COVERED PROPERTIES UNDER THE CARES ACT
BY ATTORNEY DAVID WEISSE, PARTNER, HEIST, WEISSE & WOLK, PLLC
Under recently enacted federal legislation on March 27, 2020, there is a moratorium in effect on nonpayment of rent eviction cases on properties covered under the CARES Act.
The federal law moratorium runs through July 25, 2020 but only applies to “covered” properties, and would also require a 30-day notice to be given for any vacating notice, including a demand to pay rent or vacate.
Therefore, a nonpayment of rent notice on a covered property cannot be given until after July 25, 2020, and filing an eviction action on such a notice will not even be possible until late August of 2020 at the earliest. This obviously creates a very significant delay in pursuing unpaid rent. Moreover, no late fees or other charges related to nonpayment of rent may be assessed while the moratorium remains in effect, and no other monetary obligations may be pursued as the basis of an eviction action while the moratorium remains in effect.
The list of “covered” properties is extensive and includes federally backed mortgage and multifamily mortgage loans, and the connection can be quite limited.
Covered loans are defined as any loan that “is made in whole or in part, or insured, guaranteed, supplemented, or assisted in any way, by any officer or agency of the Federal Government or under or in connection with a housing or urban development program administered by the Secretary of Housing and Urban Development or a housing or related program administered by any other such officer or agency, or is purchased or securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage Association.” This list would include mortgages obtained through Fannie Mae or Freddie Mac or which involve an FHA insured loan. LIHTC properties are covered. Yet other properties include The Rural Housing Voucher Program, properties subject to The Violence Against Women Act of 1994, Section 202 Supportive Housing for the Elderly Program, Section 811 Housing for Persons with Disabilities Program, Housing Opportunities for Persons With AIDS (HOPWA), McKinney-Vento Homelessness Assistance Programs, Section 236 properties, and units in which the resident is taking part in the Section 8 Housing Choice Voucher (HCV) Program.
If you are dealing with nonpayment of rent or some other lease noncompliance, our office cannot assist you unless we know very clearly whether the property is “covered”.
If you are a property manager, you must get written confirmation from the owner whether the property is “covered” or not, and we can provide you with a form to that end. If the property is “covered”, it will have a profound impact on when you can deliver certain notices, and even if there is no moratorium on a non-rent related notice, giving a 30-day notice to cure for an unauthorized, aggressive dog or giving a 30-day notice to terminate to a resident dealing crystal methamphetamine probably does not match your normal procedure, but that is what the federal law will require on “covered” properties, at least for the next few months.
If a landlord intends to pursue eviction for the non-rent related noncompliance, the Florida law prohibition on accepting rent in the meantime is still the standard, so the greater notice requirement exacerbates the loss of rent revenue while the landlord is trying to pursue eviction for that unauthorized dog or drug dealing problem.
We believe non-renewal notices given to circumvent the moratorium on nonpayment of rent cases will be totally ineffective if the non-renewal notice is motivated primarily by the resident’s nonpayment of rent or other amounts owed under the lease. If the non-renewal notice is based on legitimate reasons not related to the resident’s monetary default, and the lease in question has already expired, the non-renewal notice will have to provide at least 30 days’ written notice and coincide with the end of some payment period, in addition to any notice requirements governing month-to-month tenancies in the expired lease. This standard imposes a greater standard than existing Florida law regarding the termination of month-to-month tenancies.
If the non-renewal notice was delivered prior to the nonpayment of rent eviction moratorium going into effect, then there is a better chance a judge will view the notice as not being an attempt to circumvent the nonpayment of rent moratorium, but if that notice in question was given to replace a 3-day notice, the landlord could still have problems having the eviction granted. A non-renewal notice issued after the applicable moratorium went into effect will likely face greater judicial scrutiny, but if the notice was legitimately motivated by reasons not connected to rent payment, the landlord should be able to enforce that notice, subject to whatever other delays may be affecting all eviction cases, such as any state law moratorium on evictions, and possible delays on writ of possession issuance and execution.
