Evictions During the COVID-19 Pandemic- What You Should Know
The COVID-19 pandemic has brought economic challenges for all Arkansans. Job losses, lay-offs, and business closures, on top of increased medical and educational expenses, have created a perfect storm of economic insecurity. As incomes dwindle or disappear, many Arkansas families face the threat of eviction and homelessness. Evictions are on the rise according to monthly reports by Professor Emerita Lynn Foster of the William H. Bowen School of Law. An eviction is the last thing you need if you are feeling the economic pinch.
Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) in March 2020. The CARES Act included many protections for evictions and foreclosures. One of those was a 120-day “moratorium” or ban on evictions for nonpayment of rent in “covered properties.” Covered properties included housing that is funded by the federal government through subsidies (ex. HUD, USDA, LIHTC) as well as housing subject to a federally-backed mortgage (ex. FHA loans, VA loans, or loans through a private servicer that has been sold to Fannie Mae or Freddie Mac). That moratorium expired in July 2020. However, many of the CARES Act protections remain in place. For example, owners of covered properties must still give tenants a thirty (30) day notice to vacate before filing a case to evict that tenant for nonpayment of rent. This is a huge development because this is significantly more notice than is required under Arkansas law.
The U.S. Centers for Disease Control and Prevention has issued a new, broader ban on evictions for nonpayment of rent through its “Temporary Halt on Evictions Proceedings to Prevent Further Spread of COVID-19.” This CDC moratorium went into effect on September 4, 2020, and will remain in effect until December 31, 2020. Unlike the eviction moratorium under the CARES Act, the CDC moratorium applies to all long-term rental housing whether it receives federal funding or not.
Tenants should not assume they are protected from eviction during COVID-19. Many Arkansans have been evicted for nonpayment of rent since the moratorium went into effect. The CDC moratorium only applies to some tenants (“covered persons”) and those tenants must take specific steps to ensure they are protected. Courts across Arkansas have vastly different interpretations of how the CDC moratorium should work after an eviction case has been filed. Therefore, it is wise to contact your local legal aid program if you are served with an eviction lawsuit. Note that the moratorium only applies to tenant evictions for failure to pay rent. It does not apply to evictions for other reasons such as lease violations or damage to property.
Who Does the CDC Moratorium Protect?
The CDC moratorium bans evictions for nonpayment of rent for “covered persons.” A tenant or renter is a “covered person” if they sign a form or “declaration” created by the CDC and give it to their landlord.
Tenants need to read the CDC “declaration” or form and make sure that it truly applies to their situation. Tenants sign the declaration under penalty of perjury. If someone violates the CDC moratorium, the federal government may press criminal charges against that person with hefty fines (up to $500,000 in some cases) and even jail time. Initially, many thought those charges might apply to landlords and tenants who violate the CDC moratorium. However, the CDC has recently clarified that those penalties are for landlords who violate the CDC moratorium. However, a tenant could still face perjury charges if they sign the declaration and take advantage of the CDC moratorium when they know it does not apply to them.
The tenant must be able to truthfully swear to the following things:
The individual has used best efforts to obtain all available government assistance for rent or housing;
The individual either-
a. 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),
b. was not required to report any income in 2019 to the U.S. Internal Revenue Service, or
c. received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
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 expenses2;
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; and
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.
If those five statements are true for you, then you can submit a signed declaration to your landlord stating so. The CDC has provided a standard form that you can use [1], we also provide declarations in English, Spanish and Vietnamese on our Eviction Moratorium page, and we have an interactive form that will guide you step-by-step to see if you qualify, help you fill out the form, and provide an electronic copy for you to submit. You do not have to use the CDC form, but it is advisable to do so if possible. You can deliver the declaration to your landlord in person or electronically. Every adult living in the property who is listed on the lease should submit the CDC declaration. It is good practice to have some evidence that you delivered the declaration and when you did so (a text message, an email, or a witness if you deliver in person).
How to Be a Covered Person?
If those five statements are true for you, then you must submit a signed declaration to your landlord stating so. The CDC has provided a standard form that you can use [2], we also provide declarations in English, Spanish and Vietnamese on our Eviction Moratorium page [3], and we have an interactive form that will guide you step-by-step to see if you qualify, help you fill out the form, and provide an electronic copy for your to submit [4]. You do not have to use our forms or the CDC form, but it is advisable to do so if possible.
You can deliver the statement to your landlord in person or electronically. Every adult living in the property who is listed on the lease should submit the CDC declaration. It is good practice to have some evidence that you delivered the declaration and when you did so (a text message, an email, or a witness if you deliver in person).
This CDC declaration is given "under penalty of perjury." As such, each of the affirmations is subject to questioning in court. Although the burden should be on the landlord to prove that one or more of the statements is untrue, some Arkansas courts have placed the burden on the tenant to demonstrate that the assertions are true.
The CDC Moratorium May Not Keep You Out of Court
The CDC moratorium is intended to stop tenants from being physically ejected from their residence but does not halt state court eviction proceedings. Under Arkansas law, a landlord is never entitled to physically remove you or force you out of a rental property without a court order giving them the right to take physical possession of the property. When a landlord takes it upon themselves to force you out—by changing the locks, shutting off utilities, or removing doors—this is an illegal action called a “self-help eviction,” and you would then have a legal claim against the landlord. Your landlord might still file an eviction case against you in court even though the CDC moratorium is in place. The Arkansas Supreme Court has not issued any guidance to the lower courts about how to incorporate the CDC moratorium into eviction proceedings at this time.
What to do if you are in danger of eviction?
Communication is key. Talk to your landlord. As soon as you realize that you may not make rent, contact your landlord and let them know what is going on. Be realistic about your income and expenditures and see if your landlord will negotiate an agreement to pay partial rent and create a repayment plan for the unpaid rent. If possible, do this before you miss a rent payment. Make certain that any agreement you negotiate with your landlord is in writing and signed by both you and your landlord. You can find a sample “lease modification agreement” on our website [2]. Look this agreement over carefully to determine if it will work for your situation.
Under Arkansas law, you are required to pay the full amount of rent when it is due. A landlord can commence eviction proceedings almost immediately after a single failure to pay the full amount of rent. You should apply for rental assistance from local nonprofits, housing authorities, and faith-based groups. Congress has recently given local groups extra funds to help people catch up on their rent. For a list of Arkansas organizations providing assistance under this program, visit our website. Some local churches and other community organizations are also providing rental assistance to people in this time. Call the United Way’s 211 phone line or check arkansas211.org for civic groups that may be able to help.
Submit the CDC Declaration to your landlord as soon as you are in danger of eviction, i.e. after you do not make a full rent payment.
If your landlord chooses to proceed with the eviction process, you will first be served with a notice telling you to move out by a certain date. If you have not voluntarily moved out by that date, your landlord can go to court to seek the court’s help in removing you. At this point, you will want to seriously consider whether to move or try to contest your eviction. If you are being evicted for unpaid rent and you have not, in fact, paid rent, then it is very likely your landlord will win. Even if the court takes notice of your CDC Declaration and prevents your landlord from immediately removing you, this is only temporary until December 31, and you are still liable for any unpaid rent and late fees both prior to the court hearing and for as long as you are occupying the property. A court-ordered eviction on your record may make it hard for you to rent in the future, obtain Section 8 and other income-based housing, and hurt your credit.
As soon as any legal action is taken against you, contact the Helpline of the Center for Arkansas Legal Services at 501-376-3423 or toll-free at 1-800-950-5817. We can give you advice specific to your situation and may be able to represent you for free if you need to go to court. It is often too late once a judgment has been made for us to help. The sooner you contact us the better.
To learn more about the Eviction Moratorium and/or access the tools available to you from the Center for Arkansas Legal Services, visit www.ArkansasLegal.org/eviction-moraorium.
Author: Chad Pollock, Staff Attorney for the Center for Arkansas Legal Services
Resources:
https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf
https://www.arkansaslegal.org/eviction-moratorium
https://arkansaslegal.app.law/cdc-eviction-declaration-form/178767
http://www.arlegalservices.org/sites/default/files/Model%20Lease%20Modification%2030%20March%202020.pdf