The Centers for Disease Control and Prevention (CDC) issued an agency order prohibiting residential landlords nationwide from evicting certain tenants. The eviction ban was originally set to expire on December 31, 2020, but the CDC has extended the order until at least March 31, 2021. Tenants who meet the criteria listed in the order are eligible for protection from eviction. The ban does not apply automatically to qualified tenants—rather, they must claim protection by signing a declaration of eligibility for the ban, and provide the signed declaration to their landlord.
Since the CDC’s eviction ban went into effect on September 4, 2020, landlords and tenants have expressed a lot of confusion about the details of the order and its required tenant declaration. And it’s not just landlords and tenants who are confused: In some of the worst cases, judges have misinterpreted the CDC’s order, resulting in the wrongful eviction of tenants who qualified for protection.
On October 9, 2020 the CDC and other federal agencies issued a guidance document addressing some of the most frequently asked questions about the ban. While this document clarifies some points about the Order, it also raises more questions, and leaves many of the details on how the Order is to be carried out up to individual states and courts.
Nolo offers a free, downloadable declaration that tenants can use to claim protection under the CDC’s eviction ban. The declaration form comes with a detailed set of instructions on how to determine whether you’re eligible for protection, how to fill out the form, and how to get it to your landlord. We’re also keeping track of—and answering below—some of the questions that are emerging as tenants, landlords, and courts begin to navigate the CDC’s eviction ban.
No. The CDC’s order requires tenants to sign the declaration under penalty of perjury, pursuant to 28 United States Code section 1746 (Section 1746). Section 1746 does not require notarization, and states that the signer meets the requirements of an unsworn declaration under penalty of perjury when the declaration includes something similar to this statement: “I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on (date). (Signature).” The CDC Eviction Ban Declaration offered by Nolo contains language that complies with this requirement.
The CDC’s order does not provide a specific time when tenants should provide the declaration to their landlord. You can choose to give the declaration to your landlord as soon as you know you meet the CDC’s requirements for protection from eviction, or you can provide it at a later time. For example, some tenants might decide to give their landlord the declaration only after they have received a termination notice (notice to quit). If your landlord started to evict you before the CDC's ban went into effect (September 4, 2020), but the eviction has not been completed, it is not too late to claim protection under the ban—any tenant who qualifies for coverage under the ban and is still living in their rental is entitled to protection from eviction.
Before deciding on when you will give the declaration to your landlord, check to see whether any local or state agencies or legal aid might be able to give you advice. Here’s why: Some forms of government assistance for rent or housing are not be available until after you have received termination or eviction papers. For example, Michigan Legal Help advises renters to apply for assistance after receiving a termination or eviction notice. If you receive assistance, you might be able to apply it to the rent you owe and avoid eviction altogether. But if the aid you receive isn’t enough to prevent eviction or you are turned down, you can confidently say, in your declaration, that you have met the CDC’s requirement that you have “used best efforts to obtain all available government assistance for rent or housing.”
Absent a clear recommendation like the one described above, the safest course is likely to use your best judgment. Keep track of your efforts to obtain rent assistance (as well as the outcome of those efforts). If you’ve applied to a few agencies and researched your other options to no avail, you’ve probably met the CDC’s requirement. Ultimately, though, the determination of whether you’ve met the CDC’s requirements will be up to the local judge who presides over your eviction case.
If you have already been evicted from your rental, it is too late to claim protection under the CDC's eviction ban.
Instructions that accompany the Nolo CDC Eviction Ban Declaration form tell tenants to make a copy of their filled-out form that they will keep for themselves. Tenants should ask the landlord to sign both copies. If the landlord refuses to sign your copy, you can explain the refusal on the signature line. If your landlord refuses to even accept your declaration, you can likewise explain the circumstances on the form. If you suspect that the landlord will take this approach, bring someone with you who can testify about the landlord’s response if need be. You can also send the form “return receipt requested,” which will give you proof that the envelope was delivered to the addressee.
Yes. As stated above, the CDC’s order does not give a deadline by which tenants must provide the declaration to their landlords. If your landlord started to evict you before the CDC's ban went into effect (September 4, 2020), but the eviction has not been completed, it is not too late to claim protection under the ban—any tenant who qualifies for coverage under the ban and is still living in their rental is entitled to protection from eviction.
If you’re eligible for the ban’s protections and have been served with eviction papers, get the signed declaration to your landlord as soon as possible.
Once you’ve delivered the declaration to your landlord, provide a copy of the declaration (along with proof of delivery to your landlord) to the court. Call the court clerk’s office and ask whether you should file a copy of the declaration before your court date. If you do not have time to do this before your hearing, bring your documents with you to the hearing (make a copy for yourself to keep) and make sure that you present them to the court.
If you have already been evicted from your rental, it is too late to claim protection under the CDC's eviction ban.
Tenants do not have to provide their landlords with any documentation or proof when they deliver the signed declaration.
However, tenants might have to provide proof that they meet the CDC’s requirements if their landlord challenges the declaration in court. If a landlord proceeds with an eviction suit despite receiving the signed declaration, the court might require the tenant to provide supporting documentation that the CDC ban applies—for example, copies of applications to agencies for rent assistance or copies of the tenant’s 2019 or 2020 income tax returns.
All tenants who are seeking eviction protection should collect and retain copies of any documentation they can gather in support of their meeting the CDC’s requirements.
No. The CDC’s ban applies to anyone who expects to earn as an individual no more than $99,000 in annual income for calendar year 2021. If tenants are filing a joint income tax return, the ban applies to those who expect to earn no more than $198,000 in annual income for calendar year 2021. This means that people who are still employed can take advantage of the ban, so long as their income does not exceed these limits.
Yes. To qualify for protection under the CDC’s eviction ban, tenants must have “used best efforts to obtain all available government assistance for rent or housing.” “Available government assistance” means any governmental rental or housing payment benefits that are available to the individual or any household member. Note that the CDC does not require tenants to apply for assistance from private sources, such as nonprofits, churches, or other charities.
This “best efforts” requirement is very vague, and is likely to be a point of argument between landlords and tenants. It’s nearly impossible for any tenant to find out about “all available” assistance. For example, people who do not have reliable Internet access or who are working full time will find it very challenging to research all the available options. So what constitutes “best efforts” for one person might be different from another.
Tenants should research their options in whatever way they believe will yield results. They can search the Internet, call local legal aid offices, and contact their city and state governments to find available resources. Lawyers.com has a comprehensive list of available federal, state, and local coronavirus assistance resources that can serve as a good starting point. Another good starting point is to visit your state’s official COVID-19 resource website—every state has one, and you can find it by visiting the Lawyers.com article and clicking on the name of your state.
Then, after finding some possible options, tenants should inquire about their eligibility for the resource. Keep a written record of all inquiries, including when you made the inquiry, whom you contacted, and the outcome of the inquiry. For example, a tenant might write, “Sept. 10, 2020, called the Colorado Division of Housing’s emergency rental assistance hotline (123-456-7890). Spoke with Cindy, was informed that there were no funds available at this time.” If your landlord challenges your right to eviction protection, the judge might require you to produce evidence that you used your best efforts. Your log of inquiries will be that evidence.
The requirement states that tenants must explore benefits that are not only available to the individual, but also to any household member. The CDC has not clarified what this means, but it could mean that adult tenants must use best efforts to obtain rent or housing assistance that is specifically meant for children if children reside at the rental (if any such assistance actually exists).
In its October 9, 2020 FAQ document, the CDC suggests turning to the following sources for rental assistance:
Probably not. The CDC’s agency order states: “Each adult listed on the lease, rental agreement, or housing contract should likewise complete and provide a declaration.” (See Federal Register Vol. 85, No. 173, p. 55292.) Every adult that lives in the rental that is seeking eviction protection should sign a CDC Eviction Ban Declaration and provide a copy to the landlord.
The CDC's October 9, 2020 FAQ document states that "In certain circumstances, such as individuals filing a joint tax return..." it might be appropriate for one tenant to provide a declaration on behalf of another adult tenant who lives in the rental. However, this statement is not binding, and doesn't provide much guidance. For those reasons, and to ensure that each tenant is protected, we strongly suggest that each tenant provide the landlord with a separate declaration.
When two or more people rent a residence together, it’s up to the roommates to decide how the rent will be shared. As far as the landlord is concerned, the landlord can expect the entire rent from any of the tenants. So, for example, if your roommate doesn’t pay her share for a month, you’ll have to make it up and pay the entire amount to the landlord. How you and she deal with her lapse isn’t the landlord’s concern. This universally applicable principle is known as “joint and several liability.” It applies to your rental agreement even if your written lease does not include a joint and several liability clause (most preprinted leases include it).
If your roommate qualifies for eviction protection (but you do not), a declaration from her that’s delivered to the landlord probably won’t save your tenancy. That’s because, as just explained, the landlord can look to you for the entire rent. If you can’t supply it, chances are the eviction will proceed. But because this could result in two tenants becoming homeless or living in unsafe crowded conditions, creative tenants’ lawyers are sure to advance arguments to the contrary—that somehow the CDC’s order supersedes the generally applicable principle of joint and several liability.
Now, suppose you make-up for your roommate’s share of the rent for several months. By paying her share, you’ve essentially loaned her a lot of money. Unless she voluntarily repays it, you’ll need to sue her in small claims court. For this reason, consider documenting your loan, which you can do with a simple promissory note (widely available on the Internet).
Yes, the CDC’s order does not differentiate between written and oral leases (oral leases are valid and enforceable for up to one year in most states). In fact, the order explicitly refers to “residents” as well as tenants, by describing the order “that tenants, lessees, or residents of residential properties who are covered … may use.” (See Federal Register Vol. 85, No. 173, pgs. 55292 and 55297, emphasis added.) This arguably means that people living in the rental who are not formally part of the lease (oral or written), and even those whom the landlord does not know about (usually described as unauthorized occupants), can claim protection under the order.
You’ve probably heard the old saying, “Anyone can file a lawsuit.” Unless the clerk’s office is closed, if the plaintiff’s papers conform with filing requirements, the clerk will accept them, no matter how bogus the claim. Outlandish lawsuits will be quickly tossed out by the judge, however, sometimes with monetary sanctions for having wasted the court’s (and defendant’s) time.
The CDC's order does not prevent landlords from starting eviction proceedings—it only prohibits landlords from actually physically evicting covered tenants while the order is in effect. Nor does the CDC’s order direct the hundreds of clerk’s offices around the country to examine eviction lawsuits as they are presented for filing and check for CDC declarations. The order has left it up to each state or court to decide how to handle eviction suits.
In some states, eviction lawsuits will proceed to court regardless of whether a tenant has given the landlord a declaration. The tenant will have to answer and defend by claiming protected status under the order. What happens next depends on how the court is handling the CDC’s ban: For example, the court could put the case on hold or enter a judgment but postpone the physical eviction until after the ban expires.
In other states, such as New Hampshire, courts are requiring landlords to file an affidavit documenting their compliance with the CDC’s order. This means that, in order to file or proceed with an eviction lawsuit, a landlord is obligated to notify the court when a tenant provides a declaration. When a tenant provides a declaration while the eviction suit is pending, the court will put the suit on hold—even after the court has issued a writ of possession.
Yes, landlords can challenge the validity of the declaration by filing an eviction lawsuit. The landlord might challenge the tenant’s right to enjoy protection, by arguing, for example, that the tenant’s income is too high, or that the tenant didn’t make “best efforts” to obtain rental assistance from the government. The judge will decide these issues, allowing the eviction to proceed or not.
When tenants sign the CDC Eviction Ban Declaration, they do so under penalty of perjury. Tenants who lie about their eligibility for protection, or otherwise misuse the ban’s protection, could face fines or jail. The CDC's October 9, 2020 FAQ document specifically states that tenants could be subject to criminal penalties under 18 United States Code section 1621 (the federal perjury statute) or other applicable criminal law.
Landlords who violate the order might also be subject to fines and jail time. The CDC’s order states that landlords, owners of residential properties, or other people with a legal right to pursue an eviction (such as a corporation), “shall not evict any covered person from any residential property in any jurisdiction to which this Order applies during the effective period of the Order.” The order defines an “eviction” as “any action by a landlord, owner of a residential property, or other person with a legal right to pursue eviction or a possessory action, to remove or cause the removal of a covered person from a residential property.” The order leaves the determination of whether a landlord has violated the order to the courts.
Individual landlords who violate the order could be subject to:
An organization (such as a corporation, LLC, or real estate investment trust, or REIT) that violates the order could be subject to:
(See Federal Register Vol. 85, No. 173, p. 55296.)
Most of the time, a person who loses a civil lawsuit can file an appeal. The CDC's order does not establish an appeal process; tenants must use their state's appeal process to challenge the eviction. You can appeal the judge’s decision by filing the necessary notice with the appellate court. If possible, get some professional help. The appellate process is tricky, even for lawyers.
The most pressing issue, however, will be whether you can get the trial judge to “stay,” or postpone, the actual eviction while your case makes its way through the appellate court. It’s rare for judges to issue stays in nonpayment situations, but again, given the stakes (possible homelessness or unsafe crowded living conditions), you might be successful in obtaining a stay.
In its October 9, 2020 FAQ document, the CDC recommends that tenants who want to appeal their eviction consult with a private lawyer or seek help from a legal aid program. For more information about legal aid, contact Legal Services Corporation. If you are a senior citizen, you can also use the ACL Elder Care Locator to search for legal assistance.
It depends. The order requires tenants to state in their declaration that they are using their 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.”
This means that if your individual circumstances make it impossible to pay any rent, you can stop paying rent. If your circumstances allow you to make partial rent payments without pinching your ability to pay for other essentials such as food, medicine, and transportation for work, you must do so.
However, your landlord is still entitled to full rent payments, as well as any late fees or charges you agreed to in your lease or rental agreement. This means that when the eviction ban ends (March 31, 2021), your landlord can not only evict you, but also sue you for the entire amount you owe—even if you’ve been making partial payments. All tenants should do their best to pay as much of the rent as they can, to avoid owing their landlords an impossible sum when the eviction ban expires.
Yes. The CDC’s order states that landlords can still evict tenants for the following reasons:
(See Federal Register Vol. 85, No. 173, p. 55294.)
Unfortunately for landlords, the federal government did nothing to make funds available to landlords who are not receiving rent. Landlords who rely on rent to make mortgage payments, however, might qualify for mortgage forbearance. Landlords who are experiencing financial hardships should contact their mortgage lenders directly and ask whether the lender is providing any mortgage relief.
Also, some states have temporarily banned foreclosures. While this might delay a landlord’s loss of the property, it does not solve the problem that the landlord will still be on the hook for payments, late fees, interest, and any other lawful charges assessed by the lender.
Otherwise, owners who rely on rent to cover everyday living expenses are out of luck.