The CARES Act Eviction Moratorium Expired, So Why Am I Still Seeing This Affidavit?  

If you are a judicial official hearing summary ejectment actions right now, you have plenty to be confused about. I’ve recently received a number of inquiries from you asking why you’re still receiving CARES Act affidavits (CVM-207), since the eviction moratorium imposed by the Act expired in late July. The short answer is that the affidavit contains extremely useful information relevant to your disposition of an SE case. In this blog post, I’ll explain what that information is and what you should do with it.

You may recall that the CARES Act §4024 had three important provisions. First, it prohibited eviction of tenants from “covered dwellings” for failure to pay rent (or fees associated with failing to pay rent) during the period between March 27 and July 24. Second, it prohibited landlords from charging such tenants fees related to late payment of rent. Finally, it prohibited landlords from giving tenants notice to vacate during the moratorium period and required at least thirty days for notices given after the moratorium expired.

Note that two of these provisions continue to have potential significance in your courtroom. First, landlords seeking money damages in addition to summary ejectment are not entitled to recover late fees for rent falling due within the moratorium period if the affidavit reveals the rental premises are a covered dwelling.  (Unfortunately, when identical damages are sought in a separate action for money owed, the magistrate will not have the benefit of the affidavit in determining whether the landlord is barred from recovering these fees and will thus need to remember to inquire about the Act’s applicability.) Second, a landlord of a covered dwelling who is seeking eviction based on non-payment of rent coming due between March 27 and July 24 must have provided the tenant with a thirty-day notice to vacate prior to filing the complaint.

When #3 on the affidavit indicates that the rental property is a covered dwelling and the basis for eviction is default in paying rent, the following analysis applies:

First, identify the date of the most recent default in the rent.

• If default occurred before July 24, the plaintiff must prove:
• That the tenant was given 30 days’ notice to vacate;
• That this notice was given after July 24; and
• That the plaintiff waited at least 30 days after giving notice before filing the complaint.
• If default occurred after July 24, the 30-day notice requirement under 4024 does not apply.

Even if the notice required by §4024 is not an issue, however, a different section of the CARES Act may apply. Sec. §4023 must be taken into consideration if:

• The rental premises are designed for occupancy by five or more families;
• The property secures a “federally backed multifamily mortgage loan” as defined by the Act; and
• The property owner/borrower has obtained a forbearance pursuant to the Act, meaning that the mortgage servicer has agreed not to take steps to foreclose even though the borrower fails to make the required loan payments.

A forbearance may not exceed 30 days but may be extended for up to two additional 30-day periods upon request by the landlord. This section of the CARES Act does not expire until December 31 (assuming the national emergency declaration is not terminated prior to that time).

How the affidavit helps: Sec. 4023 protects covered tenants in two distinct ways. First, the borrower may not “evict or initiate the eviction” of a tenant “solely for nonpayment of rent or other fees” while the forbearance is in effect. Second, when a landlord has obtained a forbearance, a tenant being evicted for default in the rent is entitled to a minimum notice to vacate of 30 days. Similar to the §4024 notice discussed above, this notice may not be given until after the forbearance expires.

The affidavit provides information relevant to each of these protections. If Box #4 is checked, indicating that the mortgage is currently in forbearance, the landlord is prohibited from proceeding in a summary ejectment action. If the mortgage is not currently in forbearance, on the other hand, but Box #6 is checked, an additional question is necessary: is the mortgage loan on the property a multi-family mortgage loan? If so, here’s the analysis for that issue:

First, determine whether the landlord has received a forbearance since March 27. If not, §4023 does not apply.

If so, determine

• When the forbearance period ended,
• when the landlord gave the tenant notice to vacate,
• whether notice was given after expiration of the forbearance period, and
• whether notice was given at least 30 days prior to filing the complaint.

I hope this information is helpful to judicial officials in determining whether and how the CARES Act requirements continue to apply to summary ejectment actions coming on for hearing between now and the end of the year. In my next blog post, I’ll review the CDC Order along with a few miscellaneous things to keep in mind related to eviction in the time of COVID.

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