We have received numerous calls from landlords and tenants regarding a landlord’s right to recuperate delinquent rent and possession of a property during this unfortunate pandemic. Fighting our instinct to launch into the value of a 3-Day Notice under Section 83.56, Fla. Stat., our response generally explains the CARES Act, Governor DeSantis’ Executive Orders, the Florida Supreme Court Administrative Order 20-17, the Center for Disease Control and Prevention (CDC) Order and Declaration Form, and any subsequent legislation or Orders that extend or modify pertinent timelines, restrictions or requirements. The short of it is that there is not much a residential landlord can do to recover possession of a property if the tenant has availed him or herself of the latest CDC Order, and the landlord seeks possession because of the non-payment of rent.
A. The Eviction Moratorium in General
Under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), within 120 days of March 27, 2020, the enactment date of the CARES Act, the lessor of a covered dwelling may not (1) file a lawsuit, or request that another person file a lawsuit on the lessor’s behalf, to regain possession of the covered dwelling because the tenant failed to pay rent, or (2) charge any fees, penalties or other charges to the tenant that are related to the failure to pay rent.[i] The evictions moratorium under the CARES Act was therefore July 25, 2020. Nevertheless, a landlord cannot file for possession of a covered dwelling after July 25, 2020, until after the landlord gives the tenant a 30-day notice to vacate and such notice expires.[ii] If the tenant fails to vacate and to pay the outstanding rent after the expiration of the 30-day notice, then and only then may a landlord file a lawsuit to recover possession of the property due to the non-payment of rent. The 30-day notice requirement applies regardless of when the landlord actually begins the eviction process. In this manner, the CARES Act has a lingering beneficial effect for tenants struggling due to financial burdens of the COVID-19 pandemic.
B. Does the CARES Act Apply to Me?
The relevant section of the CARES Act that governs the eviction moratorium contains a hefty list of definitions to determine to what types of landlords the moratorium applies. You may have noticed the repeated use of “covered dwelling” in the above section to describe the type of building a landlord must own for the eviction moratorium to apply. A “covered dwelling” is “a dwelling that is occupied by a tenant pursuant to a residential lease, or without a lease, or with a lease terminable under State law, and is on or in a covered property.”[iii] A “dwelling” is “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families, and any vacant land which is offered for sale or lease for the construction or location thereon of any such building, structure, or portion thereof.”[iv] A “covered property” is any property that participates in a covered housing program as defined in section 12491(a) of title 34,[v] or the rural housing voucher program under section 1490r of title 42,[vi] or has a federally backed mortgage loan, or federally backed multifamily mortgage loan.”[vii] The likely most common type of covered property are those that have a federally backed mortgage loan such as those under Fannie Mae or Fannie Mac, both of which have provided an online search tool to determine if your mortgage is with either of them.[viii] Other federally backed mortgages are those with the Department of Housing and Urban Development (HUD) and the Department of Veteran Affairs (VA). The only distinction between a federally backed mortgage loan and a federally backed multifamily mortgage loan is that the latter applies only to residential multifamily real property designed principally for the occupancy of 5 or more families, as opposed to 1 to 4 families, which is the cutoff for a simple federally backed mortgage loan. If your property falls within the definitions in the CARES Act, then you must comply with the federal eviction moratorium and the 30-day notice requirement.
Governor DeSantis Florida Executive Order 20-94
Florida State-Wide Eviction Moratorium
The eviction moratorium under Florida Executive Order 20-94 is much more straightforward than its federal counterpart. For forty-five (45) days from the execution of the Order on April 2, 2020, all Florida statutes that provided for a residential eviction cause of action due solely to the non-payment of rent were suspended.[ix] The Governor extended this initial moratorium three times, with Florida Executive Orders 20-121, 20-137, and 20-159, making the expiration of the moratorium August 1, 2020.[x] Nevertheless, Florida courts still took swift action to ensure that landlords were aware that they must comply with the 30-day notice requirement of the CARES Act, and implemented compliance certification procedures for the landlord to attest that the CARES Act either (a) does not apply to the property at the time of filing the eviction lawsuit, or (b) does apply and the landlord complied with all notice requirements under the Act. A failure to comply could be turned into a condition precedent and serve as a tenant’s defense to the action.
As predicted, Florida extended its eviction moratorium first with Executive Order 20-180,[xi] then with Executive Order 20-211,[xii] implementing a current expiration of October 1, 2020. These Orders, however, amended Section 2 of Executive Order 20-94 to only “suspend and toll any statute providing for final action at the conclusion of an eviction proceeding under Florida law solely when the proceeding arises from non-payment of rent by a residential tenant adversely affected by the COVID-19 emergency.” Thus, a landlord could file an eviction proceeding, but could not remove the tenant upon a final judgment. As of the date of this article, though, the state eviction moratorium has not been extended.
CDC Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19
New Federal Agency Protection
Issued under Section 361 of the Public Health Service Act, the CDC used its regulatory powers to promulgate an Order[xiii] to invoke a country-wide residential eviction moratorium effective through December 31, 2020, to prevent the further spread of COVID-19. To invoke the protections of the Order appears quite simple. A tenant must read the CDC Declaration Form[xiv] instructions and the seven (7) enumerated statements, attest that the statements are applicable to him or her under penalty of perjury, and then return the Form to their landlord. Each tenant residing in the property must complete the Form. This should then prevent the landlord, property owner, or any other person with a right to evict the tenant from filing a lawsuit in a Florida state court until the expiration of the CDC Order. The CDC Order does not create a post-expiration waiting or notice period. As with the other eviction moratoriums, the CDC Order applies only to evictions premised on the non-payment of rent. Importantly, though, the CDC Order may supersede a state mandated eviction moratorium where the state moratorium does not provide “the same or greater level of public-health protection than the requirement listed” in the CDC Order. Now that the Florida Executive Order 20-211 is expired, the CDC Order is the most formidable hurdle to a landlord’s recovery of possession based on the non-payment of rent.
Supreme Court of Florida Administrative Order 20-17
Expiration of Florida State-Wide Stay on Writs of Possession
There were of course pending residential eviction actions at the beginning of the state of emergency that the Florida court system had to decide how to handle. Likely in consideration of this fact, on March 24, 2020, the Supreme Court of Florida entered Administrative Order 20-17 concerning COVID-19 emergency measures in the state courts of Florida, which addressed writs of possession. A writ of possession is a court’s order to a county sheriff to remove a tenant. Specifically, on page 7 of Order 20-17, the Florida Supreme Court declared that the requirement under “Florida Rule of Civil Procedure 1.580(a) for the clerk to issue a writ of possession “forthwith” shall be suspended through the close of business on Friday, April 17, 2020, or as provided by subsequent order.”[xv] In other words, no county sheriff could be ordered to remove a tenant until the Florida Supreme Court lifted this suspension. The Florida Supreme Court then extended the suspension with Administrative Order 20-23 and through four (4) amendments to this Order, providing an expiration date of June 30, 2020, in Amendment 3, which carried into Amendment 4.[xvi] Amendment 5, entered on July 2, 2020, accordingly deleted the section that implemented the state-wide suspension of the issuance of writs of possession under Florida Rule of Civil Procedure 1.580(a).[xvii] In essence, then, the primary factor at this junction for a landlord to consider regarding the filing of an eviction action due to the non-payment of rent is the expiration of the eviction moratoriums, whether under Florida state or federal law, as applicable.
Is it still possible to file a lawsuit under Florida law given the eviction moratoriums to simply recover the past due rent without actually evicting the tenant? The short answer is yes, but if a tenant cannot pay pre-judgment, it is not likely that he or she will be able to pay even once a judgment is obtained. It would be prudent to consider waiting for the end of the moratoriums to enable both the recovery of damages and possession of the property, and therefore the ability to enter into a new lease with a tenant who is able to pay. This may be a better use of time and money. In addition, this provides the landlord an opportunity to accept partial rent payments pending the expiration of any applicable eviction moratorium.
Recall that the eviction moratoriums apply only to those evictions that are brought due to the non-payment of rent for residential, i.e., not commercial, properties. Therefore, if a tenant violated the lease, for example, by disturbing the peace or failing to maintain the property as required and permitted by law, then a landlord may still follow the steps under Section 83.56, Fla. Stat., to notice the tenant of the violation and subsequently file an eviction action if necessary. Some Florida circuit courts, however, are screening even these types of evictions to ensure that the alleged violation is not a guised attempt to evict based on the non-payment of rent.
COVID-19 and its globally-felt impact on our economic stability make this is a difficult time for everyone. We wholeheartedly advocate showing understanding and kindness, in addition to landlords and tenants engaging in productive conversations, prior to either side taking any action. To the extent that such conversations unfortunately break-down or cannot fully resolve the issues, the above discussion represents the legal remedies for landlords to make a business decision on how to proceed with the tenancy if the tenant is unable to pay once the applicable eviction moratoriums expire.
Updated: October 19, 2020.
[ii] 15 U.S.C. § 9058 (c).
[iii] 15 U.S.C. § 9058 (a).
[vii] 15 U.S.C. § 9058 (a)(2).
Fannie Mae – https://www.knowyouroptions.com/loanlookup#