CDC issues eviction moratorium order but for some, it's too little too late

Posted at 7:07 PM, Sep 04, 2020
and last updated 2020-09-05 15:43:15-04

DENVER — The Centers for Disease Control and Prevention issued an agency order Friday for a nationwide eviction moratorium during the coronavirus pandemic.

In its order, the CDC said those who are experiencing homelessness are at a higher risk of contracting COVID-19 and the evictions moratorium could help slow the spread.

“It was unexpected that the CDC would take this action. A lot of our folks are very happy with it and that it provides some more protection for those who are really suffering from COVID-related financial hardship and just can’t pay the rent,” said Elena Wilken, the executive director of Housing Colorado.

The order comes roughly two months after Colorado’s own moratorium expired and is less comprehensive than the state’s previous version.

However, it does not stop cities or states from creating additional protections or more restrictive requirements during the pandemic.

What the CDC moratorium does and doesn’t do

The moratorium does stop evictions for people who cannot pay rent due to the pandemic, however it does not stop all evictions.

“There’s a long list of things that you can get evicted for: criminal activity, (threatening) the health of yourself or others, property damage, if you’re violating your lease,” Wilken said.

Tenants can also be evicted under the order for violating building codes and health ordinances or violating contractual obligations.

Tenants who are hoping to use the CDC guidance to avoid eviction also must take a series of actions including printing out the order, signing it and presenting it to their landlord.

They must also have proof that they have made their best effort to obtain all government assistance for rent or housing.

The tenant must certify that:

• They are unable to pay their full rent due to a substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses.

• They are making an effort to make timely partial payments as their individual circumstances permit

• They will likely become homeless or need to move to a shelter or live in close quarters with others if they are evicted.

Anyone who makes more than $99,000 for the 2020 calendar year (or $198,000 in a joint tax return filing) does not qualify for the eviction relief.

The moratorium does not prevent landlords from charging late fees for missed rent payments, it doesn’t prevent landlords from raising rent and it doesn’t talk about what happens when a lease ends.

It also allows landlords to demand full payments for current and previous rent from their tenants once it expires on December 31.

Too little, too late

While the CDC action is applauded by some, for others it’s belated. Christina Simms and Arthur Gallegos both lost their jobs as a result of the pandemic and have been struggling to make ends meet ever since.

Simms worked at FedEx and Gallegos was a server at IHOP before the pandemic. Simms also broke her ankle right after losing her job and was not able to look for a new job.

“We tried the unemployment route, we tried to get food stamps, and none of it really worked and it kind of all just spiraled,” Gallegos said.

This month, the couple was evicted. Ever since then, they have been trying to make just enough money each day to find a place to stay and pay for their food. The couple has even started a GoFundMe account to try to make ends meet.

“We have been couch-hopping with friends, we stayed in our car one night and then we stay at his mom's a little bit, but nothing is stable. We are night by night,” Simms said. “We are on the brink of homelessness. We could be downtown and a tent any time.”

Because of the fact that they don’t have a place to live and are relying on others to help them, the couple believes they are at a higher risk of exposure to COVID-19.

“Before we were, you know, staying home, we were avoiding people, we were going to the store and going to work a little bit and then going home. We weren’t going out and now we’re just out and about all around,” Gallegos said. “We’re both terrified. I feel like we’ve both been more exposed to it definitely.”

Both Gallegos and Simms say they are appreciative of the CDC order and hope it will help others avoid a situation similar to the one that they are in, but for them the action is too little, too late.

“This is really good for the millions of people who are going to be evicted or who are going to face that, but for us we were like, 'where was this last week, because we really needed that,'” Simms said.

Concerns with the CDC plan

While the eviction relief is providing a ray of hope for some, Wilken has questions about its feasibility.

“Our concern is that without any money, it’s only a moratorium on the eviction and not on rent, and so you’re just pushing that financial burden further into the future for those families, and next year they’re going to be under greater hardship,” Wilken said.

Wilken also has questions about how this overlays with existing Colorado policies. She would also like to see more guidance from the state on how to handle evictions since different jurisdictions have been handling them differently.

The Colorado Apartment Association says it was also surprised by the CDC’s decision to intervene in landlord-tenant law.

“For one thing, rent payments in Colorado have remained very strong throughout the COVID closures. They’re currently at 94.7%, which is only a couple percentage points off normal. Evictions are at an all time low, they’re running at about half of what a normal level would be,” said Drew Hamrick, the general counsel and senior vice president of government affairs for the Colorado Apartment Association.

Typically, there are around 36,000 evictions per year in the state, according to CAA data.

While the pandemic has been difficult for tenants, Hamrick says it’s also been particularly tough on small landlords. Currently, Colorado’s collection rate is at about 95% for monthly rent payments, according to CAA. For large apartment complexes or rental groups, the other 5% might be manageable.

However, in Colorado roughly 70% of the units are in complexes of seven units or less.

“If you’re a retired widow and you have a duplex and one of your residents isn’t paying, you have a 50% default rate,” Hamrick said.

One of the big issues he says landlords are facing, in particular in the state, is a lack of consistency since the rules on evictions have changed several times over the course of the pandemic and it’s difficult to plan. The CDC moratorium has added the latest level of confusion.

“It’s kind of action as well outside of the wheelhouse of the Centers for Disease Control. The way they promulgated the rule doesn’t comply with the administrative rule of law,” Hamrick said.

Wilken believes the order could face lawsuits in the near future to test its applicability, but Hamrick doesn’t think there’s an appetite for something like that among Gov. Jared Polis or Attorney General Phil Weiser.

Hamrick just wants people to remember that landlords are struggling through the pandemic as well and evictions are always a last resort.

“Landlords don’t make any money on an eviction action. You can’t make money on an empty unit and so an eviction action, which is about a three-month process and very expensive, is the last place on earth that a landlord wants to be as well,” he said.

For now, both Wilken and Hamrick say their best advice for tenants who are having a hard time making rent is to talk to their landlord and explain the situation as well as to reach out to government programs that can help.