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The Skinny on the Eviction Moratorium

Now that the dust has settled around the latest CDC eviction moratorium extension, Michigan Supreme Court orders and the American Rescue Plan Act of 2021, the time seems appropriate to provide an overview of where things stand regarding evictions in Michigan.

First up, the CDC eviction moratorium has been extended through June 30, 2021…but you probably already knew that. Based upon how some courts are handling the moratorium and how Legal Aid agencies in Michigan are going about defending their clients, you’d be led to believe that the moratorium includes more than non-payment of rent—you’d be wrong. Here’s the press release statement straight from the CDC released on March 29, 2021: “CDC Director Dr. Rochelle Walensky has signed an extension to the eviction moratorium further preventing the eviction of tenants who are unable to make rental payments (italics and bold are my emphasis).” Take notice that this statement does not include any other type of eviction…very important point.

At the risk of boring you with the details and certainly repeating my previous information regarding the CDC moratorium, here are the specifics regarding when a tenant that has not paid rent and cannot be evicted.

First, the order states that “…a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property… (bold my emphasis)” The key phrase used here is “covered person.” What is a covered person? “Covered person” means any tenant, lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action, a declaration under penalty of perjury indicating that (all conditions must be met):

  1. They used their best efforts to obtain all available government assistance for rent or housing and cannot make full or partial payments of rent.
  2. They meet one of the following thresholds for income eligibility:
    1. They earned no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint 2020 tax return).
    2. They expect to earn no more than $99,000 in annual income for Calendar Year 2021 (or no more than $198,000 if filing a joint tax return).
    3. They were not required to file a 2020 tax return.
    4. They received a stimulus check under the CARES Act.
  3.  They are unable to pay full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses.
  4. They are using their best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses.
  5.  They must also declare that, if evicted, they have no other available housing options and would likely experience one of the following circumstances:
    1. become homeless,
    2. need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters.

 
There clearly is nothing under the description of a covered person that references anything other than non-payment of rent cases under a hardship likely caused by COVID-19 where the tenant will end up on the street, in a homeless shelter or where they have to move in with someone else in “close quarters.” Yet, we’ve heard that some judges are staying evictions where this is not the case. We also heard that Legal Aid attorneys (or informed tenants) are using tactics to substantially delay cases where this isn’t true by asking for a trial. And, courts are acquiescing to this strategy and holding up cases by not scheduling the trial!

The latest Michigan Supreme Court order makes it pretty clear that the only evictions included under the moratorium should be held up, i.e. (unless the court is still overwhelmed and using the prioritization for eviction cases establish in 2020):

“b. Accept filings related to LT cases and proceed as follows:

(i) For cases that are not subject to the moratorium under the CDC order, the court shall proceed as provided in this order and MCR 4.201. (In other words, like normal.)

(ii) For cases that are subject to the moratorium under the CDC order, the court shall process the case through entry of judgment. A judgment issued in this type of case shall allow defendant to pay or move (under item 4 on DC 105 or similarly on non-SCAO forms) within the statutory period (MCL 600.5744) or by the first day after the expiration of the CDC order, whichever date is later. MCR 4.201(L)(4)(a), which prohibits an order of eviction from being issued later than 56 days after the judgment enters unless a hearing is held, is suspended for cases subject to the CDC moratorium. The 56 day period in that rule shall commence on the first day after the expiration of the CDC order for those cases.” (In other words, you can get a judgement for an eviction for non-payment but the Order/Writ of Eviction will be held up until the moratorium is lifted.)

The RPOA staff has also found that some cases are being held up by the courts where the landlord has mistakenly mixed a possession only eviction with past due rent. The two cases investigated by the RPOA found that one of the landlords included “past due rent” under the damages portion of the compliant. The other case faltered because the manager made a statement during the hearing to the effect that (paraphrasing) “one of the reasons we don’t want to continue the lease is because the tenant hasn’t been paying rent.” Oops…in both cases. Judges are hard pressed to know how to handle these situations, and it seems that they are leaning towards interpreting these cases as covered under the moratorium–if the tenant qualifies. As always, the RPOA recommends that possession only cases never be muddled up by mentioning anything about past due rent or asking for past due rent under damages. Since the CDC moratorium does not let the tenant off the hook for the past due rent, a landlord can always take the money damages claim to small claims court later—after the tenant is no longer in possession of the unit.

With all that said, you may be wondering if there is still money for past due rent to assist tenants who qualify. The good news is yes…the program is now called CERA—no longer known as the EDP. Even better news, the process has been improved since 2020. The three big differences include:

  • A landlord can now initiate the request for assistance on behalf of the tenant. Some tenants are not aware of the assistance or may be intimidated by the process. So, this should get things moving easier—at least initially. The tenant must still qualify for assistance and agree to receive the assistance.
  • The landlord no longer has to take the 11% haircut on the rent due in order to receive monies through the program. This is huge!
  •  Money is also now available for the tenant to pay past due utility bills. This was a serious problem under the previous program. The tenant might receive rental assistance but be stuck in a situation where they can’t afford the utility payments and the landlord became the stuckee.

 
The RPOA of Michigan fought hard for the first two items on this list. Another nice change is that the process for assistance now starts online with a form provided on the MSHDA website which can be found here.

That’s the skinny on the newest eviction moratorium, court orders and available funding. If you have questions, you can call the RPOA office, one of the RPOA’s referral attorneys or the courts or your local HARA office to find out more. A list of the HARA’s can be found here for your county. If you’re having serious issues with an eviction and need legal assistance, we encourage you to use one of the RPOA member attorneys, a list of which can be found here.

(Note: I mentioned in the article that some courts may still be using prioritization for different types of evictions. This is likely the case where the courts are still playing catch up. The priorities essentially place drug evictions and other similar urgent cases ahead of non-payment cases. Next on the list are those non-payment cases where the tenant has been past due longer than 30 days. The next in line are the 30 day past due cases with plain ole, possession only cases, dead last. You’ll need to call your local court to see if they are still using prioritization.)

 

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