On Friday morning, a moratorium on residential evictions issued by the U.S. Centers for Disease Control and Prevention (CDC) took effect nationwide, potentially pausing all evictions related to nonpayment or underpayment of rent. The moratorium will last until December 31, 2020, and was issued under the CDC’s broad powers to prevent the spread of disease — in this case, COVID-19 — into and within the United States.

The order replaces a federal eviction freeze under the CARES Act, which only covered some properties. That moratorium expired in July, though it expanded required eviction notices to 30 days, meaning that many renters could not be forced to leave until late last month. The state of Louisiana and city of New Orleans likewise had earlier moratoriums of their own. Those expired in June.

The new federal moratorium may head off an expected eviction wave, which could force people to live with relatives, in temporary congregate settings, or on the street.  

“In the context of a pandemic, eviction moratoria — like quarantine, isolation, and social distancing — can be an effective public health measure utilized to prevent the spread of communicable disease,” the order reads. “Eviction moratoria facilitate self-isolation by people who become ill or who are at risk for severe illness from COVID-19 due to an underlying medical condition.”

But many observers, including judges and renter’s advocates, agree that interpreting the order will be a challenge. At issue are questions about who will carry out the elements of the moratorium, and if jurisdictions across the state will interpret the moratorium consistently.

“The order is confusing at best,” said Hannah Adams, a housing lawyer with Southeast Louisiana Legal Services.

New Orleans judges this week took a step to eliminate that confusion. On Thursday, The First and Second City Courts in New Orleans, which handle most of the city’s evictions,  issued a blanket stay on evictions, including those that had hearings scheduled. The local moratorium does not cover evictions related to lease violations other than nonpayment of rent. Those other cases will continue to move forward.

“Any tenants who came in [whose cases] had to do with nonpayment of rent were immediately told that their cases will be continued until the end of the moratorium,” said Walt Pierce, a spokesperson for the courts.

But other parts of the metropolitan area, including St. Bernard Parish and Jefferson Parish, have not issued similar stays, and are still working on how to treat evictions under the federal order.

Evictions and public health

Maxwell Ciardullo, policy director for the Louisiana Fair Housing Action Center, said that his organization has been making a public health argument for an eviction moratorium since early in the pandemic. 

“Before the pandemic, there was already a deep connection between housing insecurity and public health,” he said.. “When people are worried about their possessions being put on the street, there are all sorts of negative health outcomes associated with that. It’s a traumatic event.”

“Now in this new normal, being evicted dramatically increases your risk. Where do people go? They go live with family and friends, doubling up, which research is showing may be one of the risk factors [for Covid outbreaks] in communities of color. Or you’re in a congregate shelter, which obviously puts you at risk. That’s the public health rationale that this order relies on, and it’s true now, and it was also true in March.”

Still, he suggested, the CDC order just “postpones the avalanche of evictions until after the election, until 2021. We’re going to continue to fight for rent relief from Congress.”

As the Lens reported earlier this week, homeless service providers in the region are anticipating a wave of people entering homelessness, and have already reported dramatic increases in people living unsheltered since a low point in March and April.

City officials directed questions about outbreaks driven by housing insecurity to the Louisiana Department of Health, which did not answer questions as of press time.

Davida Finger, a law professor at Loyola University who works on eviction and landlord cases through the school’s law clinic, said the fact that the moratorium came from the CDC isn’t surprising.

The National Housing Law Project, she noted, had sent repeated letters to a variety of federal agencies, including the Department of Housing and Urban Development, the Treasury, and the Department of Agriculture, asking them to use emergency powers to issue eviction moratoriums.

“This didn’t come out of thin air. Advocates in DC have been working really hard on this,” she said.

How does the order work?

The order states that landlords “shall not evict any covered person from any residential property … during the effective period of the Order.” But renters need to take a proactive step to be protected: each individual on a lease must separately submit a sworn declaration directly to their landlord. 

The declaration, which is available on the city of New Orleans website, says that lying, or leaving out information can be punished as perjury. However, it is not clear who would be responsible for determining such violations. By showing the landlord the declaration, a resident attests that:

• They expect to make less than $99,000 this coming year, or less than $198,000 if filing jointly.
• They have made “best efforts” to get “all available” governmental housing assistance.
• They can’t pay full rent because they have lost income or faced “extraordinary medical expenses.”
• They are making “best efforts” to pay as much of rent “as the individual’s circumstances may permit, taking into account other nondiscretionary expenses.”
• If evicted would “likely” become homeless or be forced to move into a crowded living situation.

Adams says that the moratorium will cover most of the evictions that SLLS is currently handling, and so the organization is focused on getting the declarations into the hands of as many tenants as possible. 

“The tenant has met their burden by providing the declaration,” she said.

Jefferson Parish Justice of the Peace Charles Cusimano III, whose court handles evictions in Metairie and Jefferson, said that he isn’t clear on how the courts are supposed to be involved in the process. 

“The way [the moratorium] is written now, it leaves the Justice of the Peace out of the loop,” he said. “Upon [presenting the declaration], the tenant has fulfilled his obligation. How does the landlord challenge the declaration? I really don’t know.”

“Therefore, if the landlord stands in front of my court and says he is able to go forward with that eviction, I will go forward with it,” Cusimano said. “There are incredibly punitive consequences if he lies”–up to half a million dollars in fines, and the possibility of jail time if the tenant ends up dying of Covid, whether or not the tenant contracted the disease as a result of the eviction.

On Thursday, he said, his court heard five evictions, and issued 20 writs of eviction, which tell the local constable to actually remove someone from a property. The writs, he said, are the result of “the first wave” of evictions following the expiration of the CARES Act, but he says that overall evictions in August were about 25 percent of the previous year’s numbers.

When asked if he would provide tenants with copies of the declaration, he said “If the attorney general wanted to put out an advisory, I’m perfectly okay with that. The problem is, [this moratorium] changes the emphasis a little.”

“Under the CARES Act,” the federal eviction moratorium for properties receiving federal funding that expired in July, “the landlord has the burden of proof to the judge that he did x, y, and z. Under the CDC order, that affidavit doesn’t go to the judge. Me telling [a tenant] to do the affidavit, am I an advocate for him?”

Beau Beauman, a justice of the peace in St. Bernard Parish whose court covers Chalmette, said that he’s waiting for the state attorney general to issue guidance before interpreting the moratorium. 

“I don’t anticipate that they won’t handle the issue,” he said. “If [an interpretation] didn’t come down, I would go up the chain and request one.”  The Attorney General’s Office did not respond to a request for comment. 

In the meantime, evictions are proceeding in his ward.

“I’m worried about the attorney general getting the word out about this to all the Justices of the Peace across the state,” Adams said. “I’m anxious about tenants having enough time to complete the declaration in time.” 

And, she said, the court system isn’t the only institution that will need to be educated about the moratorium. 

“Will the constables” — who enforce eviction orders — “know as well? A uniform message needs to get out to everyone, landlords, judges, tenants.”

Holes in the moratorium

Because of the outstanding questions about whether declarations will be open for challenge, and who will be asked to interpret them, Adams said that SLLS is advising its clients to prepare to testify about their finances and housing options.

“Just to be safe, clients should be prepared to testify about what agencies they’ve called for support, to talk about their budgets, what they spend money on. Although like I said, I’m not sure whether that’s legally necessary.”

If courts do end up allowing landlords to challenge declarations, Adams said, a whole new set of problems may appear.

“This is all going to depend on tenants’ testimony. People aren’t going to have a record of every call they made to the church down the street.” She’s heard that even the New Orleans rental assistance program wasn’t necessarily providing paper records to tenants about how much assistance they’d received.

Breonne DeDecker, program director for Jane Place Neighborhood Sustainability Initiative, said she worries about gaps in the moratorium that have existed in previous protections.

“We know that some landlords were getting around the CARES Act by evicting for lease violations that were bogus,” DeDecker said. 

She said that their work of educating tenants about their rights, and tabling outside apartments belonging to landlords that they say are known to bully tenants, will continue.

“Oftentimes tenants might not know they are protected. People will self-evict, just leaving the premises.”

“A landlord will post a threatening notice on their door, telling tenants that they’ll call the police to evict people,” she said, noting that the police do not enforce evictions in Orleans Parish. “It’s just intimidation and relying on a lack of knowledge.”