Governmental Affairs, Federal and Local, October 2020

FEDERAL UPDATE:

This Country has been thorough a lot in the last seven months and all of it has an impact on the multi-family housing industry.  On a Federal level, the industry has come to a screeching halt with the extended moratorium on basic evictions. We have continued to monitor and advise on many of the issues through our affiliation with the National Apartment Association.

THE CDC ORDER:

On September 1, 2020, the U.S. Centers for Disease Control and Prevention (CDC) filed an order in the Federal Register to temporarily halt residential evictions to prevent the further spread of COVID-19. The order was formally published on Friday, September 4, 2020 and bars evictions of renters in residential housing until December 31, 2020. 

The order:

• Applies to virtually all rental housing providers and prohibits any eviction action to remove a renter from their housing during the covered period, so long as the renter provides the required declaration to their housing provider;
• Does not prevent evictions based on the lawful reasons articulated in the order, other than nonpayment of rent;
• Does NOT eliminate the resident’s obligations under the lease, and housing providers may charge late fees or other penalties for nonpayment of rent; and
• States that any person or organization that violates the order may be subject to up to $500,000 in fines per violation and/or jail time. Enhanced penalties apply if the violation resulted in death, at the discretion of the U.S. Department of Justice. 

For renters to be eligible for the order’s protections, they must provide a declaration under penalty of perjury to their housing provider indicating the following:

• The individual has used best efforts to obtain rental assistance;
• The individual expects to earn no more than $99,000 (no more than $198,000 when filing jointly); was not required to report income in 2019 to the IRS; or received a stimulus check pursuant to the CARES Act;
• The individual is unable to pay their full rent due to a number of factors that remain unconnected to COVID-19;
• The individual is using best efforts to make timely partial payments; and
• 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 setting because the individual has no other available housing options. 

THE LAWSUIT:

This month, the National Apartment Association joined the New Civil Liberties Alliance (NCLA) in their lawsuit challenging the U.S. Centers for Disease Control and Prevention’s (CDC) national eviction moratorium. The CDC’s overreaching order directly harms the apartment industry and jeopardizes the long-term viability of rental housing. Rental housing providers, especially small “mom-and-pop” owners, do not have the ability to absorb delinquent rent and still pay their bills required to keep communities operational and Americans in their apartment homes.

“The suit, Richard Lee Brown, et al. v. Secretary Alex Azar, et al., argues that rental housing providers have been irreparably damaged by the CDC order and its unwarranted overreach. Federal agencies do not have powers to waive state laws and the CDC has encroached on private property rights with no legal authority. Under the order, many rental housing providers are unable to collect rent, including rental debt, which limits the ability to pay taxes, mortgages, insurance and utilities and provide contracted services to other residents who have paid their rent.

Throughout the COVID-19 pandemic, NAA has called for direct rental assistance, which is the only policy that keeps people housed and directly addresses the needs of owners and operators alike. Despite continued calls for this much needed relief from a chorus of voices, including renter advocates and real estate groups, Congress has failed to enact direct rental assistance. This inaction, paired with the CDC eviction moratorium, devastates the industry in the short-term and furthers the housing affordability crisis, to the detriment of the broader economy in the long-term.” 

FHA & FHFA ANNOUNCE SINGLE-FAMILY MORATORIA EXTENSION: 

The Federal Housing Administration (FHA) and Federal Housing Finance Agency (FHFA) have extended their single-family only eviction moratoria until at least December 31, 2020. These protections apply to foreclosures and evictions in single-family homes with federally-backed mortgages through these agencies. FHA’s announcement continues to bar evictions of persons from FHA-insured single-family properties except for eviction actions against occupants of legally vacant or abandoned properties. FHFA’s eviction moratorium applies to properties that have been acquired by the Enterprises (Fannie Mae and Freddie Mac) through foreclosure or deed-in-lieu of foreclosure transactions. 

STATE AND LOCAL LEVEL: 

The new CDC Order has blocked the State Courts from processing all non-emergency evictions.      

Landlord/Tenant Court Dockets:

State courts continue to operate on a “phase base” schedule as well.  

St. Louis County and St. Louis City are currently handling a majority of cases remotely and both remain at  Phase 1. Phase 1 does not significantly change from those permitted in Phase 0.  St. Charles County is currently operating at Phase 2 and has resumed many in-person hearings.   Each court has experienced temporary shut-downs when presented with COVID outbreaks within their respective court. 

We continue to encourage Property Managers to work with tenants that may have lost their job because of forced business closures.  

SLAR vs. City of Florissant: 

SLAR was unsuccessful in their suit against the City of Florissant regarding an ordinance that initially violated various aspects of due process with respect to business license requirements and criminal activity.  At the onset of the suit, the original ordinance did not allow for a proper and efficient appeals process however in the 2 years that passed since the filing of the suit, Florissant did amend their ordinance to comply with the very issues presented in the suit.  SLAR is reviewing the holding for appealable issues.           

 Some Good News: 

SLAA was successful in the passage of their bill regarding Emotional Support Animals!  Despite everything that could have easily derailed our efforts and momentum with the state legislature, we were successful in having our bill passed. It passed as a stand-alone bill in SB 644 and as an amendment to SB 656 relating to veterans. Not only is this a win for our members on the immediate issue of Emotional Support Animals, but it’s a boost to SLAA in that we continue to grow and foster a positive image with our states legislators.  This is crucial for an association such as ours, that continues to grow and continues to take on the important issues that our industry faces.

On our Radar:

SLAA will continue to provide updates via our website as the era of COVID continues to bring swift change to the way we conduct business.  We are gearing up for a new legislative session (2021) and look forward to the session throws our way.