Save Tenant Placeholder with airSlate SignNow

Sign leaserental agreement

can landlords still evict tenants while the cdc moratorium is in place the answer is yes and in this video i'm going to explain exactly how but i know what some of you are thinking why can't we just wait until the end of the year when the cdc moratorium is set to expire and then we don't have to worry about it anymore well i hate to break it to you but chances are that the cdc is going to extend its moratorium for at least a couple more months right now cases are spiking across the country governments are again shutting down schools and businesses and the biden administration is poised to take over the white house given all these factors it's highly unlikely that the cdc is going to allow its moratorium to expire on december 31st so if you're a landlord you're going to want to pay attention to this video and watch it all the way through let's do it [Music] hey guys if we're just meeting my name is vitali volpoff i'm a practicing attorney an active real estate investor and a part owner of a real estate brokerage in upstate new york on this channel i discuss relevant legal concepts as well as best strategies and tips for real estate investing and personal finance if you're new to the channel consider subscribing and hitting notification bell so that youtube notifies you of all my future content if you enjoy the content in this video hit the like button and comment down below and as always whenever i'm discussing legal concepts just remember nothing that i say in this video should be construed as legal or financial advice you should always consult with your own attorney and your own advisor before making any legal or financial decisions last but not least the views and opinions that i expressed in this video are my own alone and don't necessarily reflect those in my law firm or any of my business partners so with that said let's get into the video all right so before i talk about the cdc eviction ban i think it's really important to first understand the relationship between the cdc eviction ban and other state or municipal bans that are in place around the country according to the terms of the cdc ban that ban will only apply if the local or state bans are less restrictive less favorable to the tenants than the cdc ban so if the state laws or governor's executive orders are more helpful to tenants then the court will apply those and will not use the cdc eviction ban and so in those circumstances it's completely irrelevant to landlords whether or not they can find a loophole in the cdc eviction ban because that eviction ban will simply not be relevant right now there are 30 states across the country that do not have any eviction bans in place now there may be cities within those states that do have eviction bans but those are very difficult to track and compile and i haven't looked specifically into those but i can tell you that there are at least 30 states that don't have any statewide eviction bans and there are approximately 20 states that have varying degrees of bans everything from complete bans on evictions to some variations of what the cdc ban provides if you guys are interested in learning about bans in your state i'm going to put a link in the description down below which has a pretty good rundown of every single state and has helpful links to state websites that talk about their local bans so with regard to the cdc eviction ban this was originated in a cdc order which was done in conjunction with the department of health and human services the order was issued and went into effect on september 4th 2020 and it's supposed to expire on december 31st 2020. now as i mentioned in the beginning of this video i personally think that this order is likely to be extended i think there is an extremely high likelihood that the order will continue or be continued by the cdc and the hhs and i also think that it's possible that not only will they continue this order but they may actually expand its parameters as i'm going to talk about in a minute the cdc order is actually pretty limited in its scope there are many different bases for evictions that are not covered by the cdc order and the one base that is covered by the cdc order has a lot of exceptions and caveats to it so what does the cdc order actually say and what does it require well the cdc order says that those individuals who are considered covered persons which is a defined term under the cdc order are prohibited from being evicted by their landlords or anyone who has a right to evict them from the property as long as certain specific conditions are met the main requirement of the cdc order is that a person who's looking for the protection of the order must first submit to their landlord a declaration which contains some very specific factual statements to which they must swear under the penalties of perjury once they do that they technically become a covered person under the regulation and they cannot be evicted for any reason relating to non-payment the cdc has published a sample declaration which we can take a look at to see exactly what it is that a tenant is attesting to so as i said the declaration that the tenant is making is done under the penalties of perjury and so if a tenant lies on this declaration they could technically be subject to criminal prosecution so in relevant part the declaration provides that i certify under penalty of perjury pursuant to 28 usc section 1746 that the foregoing are true and correct bullet number one i have used best efforts to obtain all available government assistance for rent or housing and available government assistance is defined as any governmental rental or housing payment benefits available to the individual or any household member bullet number two is that i either expect to earn no more than 99 000 in annual income for calendar year 2020 or no more than 198 000 if filing a joint tax return i was not required to report any income in 2019 to the irs or i received an economic impact statement a stimulus check pursuant to section 2201 of the cares act now with the second bullet point it's any one of these three things as long as the tenant qualifies under one of them it's sufficient for them to satisfy this bullet point so if they're single and they're earning less than 99 000 they would qualify if they're married and they're earning less than 198 000 with their spouse they're also qualified if they didn't make enough income in 2019 to be required to file taxes then they would also qualify even if they're currently in 2020 making more than 99 000 if they're single or making more than 198 000 if they're married and filing jointly and lastly even if they did make enough income in 2019 and they did file and even if they make more than 99 000 if they're single and more than 198 thousand dollars if they're married filing jointly but they receive the stimulus payment this year in 2020 then they would still qualify under the income requirement bullet number three is that i am unable to pay my full rent or make a full housing payment due to substantial loss of household income loss of compensable hours of work or wages layoffs or extraordinary out-of-pocket medical expenses and they define extraordinary medical expenses as any unreimbursed medical expense likely to exceed seven and a half percent of one's adjusted gross income bullet number four is that i am using best efforts to make timely partial payments that are as close to the full payment as the individual circumstances may permit taking into account other non-discretionary expenses bullet number five if evicted i would likely become homeless need to move into a homeless shelter or need to move into a new residence shared by other people who live in close quarters because i have no other available housing options and the cdc defines available housing as any available unoccupied residential property or other space for occupancy in any seasonal or temporary housing that would not violate federal state or local occupancy standards and that would not result in an overall increase of household costs to you the last two bullet points here are basically an attestation from the tenant the second to last bullet point says i understand that i must still pay rent or make a housing payment and comply with other obligations that i may have under my tenancy lease agreement or similar contract i further understand that fees penalties or interest for not paying rent or making a housing payment on time as required by my tenancy lease agreement or similar contract may still be charged or collected and the last bullet point is that i further understand that at the end of this temporary halt on evictions on december 31 2020 my housing provider may require payment in full for all payments not made prior to and during the temporary halt and failure to pay may make me subject to eviction pursuant to state and local laws and then again the tenant attests to understanding that any false or misleading statements or omissions may result in criminal and civil actions for fines penalties damages or imprisonment so once a tenant signs and provides this type of declaration to their landlord the landlord is now under an obligation to refrain from evicting or otherwise removing that tenant but what happens if the landlord violates this order well there are certain penalties that the cdc lists referencing various criminal federal laws the cdc order says the following about the criminal penalties a person violating this order may be subject to a fine of no more than one hundred thousand or one year in jail or both if the violation does not result in a death or a fine of no more than 250 000 or one year in jail or both if the violation results in a death or is otherwise provided by law an organization violating this order may be subject to a fine of no more than 200 000 per event if the violation does not result in a death or 500 000 per event if the violation results in a death or as otherwise provided by law there are a couple of interesting things that i want to point out about this provision first there is a distinction between a violation that results in a death and a violation that does not result in a death it's interesting that the cdc is using this type of terminology to talk about evictions presumably means that if a landlord violates this order and wrongfully evicts a tenant or otherwise removes them from the premises and that tenant or someone else becomes infected with the disease and ends up dying the landlord could be on the hook for the enhanced penalties and additional jail time if they're an individual and if nobody dies as a result of this wrongful eviction then presumably the penalties would be lighter now the other thing that i think is interesting about this provision is the imposition of jail time under these provisions an individual could be subject to jail time of up to one year but there is no corresponding jail time reference with regard to an organization the way this is written it appears that those individuals who are operating their rental properties through an organization like an llc or corporation are not subject to jail time the same way that individuals who own their rental properties in their individual name now this may or may not be the case and i definitely recommend that you consult with a criminal attorney before you make any decisions as to how you want to act and how you want to own rental properties with regard to these eviction bans but it seems to me at least in the way that this is written that individuals who own and operate their properties through entities are somewhat more insulated than individuals who own their property in their personal name in either case because of the huge monetary penalties involved and also the potential for jail time i would highly recommend that anyone who is contemplating evicting any tenants right now while the cdc order is in effect consult with an attorney and do so through an attorney now is not the time for landlords to engage in self-help and try to do this on their own i'm not saying this because i'm an attorney or because i'm standing to benefit in any way i'm just telling you that if you're trying to evict the tenant right now the safest course of action given this moratorium and given these penalties is for you to do so with professional help you can decide to do whatever you want of course but that is my opinion both as a landlord and as an attorney so with all that said let's talk about the ways that landlords can still evict tenants despite the cdc moratorium and of course assuming that the state or the locality where the landlord and property are located allows evictions the first place we should look at is the cec eviction order itself there is a provision in that order that talks about renters or homeowners declaration this is a declaration that i mentioned earlier in this video in that section there are two sentences that read as follows these persons talking about the tenants are still required to pay rent and follow all the other terms of their lease and rules of the place where they live these persons may also still be evicted for reasons other than not paying rent or making a housing payment now the cdc order here is specifically saying that evictions are still possible for things that are not related to non-payment of rent additionally the cdc on october 9 2020 issued a guidance in the form of a frequently asked questions bulletin that talked about this in even more detail one of the questions asked in that bulletin was can i still be evicted for reasons other than not paying full rent and this is what the cdc said yes you may still be evicted for reasons other than not paying full rent or making a full housing payment the order does not prevent you from being evicted for number one engaging in criminal activity while on the premises number two threatening the health or safety of other residents number three damaging or posing an immediate and significant risk of damage to property number four violating any applicable building code health ordinance or similar regulation relating to health and safety or number five violating any other contractual obligation of attendance lease other than the timely payment of rent or similar housing-related payment including non-payment or late payment of any fees penalties or interest i think it's important to break each of these down in more detail with regard to the first ground criminal activity a landlord can evict the tenant if they can prove or show that a tenant engaged in criminal activity on their premises this is even if that tenant has already provided the landlord a declaration saying that they're not paying their rent because they are qualified and because of all those reasons that we went through even if a tenant did that but you have evidence that the tenant committed a criminal act on your premises you might still be able to evict that tenant with this ground as with many of the other grounds you need to be able to prove it so it's not just that you have a hunch that a tenant is committing a crime on your premises it's not that you have a suspicion that they're doing so you need to have some actual evidence that they've done so so a police report might be helpful additionally if you have camera footage for example of a tenant doing something illegal or criminal you might be able to use that as a ground or if a tenant actually admitted that they did something criminal on the premises this could be stealing property this could be using or selling illegal drugs it could be any number of different things but the key thing here is that you have to be able to prove in court that the tenant actually engaged in criminal activity the burden is on you if you're bringing the eviction and if you can't prove it you won't be able to get the eviction with regard to number two you have to be able to prove that a tenant is doing something on the premises that is threatening the health or safety of other residents again this is something that you're going to need to have proof of in order to win an eviction on this ground the next one damaging or posing an immediate and significant risk of damage to property is pretty self-explanatory an example of this might be a tenant who breaks a window or in an argument with their spouse punches a hole through a door or it might also be a text message or a threat that is made to you or someone else saying that they're going to damage property on the premises if you have concrete evidence that a tenant is doing this you may be able to get an eviction on this basis an example of violating applicable building codes or health ordinances or similar regulations might be a tenant who removes smoke detectors or co alarms because they're smoking in the property as long as you can show that local health codes and building codes require there being smoke detectors at the property and you can show that the tenant removed those smoke detectors you might be able to get an eviction on this basis as well finally number five is pretty much a catch-all provision under this ground you may be able to obtain an eviction if you can show that a tenant violated some contractual obligation owed to you other than non-payment of rent in my opinion violation of other contractual obligations under this prong should include holdovers a holdover tenant is a tenant who stays over in the apartment beyond the expiration of the durational term of their lease for example a tenant had a one-year lease that was set to expire on september 30th come october 1st the tenant was supposed to move out of the property and relinquish possession back to the landlord but the tenant remained in the property beyond the durational term of the lease in that case the landlord would not be evicting attendant for non-payment of rent but would rather be evicting them for failing to abide by the terms of the lease and vacating on september 30th now there are some tenant advocacy groups like the national housing law project that have argued that this provision of the cdc order does not mean that hold over evictions are allowed their argument is that once a durational term of a lease has expired a tenant can no longer violate any contractual obligations because they simply don't owe any contractual obligations to the landlord i think that's plain wrong depending on how a lease is written many other obligations can survive the durational termination of the lease i think it goes without saying that a tenant is violating a contractual provision when they fail to vacate the property when their lease required them to vacate it so i would definitely include holdovers as a ground for eviction under criteria number five so it's pretty clear from the cdc that tenants can still be evicted despite the cdc order for any grounds other than non-payment but it actually potentially gets even better for landlords as i mentioned earlier in order to benefit from the protections of the cdc order a tenant is required to provide the landlord with the signed declaration if a tenant fails to provide the landlord with a signed declaration even if the eviction would be for non-payment of rent they would not be protected by the cdc order in its frequently asked questions guidance the cdc went even further in clarifying this point specifically the cdc said that each adult listed on the lease rental agreement or housing contract should complete the declaration in certain circumstances such as individuals filing a joint tax return it may be appropriate for one member of the residence to provide an executed declaration on behalf of other adult residents party to the lease rental agreement or housing contract at issue but as this guidance reads the default here is that each adult member of a household is supposed to sign this declaration in order for it to be valid under some circumstances as the guidance says someone can sign on behalf of someone else if they're filing a joint tax return but if they're not filing a joint tax return and not all of the adult members of a household have signed the declaration then technically they did not comply with the cdc's requirement and therefore none of them should be covered by the cdc order banning evictions now a judge may or may not agree with this argument but this is certainly something that a landlord's attorney should be raising if the declaration was not properly completed by everybody in the household so the bottom line here is that if a landlord does not receive a declaration or the landlord receives a declaration but it is not signed by all of the adult members of a household the landlord may still evict those tenants for non-payment of rent even though the cdc order remains in effect but it potentially gets even better than that in response to the question what can a landlord do if a tenant has declared that they are a covered person under the cdc order but the landlord does not believe that the tenant actually qualifies the cdc says as follows the order does not preclude a landlord from challenging the truthfulness of a tenant's declaration in any state or municipal court the protections of the order apply to the tenant until the court decides the issue as long as the order remains in effect additionally in one of the lawsuits brought against the cdc with regard to this order cdc's council on behalf of cdc stipulated some very interesting facts in the case of kbw investment properties llc versus secretary alex azar brought in the southern district of ohio the parties referenced representations made by cdc's council in another case this is one that i covered in the prior video and you guys can find it in the description below and in the youtube card above where the cdc council stated as follows the cdc order does not prevent a landlord from filing an eviction action in state court first the order expressly permits eviction for various reasons other than on payment of rent which we've already covered second nowhere does the order prohibit a landlord from attempting to demonstrate that a tenant has wrongfully claimed its protections this is very important for this point the stipulation further provides that the federal defendants this includes the cdc have stated that the cdc order does not prevent a landlord from seeking judicial review of a tenant's right to remain on his or her property including seeking an evidentiary hearing to challenge the veracity of a declaration provided that no actual eviction occurs while the order remains in effect and applies to the tenant plaintiff and federal defendants hereby stipulate the dismissal of this action against the federal defendants with prejudice what does all this mean well what it means is that even if a tenant provides a landlord with a declaration and even if every single person that's supposed to sign that declaration actually signs that declaration the landlord is not required to simply accept this declaration at its face value a landlord is allowed to begin an eviction proceeding for non-payment of rent and challenge the veracity of this declaration if they believe that there's some basis to challenge that declaration again this is something that if you're going to pursue it you should be pursuing it with an attorney an attorney is going to be trained they're going to know what questions to ask what things to probe how to put a tenant on the stand and to cross-examine them effectively if we go back and look at the declaration there are several things here in my opinion that a landlord's attorney can challenge a tenant on for example the bullet point number one that a tenant used best efforts to obtain all available government assistance for rent or housing the landlord's attorney can put the tenant on the stand and ask them what have you done what government programs are you aware of where did you apply and see what kind of answers the tenant gives if the tenant does not have very good answers to these questions if the tenant does not know anything about available housing they never looked into housing they never tried well then it's not true that they use best efforts to obtain available government assistance and if it's not true that they use best efforts to obtain government assistance then they couldn't have sworn to the truthfulness of this declaration and the entire declaration should be thrown out that would be the argument from the landlord's attorney in court during this evidentiary hearing similarly landlord's attorneys can question tenants about other parts of the declaration for example a landlord's attorney can question a tenant about their inability to make their rent payments they can question them about their loss of income or hours of work or layoffs or any extraordinary medical expenses the answers that a tenant provides may undermine the veracity of their declaration similarly a landlord's attorney can also question a tenant about whether or not they're using best efforts to make timely partial payments to the best of their abilities if the tenant has not made any payments in the last six months but they've done other things with their money perhaps spending their money on non-discretionary expenses well then again this undermines their declaration with regard to that bullet point the point of this is that according to the cdc a landlord could challenge the veracity of the declaration and potentially get it thrown out by a judge in court if that happens the landlord would be able to evict a tenant for non-payment of rent and as i've said this about five times in this video you should not be trying to do this alone you should be using a competent qualified eviction attorney to help you if you're going to go down this route there are ways to still evict tenants despite the eviction moratorium in place but you need professional help in order to do so so that's going to do it for the topic of this video if you have any questions about anything that i said drop them in the comments down below and i will try to answer them to the best of my ability if you're a landlord and you're frustrated with the way the eviction bans are going across the country right now i don't blame you if you're also concerned about investing more of your money into real estate deals you may want to hold off until things improve but while you wait you should also consider investing your money in other asset classes to allow it to continue to grow if you're interested in investing in stocks bonds etfs and mutual funds i would highly recommend a commission free platform like weeble right now weibo is running a free promotion where you would receive up to four free stocks valued up to sixteen hundred dollars if you sign up for weeble using my link in the description below you would receive two free stocks value between two dollars and fifty cents and two hundred fifty dollars just for signing up you would get an additional two free stocks value between eight dollars and sixteen hundred dollars each if you deposit one hundred dollars on the platform there's absolutely no risk to you and you can always withdraw your money once your free stocks post or you can continue using the platform like i do for investment purposes if you sign up using my link during the promotion period you'll be guaranteed to receive 21 free dollars worth of stocks and you would also be supporting my channel and allowing me to continue bringing great content you've come to expect so with that said if you enjoyed this video hit the like button and if you haven't yet subscribed to my channel please subscribe so you don't miss any of my future content thanks again for watching and i'll see you in the next one take care [Music] you