The novel coronavirus disease (“COVID-19”) has impacted nearly every aspect of life, including residential housing. People living in communal living spaces and apartment buildings need to take particular care to prevent and address community spread. Landlords and tenants alike may be affected by economic uncertainty and strain due to the pandemic. In is therefore crucial that landlords and tenants prepare to respond to the unique issues raised by the spread of COVID-19. This article will highlight some of those concerns and give insight into how landlords and tenants may tackle them.
Building Safety Rules
The Centers for Disease Control and Prevention (“CDC”) has provided basic guidance to limit community spread of COVID-19, including:
- Washing hands often with soap and water (for at least 20 seconds), especially after touching surfaces that are frequently touched by others. If soap and water are not readily available, use an alcohol-based hand sanitizer that contains 60%–95% alcohol
- Cover your mouth and nose with a tissue or your sleeve when coughing and/or sneezing
- Avoid close contact with sick people
- Avoid touching your face, nose, or mouth with unwashed hands
- Stay home when you are sick
- Clean and disinfect frequently touched objects and surfaces
- If any symptoms of COVID-19 are experienced, seek care right away. Before you go to the doctor’s office or emergency room, call ahead and explain your symptoms and any recent travel, and avoid contact with others
Landlords may consider sharing these guidelines with tenants, in addition to updating them on measures management has taken to minimize the chance of spread, such as increased cleaning.
In order to minimize risk, it is also advisable that landlords institute building rules, such as:
- Making tenants aware of the requirements contained in emergency orders issued by state, county and municipal government, as well as CDC recommendations, and requiring compliance with the same
- Closing non-essential shared areas, such as pools or exercise rooms
- Limiting loitering and congregating in any shared areas
- Limiting access to the shared areas to occupants of the building, essential workers and others deemed necessary by the landlord
- Limiting deliveries within the building and requiring certain deliveries to take place outside of the building
- Limiting non-essential interaction between tenants
- Maintaining social distancing in the shared areas
- Creating procedures for tenants to report areas that need to be cleaned due to suspected coronavirus exposures, while maintaining the confidentiality of the names of any tenants that have been diagnosed with coronavirus
Landlords are encouraged to contact a legal professional to assist with adopting or implementing rules or taking enforcement action against a tenant that is endangering the health or safety of others.
Only 69% of apartment tenants had paid their monthly rent by April 5, according to the National Multifamily Housing Council, down from 81% the previous month. This sliding trend may continue for some time as the COVID-19 pandemic persists. Fortunately, the government has taken steps to provide relief to tenants facing eviction due to nonpayment of rent.
As part of the sweeping the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) signed into law on March 27, 2020, immediate protections were put in place for tenants and homeowners facing economic hardship. The CARES Act includes an eviction moratorium, which applies to four (4) categories of property, including: (1) homes that participate in a covered housing program under the Violence Against Women Act (as amended through the 2013 reauthorization); (2) homes that participate in the rural housing voucher program under section 542 of the Housing Act of 1949; (3) homes that have a federally backed mortgage loan; or (4) property with a federally backed multifamily mortgage loan.
Federally backed mortgage loans are those loans owned, insured or guaranteed by the Department of Housing and Urban Development (HUD), the Department of Veterans Affairs, the Department of Agriculture, Fannie Mae or Freddie Mac. The federal eviction moratorium took effect on March 27, 2020 and extends until July 25, 2020.
In addition to the protections afforded by the CARES Act, many states have adopted a mixture of laws, bans and suspensions. For example, in Alaska, California, Maryland, tenants must show proof that their financial hardship is related to COVID-19 in order to be protected from eviction. Colorado and Ohio have left decisions on evictions up to local jurisdictions.
In Michigan, on April 16, 2020, the Supreme Court adopted Administrative Order No. 2020-08, which tracks the federal moratorium on evictions if the tenant is in a covered housing program or the mortgage is federally backed, among other circumstances. The order requires verification that any eviction complies with the CARES Act, including the moratorium through July 25, 2020.
Additionally, on April 17, 2020, Governor Gretchen Whitmer signed Executive Order 2020-54 to allow tenants and mobile homeowners to remain in their homes during the COVID-19 pandemic, even if they are unable to pay their rent. The order does not halt the obligation to pay rent, nor the right to receive it and it contains an exception where a tenant poses a “substantial risk to another person or an imminent and severe risk to property. This order is set to expire on May 15, 2020.
Notwithstanding the eviction moratorium, if a tenant is facing financial difficulty with making those payments, it is probably best to request an arrangement with their landlord or leasing agency. Landlords in turn should attempt to approve those requests if cash flow permits. It is better to receive even partial payments than none. However, there is no mandate – federal or otherwise – in place allowing tenants to avoid making rental payments entirely.
Further, it is possible that evictions will continue with respect to residential properties that do not fall under the umbrella of the CARES Act moratorium. For example, properties without a mortgage securing it or without a federally backed mortgage attached will not be covered by the CARES Act. A landlord considering eviction right now may want to contact an attorney to assist with the mortgage review and/or the eviction process during this time of heightened scrutiny.
Once the moratorium is lifted, landlords will still be required to go through the normal legal process; self-help is not permitted. The eviction cannot proceed without providing proper notice, filing a complaint, and appearing at a hearing.
The economic suffering of tenants is compounded by landlord struggles, whose expenses pile up as tenants stop paying rent; indeed, the economic impact of lost rent can be felt throughout the local economy. In the hopes of preventing a foreclosure crisis in the coming months, the CARES Act includes a foreclosure moratorium for certain loans on single-family properties. This applies to borrowers with federally backed mortgage loans and tenants living in a property with such a loan. The foreclosure moratorium prevents mortgage servicers from initiating a judicial or nonjudicial foreclosure, seeking a court order for a foreclosure judgment or order of sale, holding a foreclosure sale or conducting a foreclosure-related eviction. Currently, the federal foreclosure moratorium extends through May 17, 2020.
Like the eviction moratorium, mortgagors should be aware that mortgage payments must still be paid in accordance with the terms of the mortgage agreement. However, the CARES Act does have an additional layer of protection for mortgagors with federally backed mortgage loans, as servicers are required to offer borrowers forbearance plans (i.e., temporary deferral of monthly payments) under certain conditions. Landlords that receive forbearances of federally backed multifamily mortgage loans must respect identical renter protections for the duration of the forbearance.
The CARES Act only requires a borrower attest to a financial hardship caused by the COVID-19 emergency before granting a forbearance. Servicers are also prohibited from adding to a borrower’s account any fees, penalties or interest charges beyond what the borrower already owed during the forbearance period. This provision of the CARES Act extends until the end of the COVID-19 emergency or December 31, 2020, whichever is earlier.
If a mortgagor seeks to obtain a forbearance plan, they should first determine whether their loan is in the covered category; this is not always easy to do. Yet, even if the mortgage is not federally backed, it is possible to obtain a forbearance plan, or a loan modification. A mortgagor in need should immediately reach out to discuss options with their servicer. Any forbearance plans or loan modifications should be carefully reviewed for proper terms, and they must be in writing to be enforceable. An experienced real estate attorney can help in determining whether a forbearance plan or loan modification fully meets the needs of the mortgagor and complies with federal law.
Finally, landlords facing issues collecting rent or higher expenses due to the COVID-19 pandemic may look to their insurance policies, as they often contain provisions for business interruption. The presence of a virus may not be visible, but the property must be cleaned and maintained at greater expense to keep it functional. And sick or unemployed tenants who cannot pay will interrupt cash flow and hurt the business. It may be therefore worthwhile discussing the benefits of filing a claim with counsel.
There will likely be more government support to tenants and homeowners in the future due to COVID-19’s financial fallout. In a letter to Congress on April 7, the National Multifamily Housing Council and the National Apartment Association asked for an emergency assistance fund for renter households. Any further aid to tenants will necessarily have to account for the financial burden on landlords as well. In the meantime, it is important for both tenants and landlords to be proactive and seek out assistance if faced with financial hardship. Ignoring it, especially during these challenging times, will only compound the problem.