THE FEDERAL EVICTION MORATORIUM IN FLORIDA (OVERVIEW AND UPDATE)
Updated: Dec 2, 2020
On September 1st, 2020, the Center for Disease Control and Prevention (CDC) issued an order imposing a nationwide moratorium on most evictions for non-payment of rent (the “CDC order”). As of October 1st, 2020, Florida’s statewide moratorium on evictions, which was first implemented in March 2020, has expired. In Florid, those at risk of eviction for non-payment of rent, have to rely on Federal protections.
Absent any changes or extensions, the CDC order should prohibit landlords, or others with the right to pursue an eviction, from evicting tenants, lessees, or residents of residential properties who qualify as “covered persons” through December 31st, 2020 (the “CDC moratorium”).
This article discusses the CDC moratorium, its requirements, provisions, and effects, and contains an overview of the state of evictions and rental assistance in Florida. Also, below are links to key references and useful information on assistance.
STATE OF EVICTIONS IN FLORIDA
Now that Florida’s statewide moratorium on evictions for non-payment of rent has expired, the CDC moratorium is the effective moratorium on most evictions in Florida.
According an Aspen Institute study, cited in the CDC order, 30 to 40 million renters are at risk of losing their homes during the coronavirus pandemic. Similarly, it must be noted, landlords who depend on rents payments as a source of income are falling behind on their expenses and mortgages, putting them at risk of foreclosure.
The CDC order provides a temporary solution, a stop-gap measure to address these issues, but once it expires, countless renters and landlords will not be able to pay what they owe. In other words, there is a mounting housing crisis that the CDC order says could result in a wave of evictions that is unprecedented in modern times.
In short, to qualify as a covered person under the CDC moratorium, a tenant, lessee, or residential tenant must 1) meet the eligibility requirements, detailed below, 2) complete a sworn declaration certifying they meet such requirements (the “Declaration”), and 3) provide a signed copy of the Declaration to their landlord. This should prevent covered persons from being evicted through December 31st, 2020. Click on this link for a downloadable copy of the CDC’s declaration.
Keep in mind, that while the CDC moratorium has halted most evictions, it has not suspended the obligation to pay rent; nor does it prevent landlords from charging fees, penalties, or interest for late payments or non-payment of rent. This means that once there is no moratorium, in order to avoid being evicted, previously covered persons will have to pay what they owe all at once, which is a perilous situation.
THE CDC MORATORIUM
To qualify as a covered person under the CDC order, a tenant, lessee, or resident of residential property must provide the landlord with a signed Declaration, under penalty of perjury, certifying that:
(1) The individual has used best efforts to obtain all available government assistance for rent or housing;
(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
(3) The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses; and
(5) Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting because the individual has no other available housing options.
If a landlord wants to dispute the truthfulness of a tenant’s declaration, they may do so in any state or municipal court.
Unlike previous moratoriums in Florida, the CDC moratorium allows for evictions of covered persons to be initiated. According to a government memo (discussed below), the CDC order is not “intended to prevent landlords from starting eviction proceedings, provided the actual eviction of a covered person for non-payment of rent does NOT take place during the period of the Order.”
PENALTIES FOR VIOLATION OF
THE CDC ORDER
The purpose of the CDC moratorium is to prevent the spread of Covid-19, which poses a severe threat to public health. In order to enforce compliance, the CDC order provides that anyone who violates the order may be subject to criminal penalties, including fines and jail time.
For violating the CDC order, individual landlords may be fined up to $100,000, one year in jail, or both, if the violation does not result in death; or, if the violation does result in death, up to $250,000, one year in jail, or both. For corporate landlords, up to $200,000 per violation, if the violation does not result in death, or $500,000 per violation if it does result in death.
On October 9, 2020, the government issued a memo (the “Memo”) addressing frequently asked questions about the CDC order, a “non-binding guidance document shares the views of the Centers for Disease Control and Prevention (CDC), U.S. Department of Health and Human Services (HHS), U.S. Department of Housing and Urban Development (HUD), and U.S. Department of Justice (DOJ).”
The government issued the Memo to clear up confusion caused by the CDC order. Some argue that the Memo created more confusion than it cleared up. For example, neither the CDC order nor Memo state whether a tenant’s inability to pay rent must be related to Covid-19. On the other hand, some of the rental assistance programs in Florida still seem to require that a tenant’s inability to pay rent be related to Covid-19. To many, such a requirement has always been confusing because these days almost any loss of income is arguably related to Covid-19.
Some of the outstanding questions that the Memo did clear up are the following.
To seek the protection of the CDC order, a signed Declaration should be provided by every adult listed on the lease, rental agreement, or housing contract. Also, the signed copy of the Declaration may be transmitted either electronically or by hard copy.
Landlords must comply with the CDC order, but are not required to make their tenants aware of the CDC order or Declaration. This has led some landlords to quickly file before their tenants learn about the CDC order and its protections.
Though not addressed by the Memo, some courts, however, are scheduling mediations in eviction actions against potentially covered persons, where legal aid attorneys have informed such persons of their rights. Legal-aid attorneys have also helped such persons determine whether they qualify as a covered person in order to assist them in obtaining rental assistance.
Ultimately, the full implications of the CDC order and the Memo, will not be clear until the courts in Florida have interpreted and construed the CDC order and fully implemented a uniform procedure.
The state of Florida has allocated funds to assist renters who have been impacted by Covid-19 and are struggling to pay rent or housing expenses. In July 2020, Governor Desantis allocated 250 million dollars from Florida’s Coronavirus Relief Fund (CRF) for renter and homeowner assistance programs. As of now, the CRF is set to provide housing assistance through December 31, 2020.
Generally, as long as a homeowner or renter can show that they have lost income because of the pandemic, they are likely to qualify for assistance. The amount of funds, however, are limited, so renters and homeowners who would qualify are encouraged to apply for assistance as soon as possible. The deadline to seek assistance expires on December 30, 2020.
These are difficult and confusing times for many landlords and tenants. The status and future of evictions has been in a state of flux and uncertainty. With no clear end to the crisis in view, renters and homeowners are left in a state of frustration and anticipation. For assistance you can contact local agencies about relief programs, seek the assistance of local legal aid attorneys or, if you do not qualify for legal aid, contact an attorney to help you protect your rights and interests.
LAST UPDATED DECEMBER 1st, 2020. WILL BE UPDATED FOR CHANGES. SEE KEY REFERENCES BELOW FOR MORE INFORMATION ON EVICTION PROTECTIONS AND RENTAL ASSISTANCE.
(C) 2020 Bress Law Firm, PLLC.
The BRESS LAW FIRM, PLLC is located in Aventura, Florida, but serves clients throughout Miami-Dade County. Our areas of practice are Residential and Commercial LANDLORD AND TENANT LAW; WILLS, TRUSTS, & ESTATES; and CONTRACT LAW.
REFERENCES, AND INFORMATION
THE CDC ORDER CDC Order entitled Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020).
THE NON-BINDING MEMO MEMO HHS/CDC Temporary Halt in Residential Evictions to Prevent the Further Spread of Covid-19 FAQ https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-moratoria-order-faqs.pdf
CDC DECLARATION FORM https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf
LOCAL GOVERNMENT APPLICATION START DATE LIST, FLORIDA
LEGAL AID IN YOUR AREA, LOCATOR https://www.lsc.gov/what-legal-aid/find-legal-aid
Equal Housing Opportunity