CDC Issues Eviction Protection (Limited Applicability .. Useful for Furloughed Employees … Possible Legal Problems)

In a previous post, we warned ASA members that the “eviction moratorium” Executive Order would not apply to rent on commercial space.

Members should expect to see another round of media articles about “eviction moratoria” because the Center for Disease Control (CDC) is issuing a regulation forbidding eviction. This regulation is expected to be published Friday. It will likely NOT affect ASA member companies.

A class of persons from the ASA community who might be affected by this eviction moratorium are employees who’ve been furloughed due to Covid-19.

The CDC is expected to issue a regulation forbidding evictions when the tenant issues a written statement to the landlord making certain assertions.  A class of persons from the ASA community who might be affected by this eviction moratorium are employees who’ve been furloughed due to Covid-19.

Once again, this moratorium does not apply to  commercial space (it only applies to residential evictions).  It will only apply when the tenant provides a written statement to the landlord , under penalty of perjury, these five facts:

  • The tenant has used best efforts to obtain all available government assistance for rent or housing;
  • The tenant either:
    • Expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), or
    • In 2019 was not required to report income to the IRS, or
    • Received a CARES Act stimulus check;
  • The tenant is unable to pay due to substantial loss of household income
  • The tenant is using best efforts to make timely partial payments; and
  • Eviction would likely render the individual homeless because the individual has no other available housing options.

It is possible that the CDC rule could face legal challenges. The statutory authority that is cited in the regulation (section 361 of the Public Health Service Act) permits CDC to issue regulations to prevent foreign visitors from transmitting a disease, and it permits CDC to issue regulations to prevent interstate transmission of a disease.  Nothing in the statute permits CDC to issue regulations to prevent intrastate transmission of a disease.  Because this regulation will mostly have an intrastate effect, it may be outside of CDC’s power to issue it.  E.g. United States v. Lopez, 514 U.S. 549, 552-560 (1995) (explaining the Commerce Clause limits that limit Congress’ ability to regulate intrastate commerce, which must be read as a limit on the statutory authority extended by Congress to the CDC).

This article is based on advance information obtained before publication of the rule.  If you plan to make a statement to your landlord under the rule then READ THE REGULATION to be sure you follow it correctly.

About Jason Dickstein
Mr. Dickstein is the President of the Washington Aviation Group, a Washington, DC-based aviation law firm. Since 1992, he has represented aviation trade associations and businesses that include aircraft and aircraft parts manufacturers, distributors, and repair stations, as well as both commercial and private operators. Blog content published by Mr. Dickstein is not legal advice; and may not reflect all possible fact patterns. Readers should exercise care when applying information from blog articles to their own fact patterns.

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