As reported in our September 4 blog post, the Centers for Disease Control (CDC) formally published its order to temporarily halt residential evictions nationwide for nonpayment of rent of qualifying tenants in response to the CDC’s stated concerns about the spread of COVID-19.
Many people have questioned whether the CDC has overstepped its authority, and legal challenges to the CDC’s order have already been filed as of the writing of this post, including in Georgia.
Iowa Supreme Court’s Response
After the federal CARES Act was passed, the Iowa Supreme Court issued a supervisory order providing guidance as to how certain CARES Act issues should be addressed by small claims courts. In this case, however, the Court opted, at least at this time, to issue an announcement simply announcing the September 4 CDC order and stating that, “[t]he State Court Administrator has communicated with all judicial officers to make them specifically aware of the CDC order, providing links to the order and to the [hardship declaration] form developed by the CDC for use by tenants.”
The announcement also noted that the Iowa Supreme Court is “continuing to monitor the situation and may take further action as needed.” That does not mean that an implementation order from the Supreme Court might not be forthcoming, but as of this writing, no such order has been issued.
What this means for Iowa landlords:
- Not an automatic stay: Landlords should not be proactively dismissing or continuing pending nonpayment of rent evictions, as the CDC Order is not an automatic stay on pending cases. Instead, tenants must affirmatively invoke the protections of the CDC Order by submitting the Hardship Declaration to the landlord. Unless and until a landlord receives a declaration, the landlord should proceed as it normally would in eviction matters.
- Options once a declaration is received: If a landlord receives a declaration from a tenant, the landlord needs to consult counsel to determine the appropriate response, remembering that there are serious federal criminal penalties for violation of the CDC order. Our advice to landlords will be specific to each situation and will depend upon any current orders from the Iowa Supreme Court and our knowledge as to how each county’s magistrates are interpreting and implementing the CDC order. Landlords who have received a declaration from a tenant should not proceed with and appear at an eviction hearing without counsel.
Note that the CDC order does not only apply to pending eviction actions but also likely prohibits a landlord from taking any action related to the eviction of a tenant if the tenant has properly invoked the protections of the CDC order. This is due to the broad definition under the CDC order of evict/eviction, which is defined as “any action . . . to remove or cause the removal of a covered person from a residential property.”
For example, if after receiving a declaration from a tenant, a landlord issues a normal three-day notice of nonpayment of rent to such tenant, the landlord may be violating the order for sending out the three-day notice. Additionally, the order may apply even where an eviction order has already been entered but the tenant has not yet been removed. As such, any time a landlord receives a declaration the landlord should be contacting legal counsel.
- Unpaid rent by tenants who have invoked CDC order’s protections: This is a reminder notice regarding delinquent rent that landlords can and should use if the landlord is prohibited from proceeding with an eviction against a tenant under the CDC order due to the tenant submitting the Hardship Declaration. This reminder notice, which should be used instead of the standard three-day notice of nonpayment, reminds the tenant that he or she still owes rent and expressly notes that the landlord is not waiving any rights regarding the unpaid rent. Using this reminder notice will ensure the landlord is not potentially in violation of the CDC’s order.
Unaffected Eviction Actions
The order prohibits only evictions based on nonpayment of rent or other housing payments. The order expressly provides that landlords may evict tenants for engaging in criminal activity, damaging the property, violating lease and other contractual obligations unrelated to the payment of rent, violating building codes or health ordinances, or threatening the health or safety of other residents. Tenants are still obligated to pay rent and landlords are still permitted to charge any and all applicable late fees, penalties, and interest associated with missed rental payments during the eviction moratorium period.
Residential landlords with pending eviction actions should contact their attorney. All other landlords should look for guidance on how to proceed with future actions.
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