Phil Querin: COVID, HB 2314 and the CDC’s Recent Order

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Phil Querin

 

In the continuing fight to slow the spread of COVID, the White House has just announced an Order barring nonpayment of rent evictions against most tenants through December 31, 2020. 

It has been issued by the Centers for Disease Control and Prevention (“CDC”). The text can be found here.  

 

This new moratorium is just one of many throughout the country. The federal government passed the CARES Act, which was intended to protect renters in apartments and single-family homes financed with a federally backed mortgage (e.g. Fannie and Freddie, etc.). It has since expired, which, in part, is why the CDC Order was enacted. 

 

However, the CDC order is much broader than the CARES Act, and applies to all renters of residential housing.[1] However, to obtain this protection, tenants will have to attest, under oath, to a substantial loss of household income; the inability to pay full rent; to having exercised their best efforts to obtain all available government assistance for rent or housing; that eviction would require them to live in close quarters with others; and attesting that an eviction would likely leave them homeless or otherwise, etc.

 

 

Technically, this order does not become law until it is published in the Federal Register this Friday, September 4. Until then, and possibly thereafter, lawyers and others will have some time to figure out how it applies.

 

However, in Oregon, there may be a little more time to figure it out. I say this because the CDC order expressly states:

 

This Order does not apply in any State, local, territorial, or tribal area with a moratorium on residential evictions that provides the same or greater level of public-health protectionthan the requirements listed in this Order.

 

***

 

In accordance with 42 U.S.C. 264(e), this Order does not preclude State, local, territorial, and tribal authorities from imposing additional requirements that provide greater public-health protection and are more restrictivethan the requirements in this Order. (Emphasis added.)

 

I read this text to mean that the Order does not “preempt” or “supersede” state and local laws that are more restrictive. Oregon’s HB 4213 may be exactly the type of law that is not preempted by the CDC Order, assuming that one interprets it as more restrictive 

 

Of course, the big difference between the CDC’s Order and Oregon’s HB 4213 is that the former runs through December 31, 2020, while the protections against a nonpayment of rent evictions under HB 4213 expire on September 30, 2020 – unless it is extended, which seems likely.

 

Briefly, HB 4213 provides that alandlordmaynot,andmaynotthreatento:

  • Deliveranoticeofterminationofarentalagreementbasedonatenant’snonpayment balance; 
  • Initiate or continue a nonpayment of rent eviction basedonanoticeofterminationfornonpaymentdeliveredonorafterApril1,2020;
  • Takeanyactionthatwouldinterferewithatenant’spossessionoruseofadwelling unitbasedonatenant’snonpaymentbalance; 
  • Assessalatefeeoranyotherpenaltyonatenant’snonpayment;[2]or 
  • Reportatenant’snonpaymentbalanceasdelinquenttoanyconsumercreditreporting agency.

 

If a landlord may not issue a 72-hour or 144-hour notice of termination, which is required before filing for a nonpayment of rent eviction in Oregon – or engage in any of the other above-listed activities – it would seem to be more restrictive than the CDC Order. In other words, the Order may not be necessary for tenants to use.

 

So, for the time being, we may want to take a wait-and-see approach to the CDC Order, before requiring tenants to pre-qualify for protection by signing sworn statements under oath about all of the efforts they have taken to pay their rent. I, for one, am not sure a landlord should ask about their tenants’ private acts taken to pay the rent on time. It’s one thing to struggle to make ends meet, but quite another to publicly explain it to others.

 

In the meantime, perhaps we can first determine whether Oregon’s laws are sufficient. As we approach the end of September, we will see whether the protections afforded by SB 4213 are sufficient. 

 

Of course, this isn’t legal advice; readers should consult with their own attorneys for a formal opinion.

 

[1]Excepting American Samoa, which to date has no reported COVID cases, per the CDIC Order.

[2]The CDC Order states: “Nothing in this Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicablecontract.”

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