– September 3, 2020

By Kate Goodrich

On Tuesday, September 1, the Trump administration announced an order, put forward by the Centers for Disease Control and Prevention, that claims to suspend residential evictions through the end of the year for many tenants who have been affected by financial hardships caused by the coronavirus pandemic. This eviction protection is broader and will include protections for more tenants than the previous eviction moratorium under the CARES Act, which expired in July.

It is important to note that this order does not relieve tenants of their obligation to pay rent, and does not preclude charging or collecting fees, penalties, or interest as a result of the failure to pay rent on a timely basis. The unpaid rent may be required by the housing provider in full once the temporary eviction moratorium expires on December 31, 2020. However, this order will halt evictions that are already in process, and prevent any further eviction actions being brought forward until the end of year.

To receive the temporary eviction protection, tenants must certify under penalty of perjury in a self-assessment declaration that they meet the following five-pronged test:

• The tenant needs to have used his or her “best efforts” to obtain any and all forms of government rental assistance.
• The tenant must expect to earn no more than $99,000 in 2020, or $198,000 if they are married and filing a joint tax return. (If the tenant does not qualify in that way, he or she could still be eligible if the tenant did not need to report any income at all to the federal government in 2019 or if they received a stimulus check this year.)
• The tenant must be experiencing a “substantial” loss of household income, a layoff or “extraordinary” out-of-pocket medical expenses. (The order defines this as “any unreimbursed expense likely to exceed 7.5 percent of one’s adjusted gross income for the year.”)
• The tenant must be making his or her best efforts to make “timely” partial payments that are as close to the full amount due as “circumstances may permit,” taking into account other nondiscretionary expenses.
• The eviction would need to “likely” lead to either homelessness or result in the tenant having to move to a place where he or she could get sick from being close to others.

Although the CDC order does not specifically afford landlords with a procedural means to challenge a tenant’s self-assessment that they are a “covered person” under the order, ensuing litigation may provide some judicial guidance as to the scope of that term. Litigation may also result in judicial guidance as to the CDC’s authority to issue this order.

The order provides that it 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 protection than the” order does.  For information about state and local orders regarding residential evictions in Texas since the outset of the COVID-19 crisis, see previous updates from Jackson Walker below.

This order is effective from the date it is published in the federal register, which is scheduled for September 4, 2020, through December 31, 2020, and could possibly be extended.

Tenants’ self-assessment forms will be available on the CDC website once the order is published in the Federal Register.

– August 24, 2020

By Kate Goodrich

The Texas Supreme Court has extended the moratorium on residential eviction procedures for CARES Act applicable residences until September 30, 2020, offering a few more weeks of relief to certain renters as the economic fallout of the coronavirus drags on in to the fall.

In its 24th emergency order, the Texas Supreme Court prolonged the limitations on residential eviction proceedings filed from March 27, 2020, through September 30, 2020. As in the Court’s 20th emergency order, issued on July 21, 2020, landlords filing an eviction action must file a sworn petition containing “a description of the facts and grounds for eviction” required by Texas Rule of Civil Procedure 510.3(a)(2) that includes:

1. whether the premises is a “covered dwelling” subject to Section 4024 of the CARES Act;
2. whether the plaintiff is a “multifamily borrower” under forbearance subject to Section 4023 of the CARES Act; and
3. whether the landlord has provided the tenant with 30 days’ notice to vacate under Sections 4024(c) and 4023(e) of the CARES Act.

A judge continues to have the authority under Texas Rule of Civil Procedure 500.6 to develop the facts of the case, including whether or not the premises is a “covered dwelling” and the plaintiff is a “multifamily borrower” under forbearance subject to Sections 4024 and 4023 of the CARES Act, respectively.

The emergency order is effective immediately and will expire on September 30, unless it is further extended by the Court.

– August 11, 2020

By Kate Goodrich & Eve Searls

In response to the COVID-19 pandemic, the federal government, the state of Texas, and local jurisdictions have adopted various protections for tenants to help them stay in their homes. Because those protections generally focus on residential tenants, this article is limited to residential landlord-tenant relationships and does not address commercial tenancies.

Federal Government

The 120-day moratorium on evictions that was included in the federal CARES Act expired on Friday, July 24. The current Senate Republican package for the next round of coronavirus relief does not reinstate the moratorium, though some Democrats have indicated they will try to negotiate for that tenant protection.

Landlords covered under the moratorium must still provide tenants with a 30-day notice before proceeding with an eviction action.

The following properties are covered by the CARES Act protections:

1. Low Income Housing Tax Credit properties;
2. single-family and multifamily properties backed by federal loans (Fannie Mae/Freddie Mac/USDA/FHA/VA) (Section 4024 of the Act); and
3. most federally-subsidized rental housing properties (e.g., public housing, Section 8 vouchers).

In addition, on June 17, the Federal Housing Finance Agency extended its own eviction moratorium until at least August 31. The moratorium applies to properties financed by Fannie Mae and Freddie Mac.

On August 8, President Trump issued an Executive Order regarding the prevention of foreclosures and evictions in the wake of the pandemic, in response to the end of the CARES Act moratorium and the stalled Senate negotiations over a replacement bill. The order declines to extend the moratorium, but directs federal housing agencies to assist renters and homeowners, and directs the Department of Health and Human Services and the Centers for Disease Control and Prevention to consider whether an additional eviction moratorium is reasonably necessary to prevent the spread of COVID-19.

State Government

The Texas Supreme Court halted residential eviction proceedings statewide in March, but that moratorium has since expired. Statewide, eviction proceedings were allowed to resume on May 19, 2020, with the exception of some local jurisdictions which have implemented their own moratoriums or temporary reprieves. As those local limits expire, courts operating at reduced capacity to promote social distancing are expected to start attempting to clear a backlog of eviction cases.

The Texas Supreme Court issued an order on July 21 requiring eviction petitions to include a statement regarding whether, pursuant to the CARES Act:

1. The premises is a “covered dwelling”;
2. The plaintiff landlord is a “multifamily borrower” in a forbearance agreement with a federally-backed lender; and
3. The plaintiff landlord has provided the defendant tenant with the required 30 days’ notice to vacate.

This order expires August 24.

Generally speaking, Texas law does not afford tenants an automatic right to catch up on past-due rent, or what is known as the right to cure default. During the pandemic, the various state and local moratoriums did not forgive past-due rent, and tenants are generally still responsible for rent they have not paid unless their lease provides otherwise. Only a few cities have established grace periods purport to allow tenants the right to cure. In parts of the state without those grace periods, the Texas Property Code does not prohibit landlords from beginning the eviction process.

Local Governments in Texas

On August 7, 2020, Texas Attorney General Ken Paxton issued an opinion that cities and counties cannot stop evictions under their local disaster declarations. Under Texas law, Paxton’s opinion is nonbinding and does not have any immediate impact on local eviction orders, but could be raised in future litigation centered on the enforceability of those local orders.

Right to cure/grace period to catch up on rent

• Austin (May 7, 2020): The Austin City Council extended its ordinance giving tenants 60 days to catch up on late rent before a landlord can proceed with an eviction. The ordinance now expires August 24th.
• Dallas (April 22, 2020): Although the Dallas County moratorium has ended, the City of Dallas eviction ordinance has not expired. The Dallas COVID-19 eviction ordinance provides tenants 60 days to prove hardship because of the pandemic and pay outstanding rent. It will continue until the State of Disaster due to COVID is terminated by the governor or the Dallas mayor terminates the local disaster declaration, whichever comes later.
• San Marcos (April 7, 2020): The San Marcos City Council adopted an ordinance giving tenants a 90-day right to cure any delinquency as a result of the pandemic. Landlords must provide tenants with a Notice of Proposed Eviction giving tenants at least 90 days to catch up on any late rent payments before proceeding with a notice to vacate. The ordinance expires upon the expiration of the city’s declaration disaster.

Rent caps/Rent control

• El Paso County (March 17, 2020): The El Paso County Judge issued an Emergency Order capping rents at the level charged on March 13, 2020 (along with price controls on a long list of consumer products and services). This protection will remain in effect until the state of disaster is terminated.

Local policies governing eviction notices and hearings:

• City of Austin (July 24, 2020): Mayor Steve Adler issued Order No. 20200724 extending protections for residential tenants in response to the COVID-19 pandemic. The moratorium on evictions is now extended through September 30, 2020. Mayor Adler’s order prohibits the issuance of Notices to Vacate and the removal of property of a tenant by a property owner. This order became effective immediately.
• Harris County (July 11, 2020): JP courts in Precinct 7 have suspended hearings on new eviction filings until August 24, but are holding hearings on cases filed before the pandemic.
  • Note: Houston and Harris County have created a joint Housing Stability Task Force, which was announced in June, and the City of Houston is adding $20 million to its rent relief program ($15 million from federal funds, $5 million from private donors). If a landlord receives any funding from this fund, then the landlord is not permitted to evict any tenants through September.
• San Antonio (June 25, 2020): The San Antonio City Council adopted an ordinance requiring landlords to send tenants a notice of tenants’ rights whenever they send a notice to vacate. The landlord must provide a copy of the notice created by the city. The notice includes information on housing assistance resources, outlines the eviction process, and provides a link to a self-help information packet with advocacy information. The ordinance applies to all residential landlords in the city limits.
• Travis County (July 22, 2020): The Travis County Justices of the Peace issued an order postponing all eviction hearings until after September 30, 2020, as wells as suspending issuance of writs of possession, except for instances involving imminent threat of physical harm or criminal activity.

Related Resources:

• JW Coronavirus Insights & Resources microsite »
• JW Fast Takes Podcasts & Webinars »

Please note: This article and any resources presented on the JW Coronavirus Insights & Resources site are for informational purposes only, do not constitute legal or medical advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Jackson Walker. The facts and results of each case will vary, and no particular result can be guaranteed.