The State Court Administrative Office on Thursday evening issued guidance to local courts in response to a nationwide order banning evictions.
To be protected under the moratorium, tenants must opt-in by signing a declaration attesting they meet the eligibility requirements of the Centers for Disease Control and Prevention’s order.
Local courts will get to decide how they interpret the order, meaning that some may continue with eviction proceedings while others may not,but still honor a tenant’s declaration. The order was published in the Federal Register in Friday morning.
“Some courts will stop eviction proceedings altogether; others will continue processing filings depending on how they interpret the order. The outcome, however, is the same. Landlords cannot evict tenants who fill out the declaration until the moratorium expires,” John Nevin, spokesperson for SCAO, said via email Thursday evening.
At the 36th District Court in Detroit, Chief Judge William McConico said in a statement Friday that the court “will still hold landlord-tenant hearings. However, the protections provided by the CDC’s order will be enforced.”
Michigan Legal Help, a nonprofit funded by the Michigan Supreme Court and the Michigan State Bar Foundation that helps people navigate legal problems, is creating a DIY toolkit and a sample declaration document. This information will be available online Tuesday, said Angela Tripp, director of Michigan Legal Help.
This week, the CDC announced an eviction ban through the end of the year for people who have lost work during the COVID-19 crisis and are unable to make rent or find other housing options and who meet eligibility requirements. The order was a surprise to local housing advocates and landlords.
Advocates for tenants welcomed the order but said the move offers only short-term relief and should be paired with financial help. Landlords raised concerns about being unable to meet financial obligations because of missed rent payments. They also say financial relief is required.
In Detroit, a moratorium on residential evictions for nonpayment of rent expired Aug. 16 after a statewide ban lapsed the previous month.
McConico said the CDC eviction ban is “quite different” from moratoriums previously issued by the state and 36th District Court.
“The moratoriums established by the Governor and the 36th District Court protected all residential tenants from eviction during the applicable moratorium times,” he said. “The CDC’s moratorium only protects a select group of people. And that select group of people has to meet certain requirements and take certain steps to be provided protection from an eviction.”
Here’s a rundown of what tenants should know about the new order and how courts are responding to it.
Am I eligible?
The order outlines five requirements:
- You used your “best efforts” to get all available government assistance for housing.
- Your income doesn’t exceed $198,000 if you’re a joint filer or $99,000 if you’re filing by yourself. You may still qualify if you were not required to report any income to the federal government or if you received a stimulus check.
- You have experienced a “substantial loss” of household income, lost wages, were laid off or had “extraordinary” out-of-pocket medical expenses, which the order defines as un-reimbursed medical expense that would be more than 7.5% of your adjusted gross income in 2020.
- You are making your “best efforts to make timely partial payments that are as close to the full payment” as your circumstance permits, while taking into account other non-discretionary expenses.
- If you were to be evicted, you would have no other housing options and would be homeless or living in close quarters with other people.
Where can I find the declaration form?
Tenants can find a sample declaration from the CDC. The order says each adult listed on the lease should provide a declaration.
Here’s an eligibility screening tool from A2J Tech — a social enterprise that builds technology to improve access to justice — that can help tenants create a form to send to their landlord: covid19evictionforms.com.
Michigan Legal Help is also creating a sample declaration document and will make it available on its website at michiganlegalhelp.org/coronavirus/eviction.
To whom do I give the declaration form?
Declaration forms should be given to a “landlord, owner of the residential property where they live, or other person who has a right” to have a tenant evicted or removed, the CDC order said.
This declaration is sworn testimony meaning that tenants can be prosecuted, sent to jail or charged a fine if they misrepresent or omit important information.
Can a landlord disagree with my declaration?
Yes, a landlord could potentially “challenge a declaration and then a judge would decide whether the tenant is eligible and protected. The process for this is unclear,” Tripp wrote in an email Thursday evening.
Can a landlord evict me for reasons other than nonpayment?
Yes, tenants can still be evicted for engaging in criminal activity while on the premises of their rental home, threatening the health and safety of other residents or damaging property. Tenants are required to follow the terms of their lease.
“If a landlord challenges a tenant’s declaration and the judge decides the tenant is not protected, presumably the eviction could still happen,” Tripp said.
Do I still have to pay rent and can late fees and penalties still apply?
Yes, signing a declaration does not mean that tenants don’t have to pay rent or that landlords can’t collect late fees, penalties or interest for late payments.
Tenants who qualify for the moratorium should pay what they can because “if they can’t pay they will face eviction again” when the order expires, “this is the ‘kicking the can down the road’ aspect of this order,” Tripp said.
The order says that nothing in it “precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.”
Will all courts in Michigan halt eviction proceedings?
The State Court Administrative Office said how courts respond to the order is “ultimately a matter of judicial interpretation,” according to its memo Thursday to district courts across the state.
What does this mean? It will be up to courts to decide whether notices to quit, filings, hearings and writs of eviction are prohibited or not, Tripp said, adding that some courts may stop eviction proceedings altogether while others will continue processing filings and holding hearings but stop short of issuing writs of eviction.
“In courts allowing filings and hearings, litigants and lawyers will have the opportunity to try to convince judges either in individual cases, or as a court policy to interpret one way or the other,” she said.
If tenants are unsure whether they qualify, they should reach out to local legal aid organizations, said Kellie Maki Foster, staff development director at Lakeshore Legal Aid.
How will the order impact existing eviction diversion help?
In July, the state launched the Eviction Diversion Program, in which landlords whose tenants cannot afford rent due to hardships stemming from the pandemic can apply for up to 90% of a tenant’s back rent.
That program is still available, Katie Bach, communications director of the Michigan State Housing Development Authority, said in a statement Thursday.
The state doesn’t expect the CDC order to interfere with the $50 million program. If tenants are ineligible for the CDC ban, they may still apply for the EDP if they meet the income requirements and received a notice to quit or court summons.
“Michigan’s Eviction Diversion Program has already helped Michiganders across the state stay in their homes, and will continue to do so,” Bach said. “We believe that the CDC’s order is consistent with the Eviction Diversion Program, and will continue to work tirelessly to help tenants access rental assistance to stay in their homes.”
For more information on the program, go to michigan.gov/mshda.
Legal Aid Resources:
Nushrat Rahman covers issues related to economic mobility for the Detroit Free Press and Bridge Detroit as a corps member with Report for America, an initiative of The GroundTruth Project. Click here to support her work.