Trump administration favors landlords in guidance on eviction moratorium

The Trump administration has undercut COVID-19 eviction protections provided by the Centers for Disease Control and Prevention (CDC), by releasing guidance that heavily favors landlords. This change will give landlords new tools to push renters out and accelerate eviction proceedings for many renters in the midst of the pandemic.

For those not familiar with the current CDC eviction moratorium, which extends from September 4 through December 31 of this year, background information can be found here.

The Department of Justice (DOJ) and the CDC recently put together guidance, and the Department of Housing and Urban Development (HUD) was also preparing to give its own grantees guidance on how to respond to the CDC order. 

However, the DOJ and CDC asked HUD to delay publishing its own guidance and instead sign onto the FAQ document. The DOJ’s move to intervene in the drafting of the CDC moratorium FAQ followed lobbying of the White House by large landlord associations.

What does the FAQ say?

The FAQ makes two major changes to how the CDC eviction moratorium will work. First, although renters are protected from eviction until December 31, the FAQ says that landlords can still begin eviction filings and other steps to start the eviction process. This means that landlords can serve eviction notices now, even though renters can stay in their homes until December 31.

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This means that landlords can serve eviction notices now, even though renters can stay in their homes until December 31.

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Second, the FAQ allows landlords to challenge the truthfulness of the declarative statements from renters. This puts an unfair burden on tenants, and puts them at risk of criminal charges for perjury. It also runs counter to the CDC’s original order, which says that landlords are not supposed to take actions retaliating against tenants who are seeking eviction protection.

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It also runs counter to the CDC’s original order, which says that landlords are not supposed to take actions retaliating against tenants who are seeking eviction protection.

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The FAQ also states directly that landlords do not have an obligation to inform their residents of their rights under this moratorium. This will leave many renters in the dark about what they need to do to stay in their homes. Renters may not even be aware they have to submit a declaration to their landlords until they receive eviction notices.

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The FAQ also states directly that landlords do not have an obligation to inform their residents of their rights under this moratorium.

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Since HUD is participating in the FAQ, public housing authorities and other owners of federally backed affordable housing are covered by the order. It means that they also do not need to inform tenants about their rights under the CDC order. However, if a property benefits from taxpayer support, owners should have a responsibility to educate their tenants about the CDC eviction moratorium.

Why did the CDC favor landlords with the changes?

Landlords filed federal lawsuits in Ohio, Georgia and Tennessee to block the CDC eviction moratorium. The landlords in Georgia and Tennessee sought a restraining order or preliminary injunction against the CDC order while their cases were heard. The Ohio landlords sought a judgment that would invalidate CDC’s eviction moratorium order outright.

Eric Dunn of the National Housing Law Project (NHLP) said that landlords claim the CDC moratorium is an illegal government “taking.” This usually means the government has seized private property for public use without fair compensation. It can also mean when a government regulation limits the use of a property to such a degree that the owner gets no value from it. The constitution bars government takings without compensation.

Presenting at an October 5 National Low-Income Housing Coalition (NLIHC) webinar, Dunn also said that landlords argued that this taking violates their due process and rights of access to the courts. These arguments about takings have been used against a number of state and local eviction moratoria during the pandemic. So far, courts have rejected these arguments in all thirteen cases where they have been used.

Diane Yentel, President and CEO of NLIHC, provided an update about how these court cases led to publishing the FAQ. On an October 12 national call with housing advocates, she said the landlord associations in the Ohio case filed to have it dismissed last week. The landlord associations said that a brief filed by DOJ in the Georgia case had met their concerns.

The DOJ brief provided a new interpretation of how the CDC order should be enforced. DOJ’s interpretation of how to apply the CDC moratorium addressed many concerns that landlord associations had shared while lobbying the White House. The DOJ’s brief became the basis for the FAQ.

What does this mean for low-income renters?

The CDC’s eviction moratorium order clearly states that landlords cannot take any actions that result in eviction. Filing for eviction should not be allowed under the order because it is a necessary step in getting someone removed from a property.

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The CDC’s eviction moratorium order clearly states that landlords cannot take any actions that result in eviction.

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Even if eviction filings do not result in someone losing their home, they still leave a mark and make it harder for renters to find somewhere else to live. Just the threat of an eviction filing can push someone to move out rather than risk finding a new place to live.

And you have to ask, what landlord would file for an eviction in October when that tenant cannot be forced to leave until January? Allowing landlords to begin the eviction process early only gives them another threat to pressure tenants into leaving on their own rather than go to housing court.

If landlords can get the jump on starting eviction proceedings, the nation will see a wave of people losing their homes at the start of the new year. Under the CDC’s original order, landlords would not have been able to file eviction complaints until after December 31. At least that would give a new Congress time to extend the eviction moratorium or provide emergency rental assistance.

The FAQ mentions several times that renters must be truthful in their declarations to landlords or risk perjury. Allowing landlords to challenge tenant declarative statements in eviction court places a huge burden on low-income renters. Renters will need to have documentation to back up everything they certify to the landlord. This is even harder to do with so many offices closed or shifting hours due to the pandemic.

Allowing landlords to challenge the truthfulness of tenant declarations is very harmful to low-income renters. Perjury is a criminal charge, and if convicted can include jail time. This provides landlords with an even bigger threat to push tenants out before cases come to court.

The CDC eviction order already placed a burden on renters. Unless you give your landlord a self-certification that includes all the required statements, you are not protected from eviction. Now, even if you follow all the rules, you have to come to court with a mountain of paperwork so that you don’t end up charged with perjury. With these changes, the Trump administration has made it clear that they do not care about the millions of low-income renters who will lose their homes in the middle of a pandemic, as long as it is after the election.