This information is provided by the law firm McDermott Will and Emery.
The Federal government, states, cities, and counties are taking steps to minimize the impact of the public health emergency on tenants and homeowners, including placing moratoriums on evictions, and prohibiting late rent fees. Below are frequently asked questions (FAQs) pertaining to homeowner and tenants’ rights during the public health emergency.
As background, tenant and homeowner rights are governed by a patchwork of Federal, statem, and local laws and your particular contractual arrangement(s). As such, tenant and homeowner rights and obligations vary for a number a reasons, including the rules and regulations that apply to your local jurisdiction (community) and by your contract (which differ by landlord and lender).
While not an exhaustive list of resources, please see the chart below for a list of resources that may be helpful.
For additional information and for information specific to your jurisdiction, you may want to contact: (1) state departments of housing or department of health, or state COVD resource pages, (2) local government (city, county, municipal) guidance, (3) guidance from state and local courts, (4) not-for-profit organizations / charities, (5) an attorney, and (6) your landlord.
The below FAQs are for Educational Purposes Only and are not legal, financial, or medical advice. Ultimately, you should consult with state and local resources to determine the applicable protections and procedures.
- What do I do if I can’t afford this month’s rent? Can I be evicted? Do I have any protection from eviction?
- Please consider contacting your landlord as soon as you realize you may not be able to pay rent understanding that your landlord may have certain rights if you concede you cannot pay rent. That said, it’s not unreasonable to ask if partial payments will be accepted until the rent is paid in full. If the landlord agrees to a payment plan, forbearance, or some other accommodation, ask your landlord to commit the accommodation to an agreement or other document memorializing the commitment.
- In many jurisdictions, landlords may be prohibited from filing new eviction complaints and evicting any tenant during the public health emergency and for a period of time after the end of the public health emergency.
- However, if you have not been able to pay your rent in certain states a landlord can start the eviction process. This does not mean you will be removed immediately. If you receive a court summons, go to court, and if you can provide written proof that you have been affected by COVID-19, you may be able to get a postponement for nonpayment of rent.
- Has my state or local government put a temporary stop on evictions? If so, when can evictions resume?
- Many states have temporarily paused eviction proceedings during the public health emergency, and for a period of time immediately following the public health emergency, pursuant to state emergency declarations. However, eviction proceedings may proceed following the end of the public health emergency. Note, several state declarations may have expired; therefore, eviction protections pursuant to the state emergency declaration may no longer be applicable.
- If I am active duty military, are there additional protections from evictions?
- Active duty military members retain protections from evictions pursuant to the Servicemembers Civil Relief Act (SCRA). Generally, except by court order, a landlord may not evict a servicemember or the dependents of a servicemember during a period of military service from a residence for which the monthly rent does not exceed the maximum amount provided by the SCRA. The maximum monthly rent amount is adjusted annually by the Department of Defense.
- In any eviction case, a court may in its discretion, and must if requested by the servicemember, grant a delay of proceedings for up to three months if the servicemember’s ability to pay the agreed rent is materially affected by the military service or adjust any obligation under the lease. Note, however, the court may also grant equitable relief to the landlord, but local ordinance protections may still apply.
- If I am protected from a non-payment eviction, do I still have to pay the rent?
- Yes, as best as you can, because any rent you do not pay now, will be due later. If you cannot keep up with your rent, you should let your landlord know, and try to pay the portion of rent you can pay.
- How does the eviction process work? Can I be evicted if I have only been given notice by my landlord?
- Eviction procedures vary by jurisdiction (from locality to locality). You should check the rules in the jurisdiction of the property that is of concern. A number of local governments are offering educational resources to those that are impacted by Covid-19. Please see the following chart for examples: [SEE ATTACHED]
- Do I have to pay late charges?
- In most jurisdictions, a landlord may charge a late fee if such fee is provided for in the agreement between the landlord and tenant. However, some states may require a cap on late fees during the public health emergency.
- Can my landlord increase my rent during the public health emergency?
- State and local governments vary on whether a landlord can increase your rent. In many jurisdictions, if you live in unsubsidized, private housing (rent-controlled or not), your landlord cannot increase your rent during the public health emergency. Your landlord cannot issue you a rent increase notice during the public health emergency, even if the rent increase would take place after the end of the emergency. In many jurisdictions, if you live in subsidized housing (e.g., public housing, housing voucher, etc.), your portion of the rent can increase during recertification.
- My landlord wants to enter my home, but I do not want people in my home during this crisis. Can I stop my landlord from entering?
- In many jurisdictions, for non-emergency repairs, landlords may access your unit but should provide you with advanced notice, and should enter your property during agreed upon times. Your lease may also grant landlord certain access rights and provide certain notice requirements. You may be able to request that non-emergency repairs be addressed after the emergency, especially if you have a condition that puts you at risk of contracting COVID-19. Your landlord must access your property to fix urgent repair issues. Emergency repairs include fire hazards, water leaks or flooding, sewage backups, or anything else that affects your living conditions.
- The landlord is telling me I cannot use some of the common areas because of the COVID-19 crisis, what can I do?
- Generally, a landlord may have the authority to restrict access to, or place limitations on access to, common areas. Your landlord may also be required by local law to close or place certain restrictions on common areas.
- The conditions in my property are terrible and my landlord will not fix anything, what can I do?
- Generally, landlords are still obligated to maintain the property in a livable condition. For non-emergency repairs, landlords may access your unit but should provide you with advanced notice, and should enter your property during agreed upon times. Your landlord must fix urgent repair issues. State and local authorities may regulate your landlord and may be able to provide assistance.
- The landlord has issued a policy that requires me to wear a mask, do I need to wear it?
- Generally, a landlord may have the authority to adopt a policy and/or rules and regulation mandating the use of face masks in the common areas to protect the health, safety and welfare of tenants, particularly if such requirements are adopted pursuant to CDC and other public health authority guidelines. It should be noted that many states and local governments require the use of face masks in public places, especially where people cannot socially distance a minimum of 6 feet.
- Will the public health emergency alter my repair and maintenance obligations under my lease?
- Generally, the public health emergency may not alter your repair and maintenance obligations under your lease. However, tenants should discuss timelines for repair and maintenance of their property with the landlord.
- Can I break my lease?
- If you are in the middle of an unexpired lease, unless otherwise set forth in your lease agreement, generally you must obtain your landlord’s permission to break your lease without penalty. It is common for a landlord to require you to pay rent for the remainder of your lease unless they are able to find a new tenant to “replace” you. However, please review your lease as it is customary in certain jurisdictions to have an agreed upon early termination right with a stipulated early termination fee.
- Can my landlord require that I allow prospective renters or purchasers into my apartment during the declared COVID-19 emergency?
- Talk to the landlord to share your concerns and ask if there is another solution, such as a video walk through. Most leases have a provision that allows the landlord to bring prospective tenants through the property under specific conditions, and it is ultimately up to the landlord to determine whether to enforce this provision or to take another approach. If the landlord decides to bring prospective renters into your apartment, it is important that they take all appropriate health and safety measures and follow state and local housing and safety guidelines.
- Has my state or local government put a moratorium on foreclosures? If so, when can foreclosures resume?
- Many state and local governments enacted legislation or emergency declarations that mandate a moratorium on foreclosures and foreclosure-related evictions. The moratoria may be effective during the public health emergency, and for a period of time immediately following the public health emergency. Generally, foreclosure proceedings may proceed following the termination of the public health emergency. Note, several state declarations may have expired; therefore, foreclosure protection pursuant to the emergency declaration may no longer be applicable.
Click here for more resources: https://penfedfoundation.org/wp-content/uploads/2020/11/PenFed-Foundation-Housing-Resources-003.pdf.