CDC Engages in Wrongful Taking

Under our constitution, the government cannot confiscate private property without compensation to the owner of that property. However, the CDC has announced that tenants which can meet certain tests are not required to pay their rent and there is nothing the landlords can do about it. The CDC is confiscating rental income without in any way compensating the landlords.

On Sept. 1, the Centers for Disease Control and Prevention (CDC) announced an order to halt residential evictions through Dec. 31, 2020. The CDC issued the order under Section 361 of the Public Health Service Act in an effort to prevent the further spread of COVID-19.

According to data from the Census Bureau’s American Housing Survey, almost a third (32%) of renters responded that if evicted, they would have to move in with family or friends. Unlike the CARES Act, whether or not the rental property has a mortgage is not a consideration.

This order may not be constitutional for many reasons and one landlord in Virginia is in the process of challenging it. But until we get better clarification on the applicability of this order, we intend to be very careful with our eviction filings.

The CDC notes that the order doesn’t relieve individuals of their obligation to pay rent, and doesn’t preclude charging or collecting fees, penalties, and interest as the result of failing to pay rent in a timely manner.

In addition, residents can still be evicted for other reasons not related to rental payments. Tenants who make more than $99,000 a year ($198,000 for couples) are also excluded from the order.

In order for a tenant to be protected from eviction they must legally swear to all of the following

I certify under penalty of perjury, pursuant to 28 U.S.C. 1746, that the following are true and correct:

· I have used best efforts to obtain all available government assistance for rent or housing;

· I either expect 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), was not required to report any income in 2019 to the U.S. Internal Revenue Service, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;

· I am unable to pay my full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses;

· I am 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;

· If evicted I would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because I have no other available housing options.

· I understand that I must still pay rent or make a housing payment, and comply with other obligations that I may have under my tenancy, lease agreement, or similar contract. I further understand that fees, penalties, or interest for not paying rent or making a housing payment on time as required by my tenancy, lease agreement, or similar contract may still be charged or collected.

· 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.

Here is a link where you can read the CDC’s order in full.

https://www.federalregister.gov/documents/2020/09/04/2020-19654/temporary-halt-in-residential-evictions-to-prevent-the-further-spread-of-covid-19

In the meantime, if you need to have a tenant removed, you can offer the tenant a “cash for keys” deal to save both parties the trouble of the eviction process or you can find a valid reason for evicting that is not related to the tenant not paying rent. If your lease expires, if the tenant is in default for some other reason and you terminate the lease, then you are evicting for “Holding Over” beyond the termination of the lease.

Professional property management in the Metro Atlanta areas, including Alpharetta property management companies, can help real estate investors find and retain tenants for their properties, as well as keep those properties in attractive condition.