Dueling Moratoriums!

Governor DeSantis signed an executive order earlier this which paused evictions in Florida.  The Florida Eviction Moratorium has been extended a number of times.  It is due to expire on October 1, 2020. 

However, the CDC entered the eviction fray earlier this month.  The CDC issued a temporary National Eviction Moratorium on September 4, 2020.  The National Eviction Moratorium expires January 1, 2021.

Florida Eviction Moratorium

We have previously discussed the limitations contained in the current Florida Eviction Moratorium. 

First, the Florida Moratorium only applies to tenants that face eviction for nonpayment of rent.  As such, tenants may be evicted for non-monetary breaches of their lease.  For instance, a landlord could proceed with an eviction alleging an unauthorized subletting of the property or too many pets. 

Second, only tenants adversely affected by COVID-19 are protected under the Florida Moratorium.  There must be a connection between COVID-19 and the tenant’s failure to pay rent.  Further, the tenant may lose the moratorium protection when he or she returns to work. 

Third, the Florida Moratorium only prevents “Final Action” in the eviction proceeding.  Landlords may file and proceed with pending eviction lawsuits.  

CDC’s National Eviction Moratorium

The National Eviction Moratorium prevents landlords from evicting a “covered person” from a residential property for non-payment of rent until January 1, 2021. 

A “covered person” is a tenant who provides to her landlord a declaration that:

1. Tenant used her best efforts to obtain all available government assistance for rent or housing;
2. Tenant meets certain income requirements:
   1. Tenant expects to earn no more than $99,000 for 2020 (no more than $198,000 if filing a joint income tax return);
   1. Tenant was not required to report any income in 2019 to the IRS;
   1. Or, tenant received a Stimulus Check under the CARES Act;
3. Tenant is unable to pay the full rent due to loss of income or extraordinary medical expenses;
4. Tenant is using best efforts to make timely partial rent payments;
5. And, eviction would render the tenant homeless or force her to live a close quarter shared living setting (homeless shelter).

The declaration must be made under penalty of perjury and must be provided to the landlord in order for there to be any protection under the National Moratorium.

Moratorium Similarities

The Florida Moratorium and the National Moratorium both apply only to evictions for non-payment of rent.  Neither moratorium prevents a landlord from evicting a tenant for a non-monetary breach of the lease.

Both moratoriums require some COVID-19 caused hardship – loss of income or extraordinary medical expenses.  The failure to pay rent must be connected to COVID-19 in some way. 

And, both moratoriums appear to permit the filing of an eviction lawsuit.  The National Moratorium states that a landlord “shall not evict.”  It does not state that a landlord shall not file an eviction proceeding.   The Florida Moratorium only prevents “Final Action” in an eviction proceeding.

Moratorium Differences

Longevity of Moratorium – The Florida Moratorium expires in October.  The National Moratorium expires next year. 

Extent of Protection – The Florida Moratorium, like the National Moratorium, applies to tenants adversely affected by COVID-19.  However, the protection of the Florida Moratorium may be lost when the tenant goes back to work.  The National Moratorium appears to protect tenants through the end of the year regardless of whether the tenant secures employment after providing the declaration to her landlord. 

Declaration – The Florida Moratorium does not require a particular form be used and provided to your landlord in order to claim that the state moratorium applies in your case.  The National Moratorium requires that the tenant complete the above described declaration and provide it to her landlord.  Absent the declaration, the National Moratorium does not afford any protection to the tenant.

Income Requirements – The Florida Moratorium applies to all tenants of residential properties regardless of their income.  The National Moratorium only applies to those that earned no more than $99,000 in 2019, was not required to file a 2019 income tax return, or received a stimulus check.

Efforts to Pay – The Florida Moratorium is silent as to any efforts by the tenant to obtain rent assistance and make partial rent payments.  However, a tenant must make good faith efforts to do both in order for the National Moratorium to apply. 

Rendered Homeless – The National Moratorium requires that eviction render the tenant homeless or live in a homeless shelter.  The Florida Moratorium has no such requirement for application. 

Does the National Moratorium apply in Florida?

The National Moratorium does not apply in states which have moratoriums providing the same or greater protection.  Does the Florida Moratorium provide the same or greater protection? 

Arguably, the Florida Moratorium does not provide the same or greater protection as the CDC’s National Moratorium due to the longevity and the extent of the protection provided. 

However, the National Moratorium contains many requirements that the Florida Moratorium does not contain.  For instance, the income requirements, best efforts to pay, and homeless requirements are only found in the National Moratorium.  As such, it is not clear whether the National Moratorium applies in Florida.