The CDC Extends Eviction Moratorium Through October 3 in High Transmission Counties

On August 3, 2021, the CDC Director signed a new order reinstating the eviction moratorium to temporarily halt residential evictions in communities with substantial or high levels of community transmission of COVID. The Order took effect August 3, 2021, and will remain in effect through October 3, 2021, subject to revision based on the changing public health landscape.

There have been numerous legal challenges to the CDC moratorium, with some courts ruling the CDC order invalid.  A recent challenge made it all the way to the U.S. Supreme Court, which declined to vacate a stay on the order, so the order remained in effect.  However, one of the justices expressed an opinion that the order exceeded the CDC’s authority, and Congressional action was required to enact an eviction moratorium.  On Wednesday some of these same parties, including the Alabama Association of Realtors, filed a challenge to the new order.  As we have seen throughout the course of the pandemic, the legal and regulatory environment changes rapidly.  For now, assume the new CDC order is in effect, and continue to follow NAA, TAA and AAGD for updates. 

A few takeaways from this latest Order:

• The CDC is issuing a new order temporarily halting evictions in counties with heightened levels of community transmission in order to respond to recent, unexpected developments in the trajectory of the COVID pandemic, including the rise of the Delta variant. It is intended to target specific areas of the country where cases are rapidly increasing, which likely would be exacerbated by mass evictions.
• The Order applies in counties experiencing substantial and high levels of community transmission levels of COVID as defined by the CDC, as of August 3, 2021. If a county that is not covered by the Order as of August 3, 2021, later experiences substantial or high levels of community transmission while this Order is in effect, then the county will become subject to this Order as of the date the county begins experiencing substantial or high levels of community transmission. If a county that is covered by the Order no longer experiences substantial or high levels of community transmission for 14 consecutive days, then the Order will no longer apply in that county, unless and until the county again experiences substantial or high levels of community transmission while the Order is in effect.
• Similar to prior orders, the summary of the Order provides that an owner of residential property shall not evict any covered person from any residential property in any jurisdiction while the county is experiencing substantial or high levels of community transmission of COVID. The terms (such as “covered person” and “evict” or “eviction”) have not been changed.
• As before, a person becomes a “covered person” if the person provides a declaration to the owner. This Order reiterates that all declarations, regardless of form used, must be signed, and must include a statement that the resident understands that they could be liable for perjury for any false or misleading statements or omissions in the declaration.
• The Order continues to state that it does not preclude an owner from challenging the truthfulness of a resident’s declaration in court, as permitted under state or local law.
• The Order states that as long as the information in a previously signed declaration submitted under a previous order remains truthful and accurate, covered persons do not need to submit a new declaration under this Order.
• The Order continues to state that it does not relieve any individual of any obligation to pay rent or comply with any other obligation that the individual may have under a lease.
• The Order continues to state that it does not preclude evictions based on a resident: (i) engaging in criminal activity while on the premises; (ii) threatening the health or safety of other residents; (iii) damaging or posing an immediate and significant risk of damage to property; (iv) violating any applicable building code, health ordinance, or similar regulations relating to health and safety; or (v) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).
• This Order reiterates the criminal penalties associated with violating the Order. A person violating the Order may be subject to a fine of no more than $100,000 or one year in jail, or both, if the violation does not result in a death or a fine of no more than $250,000 or one year in jail, or both if the violation results in a death, or as otherwise provided by law. An organization violating the Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or a fine of no more than $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate criminal proceedings as appropriate seeking imposition of these criminal penalties.

How do I know if my county is considered to have substantial or high levels of community transmission?

Look on the COVID Data Tracker on CDC.gov. You can input Texas and the county in which your property is located to find out the level of community transmission in that county. As of August 3, 2021, the most populous counties in Texas were considered to have a high level of community transmission. This includes nearly every county in Texas, including all 11 counties in the AAGD service area.

What should you do if a resident provides a CDC declaration?

Although the Order itself does not preclude an owner from challenging the truthfulness of a resident’s declaration in court, as permitted under state or local law, most JPs in the DFW area are no longer hearing challenges to declarations, based on the expiration of the Texas Supreme Court Order which provided for this process. Most have allowed evictions, including service of writs of possession, to go forward. However, if you go forward without court consideration, you may have to defend yourself later against an allegation that you have violated the Order. If your JP will hear your challenge and rules that the resident is not a covered person under the Order, you should be able to obtain a writ with little risk.

As before, if you have not received a CDC declaration or your eviction is based on a nonmonetary default, you should be able to proceed with your eviction. 

If you receive a valid declaration, the Order prevents you from going forward with obtaining a writ until the expiration of the Order.