On April 14, 2021, the Centers for Disease Control and Prevention (CDC) updated the Frequently Asked Questions (FAQS) regarding the CDC order to temporarily halt residential evictions to assist in preventing the spread of COVID-19. The FAQs are non-binding and are meant to outline the CDC position on the moratorium, as well as that of other agencies. The order was first issued on September 4, 2020, and has been extended a number of times, most recently on March 29, 2021. The order expires (unless extended again) on June 30, 2021.
The past position of the CDC was that landlords were not required to inform tenants of the order, or to assist residents in using the order to avoid eviction. The most significant change in this update is guidance that federal law may require landlords to make their tenants aware of the Order. Specifically, the Update explains that, although the Order itself does not contain a notice requirement, the Fair Debt Collection Practices Act (“FDCPA”) and the Federal Trade Commission Act (“FTCA”) may require landlords or their agents to make their tenants aware of the order and that, under these statutes, evicting tenants in violation of the CDC, state, or local moratoria or evicting or threatening to evict without informing a tenant of their legal rights under such moratoria, may violate prohibitions against deceptive and unfair practices. The CDC also notes that the Consumer Financial Protection Bureau (“CFPB”) and the Federal Trade Commission (“FTC”) issued a joint statement in March stating that evicting tenants in violation of the CDC, state, or local moratoria or evicting or threatening to evict tenants without informing them of their legal rights under such moratoria may violate prohibitions against deceptive and unfair practices, including the FDCPA and the FTCA.
Also, on April 19, 2021, the CFPB issued an interim final rule, effective May 3, 2021, that would require “debt collectors” under the FDCPA, to notify tenants of the CDC moratorium or other applicable moratoria. A “debt collector” as defined under the FDCPA is a person or party seeking to collect a debt, or rent, on behalf of a third party. This would include any company that regularly collects debt for another person or entity, and certainly applies to fee management companies. The plain language of the rule indicates that the landlord who is owed the rent would not be a debt collector, while an attorney or management company, could be a debt collector and subject to this additional notice requirement.
In the updated FAQs, the CDC is encouraging landlords, even if not legally required to do so, to inform tenants of the Order. The Update also expands penalty guidance, emphasizing reporting violations to the local U.S. attorney’s office or the National Center for Disaster Fraud for prosecution.
Other change in the Update include:
- Replacing prior language with new, more direct language stating that a landlord violates the Order by executing a writ of eviction or possession that led to the actual physical removal of a covered person during the term of the Order;
- Clarifying that a person is likely to qualify as a “covered person” under the Order if they receive federal low-income benefits, such as TANF, SNAP, SSI, or SSDI;
- Clarified that “covered persons” must provide a completed and signed copy of the required qualification declaration and may include not just the landlord but property managers, attorneys, or agents of the landlord/owner or any other person with a legal right to carry out an eviction;
- Expanded on past language that the Order applies, broadly, to any landlord, owner of a residential property, other person with a legal right to pursue an eviction or a possessory action against a residential tenant, lessee, or resident, including an agent or attorney acting on behalf of the landlord or the owner of the residential property; and
- Expanded on prior language that it does not supersede state and local laws that provide the same or greater protection, as determined by the applicable court, but does supersede all state or local orders to the extent state or local laws conflict with the Order.
It is likely that the CDC will take an ever more aggressive position relative to enforcement of the Order, and an extension beyond June 30 is highly likely. Based on this new guidance, it is recommended that landlords, owners, agents, and management companies discuss with their attorneys whether any revised tenant notice requirements should be put into effect.