing the applicability of the CARES Act temporary eviction moratorium on a project, owners should review all sources of support, since other incentives and funding sources (e.g., HOME or LIHTC) are “covered housing programs” under the CARES Act.
The applicability of the moratorium is not affected by the repayment terms of the HTF loan. Any project with an HTF loan secured by a lien or residential rental property is a covered property. This includes HTF loans with “soft” financing terms such as deferred or residual receipts payments and forgivable loans.
If an HTF project is subject to the moratorium requirements of the CARES Act, the moratorium applies to all units in or on the property, regardless of whether the project is within its HTF Period of Affordability (POA).
If a project is subject to the CARES Act eviction moratorium, for a period of 120 days, beginning on March 27, 2020 and continuing through July 24, 2020, an owner cannot:
- Make, or cause to be made, any filing with the court of jurisdiction to initiate an eviction for non-payment of rent or other fees or charges; or
- Charge fees, penalties, or other charges to the tenant related to non-payment of rent.
If an owner did not provide the tenant with an eviction notice, including but not limited to a notice to vacate, quit, or terminate tenancy, for nonpayment of rent or other fees or charges before March 27, 2020, the owner may not issue such notice until after the 120-day period.
Owners are reminded that fees, penalties, or charges relating to the non-payment of rent also cannot be charged. Therefore, there should be no charges, penalties, or fees assessed and accrued for non-payment of rent during the 120-day period.
It is important to note that this moratorium is not “rent forgiveness.” Unpaid monthly rent and fees and other charges (except fees and charges related to nonpayment of rent) may accrue during the 120-day period and be charged to the tenant after the 120-day period ends on July 24, 2020.
The CARES Act moratorium does not apply to evictions based on violations of permitted lease terms other than nonpayment of rent or other fees, penalties, and charges. However, the HTF regulations at 24 CFR 93.303 still apply to HTF-assisted units. Owners should also review their state and local laws, since many state and local jurisdictions are also enacting their own eviction moratoriums.
HTF grantees (e.g., state or local governments) should have already provided owners of HTF-assisted properties with written notice of the CARES Act provisions and should have directed owners to provide tenants with information about their due process rights under the HTF Program. Based on the fact that I received a question on CARES Act applicability to the HTF program, it appears that program grantees are not notifying owners regarding their responsibilities under the program.