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Insight Extension of CDC Eviction Order

By Christopher Cook,

Aerial image of downtown Boise

Update: CDC Extends Eviction Order Until March 31, 2021

As many Idaho landlords and renters alike have come to know, the Centers for Disease Control and Prevention (the “CDC”) issued an order effective September 4, 2020, entitled Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19 (the “Order”).[1] The Order, which was set to expire December 31, 2020, has now been extended to January 31, 2021.

The extension comes with Congress’ passage of the Consolidated Appropriations Act, 2021 (the “Act”) on December 21, 2020, and President Trump’s signing of the same into law on December 27, 2020.[2] The Act is over 5,000 pages long, and a very small component serves to extend the Order’s expiration date until January 31, 2021. In particular, Division N, Title V, Subtitle A, Section 502 of the Act states:

The order issued by the Centers for Disease Control and Prevention under section 361 of the Public Health Service Act (42 U.S.C. 264), entitled ‘‘Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19’’ (85 Fed. Reg. 55292 (September 4, 2020) is extended through January 31, 2021, notwithstanding the effective dates specified in such Order.

With the purported goal of preventing the further spread of COVID-19, the Order serves to temporarily halt residential evictions of certain covered renters for the non-payment of rent (evictions for reasons other than the non-payment of rent may generally still proceed). While tenants must take affirmative action to assert the protections of the Order (i.e., provide a completed and signed copy of the form CDC declaration[3] to their landlord), the Order does not otherwise excuse the non-payment of rent or the continued accrual of applicable fees and penalties during the period of the Order. To the frustration of many landlords, Idaho courts have taken different approaches with respect to allowing landlords (and their counsel) to verify the veracity of the tenant’s declaration when attempting to proceed with an eviction for the non-payment of rent. The conservative approach being for courts to accept the declaration, and thereby the determination of a tenant’s status as a “covered person” under the Order, at face value – effectively halting the eviction process without contest. This result left many landlords anxiously awaiting the expiration of the Order on December 31, 2020. However, with the Act’s passage, the wait to proceed with a residential “quick” eviction for the non-payment of rent will generally continue for at least another month.

Lastly, upon the Order’s expiration, landlords and tenants alike will nevertheless want to take care to evaluate potential continuing implications of the Coronavirus, Aid, Relief and Economic Security Act (the “CARES Act”).  While the details are beyond this article’s scope, the CARES Act established a 120-day residential eviction moratorium regarding non-payment of rent for certain covered properties. Though the CARES Act eviction moratorium expired on July 25, 2020 (arguably prompting the CDC to pass its Order discussed above), other eviction-related restrictions could still apply, including additional notice requirements concerning the non-payment of rent.

For questions concerning the Order, the Act, or your options and rights regarding residential or commercials evictions, please contact Hawley Troxell’s real estate practice group.

[1] The full text of the Order may be found here: https://www.govinfo.gov/content/pkg/FR-2020-09-04/pdf/2020-19654.pdf

[2] The full text of the Act may be found here: https://www.congress.gov/116/bills/hr133/BILLS-116hr133enr.pdf

[3] A copy of the CDC declaration may be found here: https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf

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