By Michael S. Wrona

With a constant stream of executive orders, standing orders, and federal rules regarding eviction actions, it can be difficult to determine what actions can be taken by landlords and what actions are still prohibited. The answer depends largely on when the question is asked.  Currently, there are several orders from several sources (both state and federal), all issued within the last week of which landlords need to be aware. Bear in mind that this is only a snapshot in time, as these orders change on a monthly basis (if not more frequently).

As all are probably aware, Governor Lamont recently (through Executive Order 7OOO) extended the eviction moratorium until October 1, 2020. As a result, notices to quit and complaints still cannot be served unless they are based on serious nuisance, nonpayment of rent that was due on or before February 29^th, or a bona fide intention by the landlord to use the premises for the landlord’s principal residence. This is not a change from the prior executive order concerning the moratorium. However, on Monday, the Connecticut Superior Court issued a standing order that the stay on summary process executions was not being extended, so landlords are now free to request and serve executions provided the judgment of possession entered prior to March 19, 2020. The standing order makes clear that all previously-issued executions that have expired must be returned to court and a new execution filed. One further caveat to this standing order – the request or service of an execution cannot be in violation of any federal moratorium. That brings us to the United States Department of Housing and Urban Development, which last week extended the eviction ban that had initially been put in place by the CARES Act. That ban is through the end of the year, however, it is somewhat limited as it only impacts single-family properties financed with loans guaranteed by the Federal Housing Authority. In short, the Superior Court’s standing order will allow executions to issue on cases in which the judgment was entered prior to the State shut-down, and which do not impact HUD’s eviction moratorium.

But, as with all things tied to COVID-19, it is not that simple. On Tuesday of this week, the Centers for Disease Control and Prevention issued an order putting in place a national eviction moratorium through December 31, 2020. If you are wondering why the CDC would be issuing such an order (as opposed to HUD), that is because it has the ability under federal law to implement public health measures it deems necessary to prevent the spread of communicable disease. The Order states it applies only to evictions based on nonpayment and is not intended to apply to any eviction based on criminal activity, threatening behavior, property damage, the violation of any health or building code, or “violating any other contractual obligation other than the timely payment of rent or similar housing-related payments.” In addition, the Order is not intended to apply to any state that already has a moratorium in place with regard to “residential evictions that provides the same or greater level of public-health protection than the … Order.” This moratorium also operates quite differently than the State moratorium found in the Governor’s Executive Orders. While the CDC Order offers protections to tenants, the tenant must “invoke” the protections found in the Order by providing a declaration to the landlord. The declaration must state:

(1)   The tenant has used his/her best efforts to obtain all available governmental funding and assistance for housing/rent;
(2)   The tenant expects to earn less than $99,000 in 2020 (or no more than $198,000 if filing a joint return); was not required to file a tax return in 2019; or received a stimulus check pursuant to the CARES Act;
(3)   The tenant is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours, lay-off, or extraordinary out-of-pocket expenses;
(4)   The tenant is using best efforts to make timely partial payments that are as close to the full payment as the tenant’s circumstances permit; and
(5)   Eviction would render the individual homeless or force the person to move into a shared living setting because the tenant has no other available housing options.

However, many questions remain unanswered by the CDC Order:

First, the Governor’s Executive Orders do not contain any language regarding a declaration. Could a tenant provide the declaration to stop the issuance of an execution that is now allowed under the Superior Court’s recent Standing Order? Under this scenario, the tenant could claim that the declaration provisions of the CDC Order provide greater protections than those found in the Governor’s Executive Orders and, therefore, those provisions apply here in Connecticut notwithstanding the current state eviction moratorium.

Next, it seems clear that if the Governor does not extend the moratorium on notices to quit and complaints beyond October 1, the CDC Order would then become fully operative in Connecticut. It is worth pointing out, there is nothing in the CDC Order that prevents the issuance and service of notices to quit and complaints, and, as pointed out above, it is the tenant who must invoke its protections. Curiously, there is nothing in the Order as to when the tenant must provide the declaration. Moreover, is the landlord provided an opportunity to dispute the statements in the Declaration? The Order states that any person violating the Order is subject to criminal penalties. If the landlord has a good faith belief that the statements in the Declaration are not accurate but a court does not agree, has the landlord violated the Order by continuing the eviction after receiving the declaration? One would not think so, but there is no safe harbor set forth in the Order.

Clearly, there are many questions yet to be answered and it will bear watching if the CDC provides any further guidance concerning its recent Order. Of course, the Governor could extend the state moratorium again and render unimportant the CDC’s Order here in Connecticut.  All of this means that the rules that govern whether landlords may commence eviction actions are changing and may change significantly on October 1^st.

Read more