How the CARES Act affects Residential Evictions
*Update 7/27/20: The 30-day notice requirement is still in effect, though the moratorium has expired.
On March 27th, the CARES Act, a multi-trillion-dollar stimulus act, was ratified by the Federal Government to help the economy get through and recover from the economic restrictions put in place to manage the COVID-19 Pandemic. Even if you aren’t familiar with it, you probably have heard of some of the programs it created, it’s the Act that granted every citizen a $1,200 stimulus check. The Act is over three hundred pages and touches many sectors of the economy. The portion of the Act I will be going over in this article is Section 4024, “Temporary Moratorium on Eviction Filings”.
There are three subsections under Section 4024 and I’ll be going over each below. It may get a bit dry and technical as the subject matter is rather mechanical, but it is important to understand if you manage or own any rental properties and need to evict someone.
Subsection (a) defines the major terms used within section, including what makes a property a “covered dwelling” and thus which properties are restricted by the moratorium. If your property falls within the definition of a “covered dwelling”, you must abide by the moratorium and the extended notice provisions of Subsections (b) and (c) as discussed below.
If your property does not fall within the definition, good news, you do not have to abide by the federal moratorium, but you should still be able to explain to a court how you made that determination and your property may still be subject to local restrictions. Miami-Dade County is requiring that all evictions filings include an affidavit explaining how the determination was made. As new procedures are being decided daily by individual counties and circuits, we have decided to proactively include a similar affidavit with our evictions to cover all bases.
How do you determine if your property is a “covered dwelling”? Answer the following questions to find out.
- 1. Is the property a residential property occupied by a tenant (someone who has paid or is expected to pay money for the right to occupy the property)?
YES, go on to Question 2.
NO, not a “covered dwelling”, moratorium not applicable.
- 2. Is the property mortgaged?
YES, go to Question 3.
NO, go to Question 4.
- 3. Is the mortgage federally backed?
- This will generally include any loan on a single family or multifamily residence backed, guaranteed, or supplemented by any office or agency of the Federal Government, such as Fannie Mae, Freddie Mac, HUD, VA, or USDA; or loans securitized or purchased by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.
- Make sure to verify this information; your lender may have sold your loan without your knowledge. Check with your servicer to see who currently owns your loan.
- It is estimated that nearly 70% of all mortgages are federally backed, therefore, as a general policy for EvictFL.com, before filing any eviction for a mortgaged property, you must provide documentation proving your mortgage is not federally backed.
YES, your property is subject to the moratorium described below.
NO, go to Question 4.
- 4. Does the property participate in any of the covered housing programs below?
- Violence Against Women Act covered housing program (34 U.S.C. 12 12491(a))
- Section 202 Supportive housing for the elderly (12 U.S.C 1701q)
- Cranston-Gonzalez National Affordable Housing Act
- Section 811 Supportive housing for persons with disabilities (42 U.S.C. 8013)
- HOPWA Housing opportunities for Persons with AIDS (42 U.S.C. 12901 et seq.)
- HOME Affordable Housing (42 U.S.C. 12741 et seq.)
- McKinney-Vento Homeless Assistance Act (42 U.S.C. 11360 et seq.)
- Section 221(d)(3) below market interest rate housing (12 U.S.C. 1715l(d))
- Section 236 rental and cooperative housing for lower income families (12 U.S.C. 1715z-1))
- Low income housing assistance programs under:
- Public Housing, Section (42 U.S.C. 1437d)
- Section 8 Housing Choice Voucher program (42 U.S.C. 1437f)
- Section 8 project-based housing (42 U.S.C. 1437f)
- Rural housing assistance programs (42 U.S.C. 1484, 1485, 1486, 1490m, 1490p-2, and 1490r)
- HUD LIHTC low income housing tax credit (26 U.S.C 42)
YES, your property is subject to the moratorium described below.
If you answered NO to both Questions 3 and 4, your property is not subject to moratorium, but may be subject to state and local restrictions.
If you have determined that your property is not a “covered dwelling” and is not impacted by the federal moratorium, make sure you note how you made this determination. You may need to present the information to a court in an eviction.
If you have determined that your property is a “covered dwelling”, the next step is seeing how the moratorium affects you.
Subsection (b) is very simple; it states that for tenants renting “covered dwellings”, during the 120 day period following the enactment of the CARES Act, you cannot initiate an eviction for nonpayment of rent and you cannot charge any fees or penalties for nonpayment of rent. The Act went into effect on March 27th, 2020, which means that no evictions may be initiated until July 26th, 2020. However, Subsection (c) described below actually extends this to August 26th, 2020. The language of this Subsection specifies that the moratorium only affects evictions for nonpayment. Evictions based upon other lease violations or holdover tenancies may be allowed during this time, depending on the interpretation of Subsection (c).
Subsection (c) requires giving a tenant a “notice to vacate” no less than 30 days before the tenant is required to vacate. And this notice may not be served on the tenant until the moratorium has expired. There are some issues with this Subsection, but in general, it means that a landlord of a “covered dwelling” may not serve a tenant with a notice until July 26th, 2020 and an eviction may not be filed until August 26th, 2020, after the notice has expired.
There are two significant issues with this Subsection. First, “notice” is not defined. In Florida, notice requirements are very specific and can make or break a case. The notice required for a nonpayment eviction in Florida requires that you give the tenant the opportunity to pay or vacate within a period of 3 days; however, the Act is silent on the opportunity to pay and only references a “notice to vacate”. There is some disagreement among the legal community as to what this means. In the broadest application, I would suggest that the 3-day notice to pay or vacate simply becomes a 30-day notice to pay or vacate for covered dwellings. There is no wiggle room to claim non-compliance with this interpretation; thus, it is the safest route and the one I would suggest to my clients. However, there is a reasonable interpretation that the tenant should only have 3 days to pay as required by Florida Statute, but that the lawsuit for possession could not be filed until 30 days have lapsed. The Act is silent on, and thus could be argued does not affect, the 3-day period to pay prescribed by Florida Statute. Both interpretations have merit; it would be up to a court to decide.
The second issue with this section is that the “notice to vacate” is not subject to the terms of Subsection (b), the moratorium on evictions for non-payment. It would seem like common sense that the intent of Congress would be to only delay evictions for non-payment, thus the 30-day notice requirement would only apply to notices to vacate based upon non-payment. However, this is not explicitly stated, and I could just as easily see the vagueness of this section used as a defense to an eviction for some other lease violation or a holdover tenant eviction. Technically, all evictions require a notice, save those based on date-certain lease agreement holdovers. Florida requires a 7-day notice for lease violations, a notice 15 days prior to the end of a term for a non-renewal, and a 3-day notice for non-payment, which are all arguably “notices to vacate”. Thus, it could be argued that this section modifies all notices to vacate for all covered dwellings, which would almost double the time it takes to evict a tenant in breach of their lease.
The 335 page CARES Act was drafted and passed very hastily and it could be that no one considered the impact such a broad federal notice requirement would have on the specific eviction notice requirements that vary among all fifty states. It is also silent as to an expiration of the thirty-day notice requirement, which, as written, would apply to all covered dwellings until a law is passed terminating the requirement.
The main issue is the interplay between non-compliance with the Federal Act and the attorney fee provision in Florida’s Landlord Tenant Act. If a landlord misinterprets the interplay between the Federal law and the State law resulting in losing an eviction case, that landlord may be on the hook for the tenant’s attorney fees. Without guidance clarifying exactly how, or if, the Act applies to “Notices to Vacate” for breaches other than non-payment and whether the Act extends the entire “3-day notice to pay or vacate” to 30 days or just the “vacate” portion of the notice, as attorneys we have to advise our clients to take the safest route to protect themselves from liability, thus extending the 30-day requirement to all notice periods for “covered dwellings” until further legislation says otherwise.