Emergency Rental Assistance Program (ERAP) and Extension of the CDC Halt to Temporary Evictions to Prevent Further COVID-19 Spread

Updated 4/1/2021

On September 4, 2020, the Centers for Disease Control and Prevention (CDC), issued an Order under Section 361 of the Public Health Service Act (PHSA) to temporarily halt residential evictions to prevent the further spread of COVID-19. The CDC Order was deemed to terminate by December 31, 2021; however, the December 27, 2020 Coronavirus Relief & Omnibus Agreement extended the moratorium until January 31, 2021. After an extension in January until March 31, the eviction moratorium is now extended until June 30, 2021. However, In Terkel v. CDC, a Texas District Court determined the CDC Order was unconstitutional. The Department of Justice field an appeal in Terkel. Since the DOJ appealed the Texas case, it would be wise for landlords to continue to operate as if the CDC Order is constitutional and in effect, especially outside of Texas. However, this does not prevent landlords from requesting an evidentiary hearing and contesting whether the tenant(s) met all the criteria in the CDC Declaration to obtain status as a covered person. If not, or if the tenant(s) did not serve a CDC Declaration on the landlord, then it appears the landlord can proceed with the eviction.

To invoke protection from the CDC Order, all tenants on the lease, rental agreement, or housing contract must execute the CDC Declaration and give notice to their landlord. The landlord is not required to notify the tenant(s) about the CDC Declaration.

Failure to execute the CDC Declaration by all tenants prohibits any potentially covered person from being protected from an eviction through the CDC Order if  solely for failure to pay rent.  A landlord can still evict a tenant for any other breach of the residential lease while the CDC order is in effect.

The CDC Declaration requires the tenant(s) to acknowledge under oath, with penalty of criminal perjury and subjecting themselves to civil penalties, several separate items. Declarations include:

• The tenant made their “best efforts” to obtain all available government assistance to rent or housing, and
• The tenant(s) are “unable to pay the full rent or make a full housing payment” because of substantial loss of income, loss of compensable work hours and wages, lay-offs, or extraordinary out-of-pocket expenses, such as medical expenses likely to exceed 7.5% of the tenant’s adjusted gross income for the year when the declaration is presented.

In KBW Investment Properties v. Azar in the Southern District of Ohio, the Court noted HHS and the CDC admitted the CDC Order does not prevent a landlord from seeking judicial review of a tenant’s right to remain on the landlord’s property. This includes the landlord seeking an evidentiary hearing to challenge the veracity of the tenant’s CDC Declaration, provided that no actual eviction occurs while the CDC Order remains in effect and applies to the tenant(s). This challenge could include efforts taken, if any, by the tenant to obtain governmental rent assistance. Private rent assistance such as from family, friends, co-workers, a bank, a credit card, etc. is not the same as governmental assistance.

In Missouri, there is more good news for tenants and landlords. On February 11, 2021, Governor Parson signed into law HB 16, which provides more than $324 million in funding for the Emergency Rental Assistance Program (ERAP). The ERAP was passed by Congress in December 2020 to make  funding available to state and local governments to assist households unable to pay rent because of COVID-19.

The ERAP includes up to 12 months of assistance for rental arrears, forward rental, and utilities.  Landlords and tenants are eligible to apply for assistance through the program. However, landlords do not have to apply for rental assistance or notify the tenant(s) about the CDC Declaration to request “covered” status and they can choose to file a rent and possession lawsuit. But if all of the tenants prepared the CDC Declaration asserting covered status and served it on the landlord, the landlord would be forced to request an evidentiary hearing to contest any or all Declarations made by each tenant in the CDC Declaration to proceed with the rent and possession case. If the evidence shows any tenant requesting protection from the CDC Order failed to comply with the CDC Declarations made under oath,  the rent and possession case, including eviction, can move forward since the tenant would not be a “covered” individual under the CDC Order and could be subject to criminal prosecution, since all CDC Declarations are signed under penalty of perjury.

Posted by Attorney Brian S. Weinstock. Weinstock concentrates on real estate and corporate transactional law, workers’ compensation, insurance defense, and other civil and commercial litigation. For businesses, he provides financial and legal analysis as well as operational strategies and ideas to manage risk.

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