Friday, November 27, 2020

COVID-19 Still Stopping Florida Evictions

Law Matters


 

Florida’s Residential Landlord and Tenant Act provide a clear procedure for tenant eviction. The Act provides mandatory notices, and in some cases, the opportunity to cure the default by the tenant. The Act is an effort to balance interests of both tenants and landlords.  

Protection for the tenant in eviction matters include mandatory content of notices and opportunity to cure default. A good example is notice of intent to evict for nonpayment of rent. The notice must give the tenant 3 days to pay the rent or move out. As benefit to the landlord, the notice can be posted on the rental property if the tenant is absent. If the tenant does not pay the rent within 3 days, the landlord can file an eviction case. The Act provides an expedited process for eviction actions, shortening the tenant’s time to answer the eviction complaint from 20 days in a normal lawsuit to 5 days and directing that the court expedite the final trial if requested by the landlord. 

The Act does more than balance the interests of both partiesIt effectively precludes self-help evictions and the potential for property damage and violence that could accompany self-help evictions. It prohibits changing locks or cutting off utilities as a method of forcing the tenant out. Since it takes away speedy self-help remedies, it provides for expedited notice and trial not available in most other cases. When a tenant does not pay rent, a landlord can speedily evict and look for a new tenant. 

The balance between landlord and tenant was tipped in favor of tenants in response to the COVID-19 Pandemic. Florida’s Governor issued Executive Order 2020 – 94 on April 2, 2020, temporarily stopping all statutes providing for eviction “solely as it relates to non-payment of rent by residential tenants due to the COVID-19 emergency for 45 days.” That Order was extended by subsequent Executive Orders, but expired on October 1st. In response to the Governor’s Orders, local courts held up most residential eviction cases, even those filed because the lease had expired and the tenant refused to leave or where the tenant was causing problems and the landlord wanted to terminate the lease. 

Florida landlords, many of whom are struggling to pay their own bills, thought they would finally be able to look for rentpaying tenants with expiration of the Governor’s Executive Order. Florida courts again started hearing eviction cases. Howeverthe landlords discovered they still had a problem. The federal government had stepped in. 

Tenants impacted by COVID-19 can still avoid eviction under an Order issued by the Centers for Disease Control and Prevention (CDC) on September 4th of this year. That Order does not stop all residential evictionsonly those in which non-payment of rent is allegedly due to COVID-19. However, it does allow many tenants to remain in their apartments or homes without paying rent through December 31. 

The CDC’s Order is titled, “Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19.” The Order explains its intent as mitigating the spread of COVID-19 through shared living settings or through unsheltered homelessness. It does that by keeping many tenants in residence, even when they do not pay rent. The Order makes it clear it is only intended to protect tenants unable to pay rent due to COVID-9. It explains that in Seattle King County, 5 to 15% of people experiencing homelessness between 2018 and 2020 cited eviction as the primary reason for becoming homeless. It also noted that 27% of people entering shelters throughout the United States in 2017 were staying with family or friends beforehand. It went on to explain that homeless people are a high-risk population and that there is a high percentage of positive COVID-19 test results in homeless shelter residents.  

The CDC’s Order states that nothing in the order is intended to preclude eviction based on a tenant, lessee or resident: (1) engaging in criminal activity on the premises, (2) threatening health or safety of other residents, (3) damaging or posing an immediate and significant risk of damage to property, (4) violating any applicable building code, health ordinance or similar, and (5) filing any other contractual obligation, other than timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties or interest). 

The Order does not cover all residential tenants, but it covers most. It defines a covered person as any tenant, lessee or resident of a residential property who provides landlord a declaration under penalty of perjury indicating that: (1) the individual has used best efforts to obtain all government assistance for rent or housing, (2) the individual expects to earn no more than $99,000 in annual income for 2020or no more than $198,000 if filing a joint returnor was not required to report any income in 2019, or received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act; (3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a layoff, or extraordinary out-of-pocket medical expenses, (4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expensesand (5) eviction would likely render the individual homeless or force the individual to move into and live in close quarters in a new congregate or shared living facility because the individual has no other available housing options. 

So far, most local evictions are unaffected by the CDC Order. The requirement that a tenant provide a declaration under oath is not known by most tenants. That means, even if tenants could use the Order as a defense to eviction, they fail to provide the declaration and are therefore not protected by the Order. The Governor’s Orders stated they stopped eviction only for failure to pay rent when the failure was COVID-19 related, but local courts seemed to apply the Order as an almost universal ban on residential evictions. The same approach has not been taken with the CDC Order, and it appears to be limited by courts to its requirement that a tenant file a declaration. 

Landlords are still looking for a government order reimbursing them for lost rent or excusing them from paying mortgage, taxes and other expenses of the rental properties. That does not appear likely. At least for now, landlords find some relief as local courts are limiting the application of the CDC Order to those cases in which a tenant files a declaration. 

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.  

 


 

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