Phil Querin: U.S Supreme Court Has Stricken Down Latest CDC Moratorium - Where Do Oregon Landlords Go From Here - Frequently Asked Questions

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Phillip C. Querin, MHCO Legal Counsel

 

Introduction. On August 26, 2021 the U.S. Supreme Court struck down the CDC’s[1] current eviction moratorium, ruling that the government agency had exceeded its authority. So, while Oregon landlords are now free of any federal eviction prohibitions, they are still subject to our state laws. These include:

  •  SB 278 which provides a 60-day “pause” in the eviction process[2] (90-days in Multnomah County) for tenants seeking rental assistance; and,
  • The recent order by Oregon’s Chief Justice, CJO 21-031, which extends the timeframe for eviction hearings after filing of the complaint.[3]

 

BackgroundIn March of 2020, Congress passed a temporary eviction moratorium with the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). This moratorium only applied to properties being financed with federally-backed loans (e.g. Fannie Mae, Freddie Mac, USDA, etc.) or were accepting federal assistance. Upon the expiration of this initial moratorium in July 2020, the CDC stepped in, with no prior Congressional authorization, and imposed its own eviction moratorium, followed by a series of extensions through 2020 and 2021 as the Covid pandemic evolved. 

 

In May 2021, the CDC’s Moratorium and extensions were challenged in federal court. While the court ruled that the CDC had exceed its authority, it suspended (i.e. “stayed”) the judgment pending appeal to the U.S. Supreme Court. The case was heard in June, 2021, and the high court agreed that the CDC had exceeded its authority; but it nevertheless declined to vacate the stay because the moratorium was scheduled to expire shortly, on July 31, 2021.[4]

 

On August 3, 2021 the CDC – still with no Congressional authority – issued a new eviction moratorium, this time basing it on the expanding Delta variant emergency.[5] Unlike the original moratorium which applied broadly to the entire country, the CDC’s new moratorium applied only to “US counties experiencing substantial and high levels of community transmission” of Covid. While in theory this was limiting, in reality, almost every county in the US is currently experiencing “substantial and high levels of community transmission”. Like those before it, this moratorium only applied in the absence of state or local protections that were equal to or more stringent than the CDC’s prohibition. The new moratorium was set to expire on October 3, 2021.

Once again, the new eviction moratorium was challenged in the federal courts and eventually made its way up to the Supreme Court. This time the Court, in a 6-3 decision, ruled that the CDC had exceeded its authority and therefore the moratorium was invalid. In their words, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” So far, Congress has declined to do so.

 

Where Does This Leave Oregon Landlords?  Regardless of the Supreme Court’s rejection of the CDC’s latest moratorium, Oregon landlords are still subject to eviction restrictions and temporary eviction delays imposed by SB 278, Ordinance 1296 (Multnomah County only), and CJO 21-031.[6]

 

A Review Of Where We Are Today.

 

  • Nonpayment Debt Remaining from the Oregon Eviction Moratorium (HB 4213/4401): Tenants may not be evicted for a failure to pay rental debt accrued between April 1, 2020 and June 30, 2021. Per Senate Bill 282, tenants have until February 28, 2022 to pay off those rents, fees and charges without threat of eviction or accrual of additional late fees and penalties.[7]

 

  • Rents, Fees, and Charges after July 1, 2021: Tenants must begin paying their current rents, charges, and fees beginning on July 1, 2021 or risk eviction. If they are unable to do so, they may apply for rental assistance and provide their landlord with proof of application. Under SB 278, the proof of application gives the tenant an additional 60-day “pause” (or 90-days in Multnomah County per Ord. 1296) during which time a landlord is prohibited from either issuing a notice of termination or continuing a pending nonpayment of rent eviction. These 60-day or 90-day “safe harbor” provisions remain in effect until March 1, 2022.[8]

 

  • FED Timing Extensions: Once the 60-day or 90-day safe harbor window is closed under SB 278, if the tenant does not receive assistance or otherwise still cannot afford their rent, their landlord may proceed with the eviction process. As noted above, the Oregon Chief Justice’s Order 21-031 extends the normal timeline for First Appearances in  all FEDs and extends the window within which a trial may be scheduled.[9]

 

 

Frequently Asked Questions

 

Question: What if I already have a termination or eviction pending from July?

 

Answer: Though the Court’s rejection of the CDC’s new eviction moratorium is brand new, and it’s difficult to say how Oregon FED courts will address the issue (if at all), we do know two things:

 

  1. In order for a tenant to take advantage of the protections that were provided by the CDC’s moratorium they must have given their landlord a form (one created by the CDC, or a written document with equivalent information) declaring that they were a “covered person” as defined by their Order. To be a “covered person” the tenant needed to meet both personal qualifications (income, location) and hardship qualifications (loss of income, extreme medical expenses).[10] In the absence of this form, or its equivalent, a tenant is not covered by the CDC’s order.

 

  1. The eviction moratorium was meant to prevent the eviction only. As stated in their own guidance “[the CDC’s new eviction moratorium is not] intended to prevent landlords from starting eviction proceedings, provided that the actual physical removal of a covered person for nonpayment of rent does NOT take place during the period of the Order.”[11]

 

So, if there is a pending termination or FED from July 2021, it seems that the only real prohibition on an actual eviction would be: (a) If the tenant provided a document demonstrating that he/she was  a covered person; AND (b) The actual eviction occurred between August 3, 2021 (when the CDC’s moratorium went into place) and August 26, 2021 (when the Supreme Court ruled that it was invalid). 

However, all Oregon landlords must follow the 60-day safe harbor laws (or 90-days in Multnomah County) laid out in SB 278 and Ordinance 1296 regardless of the status of the CDC’s now-invalidated moratorium. For that process, see MHCO’s Guidance and Flowchart.

 

Question: What if I started an eviction in July and my tenant has not paid August rent?

 

Answer: This depends on whether your tenant notified you of their application for rental assistance under SB 278. If they have not done so, then you may continue with the FED proceeding and obtain a judgment of restitution in the ordinary course. Otherwise, you are subject to the “pause” rules of SB 278 or Multnomah County’s Ordinance 1296 before re-issuing the termination notice and proceeding with the FED. If your case has already reached the First Appearance stage, the court will reset the hearing and/or trial to the appropriate time. Remember: A tenant may provide proof of application at any time up to the First Appearance

 

In the ideal situation your tenant’s application for rental assistance will result in aid from the State of Oregon, you will be recompensed for the unpaid rent, and the eviction will become unnecessary. 

 

Question: What about for-cause evictions?

 

Answer: Evictions for cause are not limited by any of the new Oregon legislation, nor were they limited by the CDC eviction moratorium. As discussed above, the FED process for for-cause evictions is modified by the Oregon Chief Justice’s Order 21-031, which remains in effect until the State of Oregon is no longer operating under a State of Emergency or the CJO 21-031 is withdrawn.

 
  1. Center For Disease Control, https://www.cdc.gov/.

[2] Tenants need only demonstrate that they have applied for rental assistance in order to receive the 60-day pause (or 90 days if in Multnomah County). Upon receipt of the tenant’s supporting documentation the landlord may not, for the next 60 days (or 90 days in Multnomah County): (a) Deliver a termination notice for nonpayment, or (b) Initiate or continue an action for possession (i.e., an FED) based upon a termination notice for nonpayment.

[3] The Chief Justice’s Order extends the usual 7-day window for scheduling the First Appearance in nonpayment of rent evictions to at least 21 days after the filing of the FED complaint. First appearances for all other evictions will be scheduled within 14 days of filing.

[4]  See, discussion on the Court’s thinking here: https://www.scotusblog.com/2021/06/divided-court-leaves-eviction-ban-in-place/

[6] See Footnotes 2 and 3 above.

[7] See MHCO Guidance on SB 282 for more detailed information:  MHCO.ORG “Community Updates”, “New MHCO Non Payment of Rent Forms Effective July 1, 2021” (posted 7-13-21) and “Phil Querin Article – New Rules for Non Payment of Rent Evictions – SB 278 – July 1st It’s the Law (posted 6-30-21).

[8] See MHCO Guidance on SB 278 for more detailed information: MHCO.ORG “Community Updates”, “New MHCO Non Payment of Rent Forms Effective July 1, 2021” (posted 7-13-21 and and “Phil Querin Article – New Rules for Non Payment of Rent Evictions – SB 278 – July 1st It’s the Law (posted 6-30-21).

 

[9] See MHCO Guidance on CJO 21-031 for more detailed information: MHCO.ORG, “Phil Querin Q&A”, “Oregon Chief Justice Order Extending Certain Time Periods For FEDs” (9-22-2021)

[10] To be a “covered person” a tenant must declare under penalty of perjury:

(1) The individual has used best efforts to obtain all available government assistance for rent or housing;

(2) The individual either (i) earned no more than $99,000 (or $198,000 if filing jointly) in Calendar Year 2020, or expects to earn no more than $99,000 in annual income for Calendar Year 2021 (or no more than $198,000 if filing a joint tax return) (ii) was not required to report any income in 2020 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check);

(3) The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;5

(4) The individual is using 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;

(5) Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options; and

(6) The individual resides in a U.S. county experiencing substantial or high rates of community transmission levels of SARS-CoV-2 as defined by CDC.

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