Landlords tout their power after new evictions ban memo

While landlords call it a "nod" to their power, critics say the Centers for Disease Control and Prevention's memo clarifying its nationwide eviction ban walks back protections and intimidates tenants into leaving before the ban expires.

Under the CDC's nationwide eviction ban issued in early September, landlords were prevented from evicting tenants until Jan. 1, 2021. So far, at least two landlord groups, one in Georgia and one in Tennessee, have sued the government, calling the order unconstitutional and illegal.

However, Friday evening, perhaps in response to the legal challenges, the CDC released a "Frequently Asked Questions" memo, clarifying certain aspects of the order. In response, some tenants' rights advocates took to Twitter, saying the memo allows landlords to intimidate tenants.

Professor Emily Benfer of Wake Forest School of Law, who gave permission to quote a tweet of hers Wednesday, said the order allows landlords to file eviction papers before the ban expires, which could lead tenants who fear an eviction filing could hurt their credit to vacate their homes before the ban expires.

Benfer's tweet read: "Late Friday night when no one was looking @CDCgov @HUDgov @DOJPH @HHSGov issued guidance on the federal #eviction moratorium that walks back the order in favor of landlords, ignores public health evidence & undermines its purpose-to prevent #COVID19."

One of the clarifications critics seem to take umbrage with is that the order is not "intended to prevent landlords from starting eviction proceedings."

Solomon Greene, senior fellow at the nonprofit research organization Urban Institute in Washington D.C. tweeted:

"While purporting to clarify the order, the guidance issued on Friday complicates it. ... These late additions to the original order seem designed to allow landlords to intimidate tenants into leaving sooner."

Although critics argue the memo adds items to the original eviction order and walks back certain protections for tenants, the order itself says the guidance document "does not create or impose any obligations on any member of the public or any entity beyond those established by the order."

On the other hand, the National Apartment Association called the memo an "important clarification," that was issued only after it had direct conversations with President Donald Trump's administration. They called the memo, "a significant nod to the power of NAA," in a statement Tuesday.

"There is no doubt that National Apartment Association's aggressive advocacy and legal efforts, including firsthand conversations with the Trump administration and the U.S. Department of Justice, played a major role in this guidance," the association said. "NAA voiced concern over the outstanding issues related to the federal eviction restrictions and requested specific supplemental guidance to help housing providers operationalize these confusing and sometimes conflicting mandates, which ultimately culminated in the CDC's response. Though we continue to advocate against any extension or expansion of federal eviction restrictions, this significant development creates a path forward for the apartment industry."

Other clarifications landlords lauded and tenants criticized include one stating a tenant only qualifies for the eviction protections if they provide a declaration, under penalty of perjury, that they earn less than $99,000 a year; that landlords are not required to make their tenants aware of the order and declaration; and that any tenant who falsely claims to be covered under the order would be subject to prosecution.

The CDC issued the ban under the Public Health Service Act to prevent the spread of the coronavirus, arguing evictions increase homelessness and homelessness could lead to an increase in the spread of disease.

While the order does not apply to states providing moratoriums with the same or greater level of public health protection, the CDC eviction moratorium may be broader than many put in place at the state level.