evictionmoratoriumS – WhatWedoanddonotknoW
Real Property , Probate & Trust law Section
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“ landlord , owner of a residential property , or other person [ which shall include corporations , companies , associations , firms , partnerships , societies , and joint stock companies ] with a legal right to pursue eviction or possessory action .” 8
While the CDC Order and Moratorium Order have very similar mandates , they differ in application . Mainly , the CDC Order makes clear that “[ n ] othing in [ the CDC ] Order precludes evictions based on a tenant , lessee , or resident : ( 1 ) Engaging in criminal activity while on the premises ; ( 2 ) threatening the health or safety of other residents ; ( 3 ) damaging or posing an immediate and significant risk of damage to property ; ( 4 ) violating any applicable building code , health ordinance , or similar regulation relating to health and safety ; or ( 5 ) violating any other contractual obligation , other than the timely payment of rent or similar housing-related payment ( including non-payment or late payment of fees , penalties , or interest ).” 9 Moreover , in order for a tenant to invoke the CDC Order for the non-payment of rent , any and all tenants or renters of the subject premises must submit a sworn declaration which states in part that : ( 1 ) the tenant ( s ) have used all available efforts to obtain government assistance to pay rent ; ( 2 ) the tenant meets certain economical earning and tax reporting standards ; ( 3 ) the renter is unable to pay rent from loss of work ; ( 4 ) the renter will make all best efforts to make partial rent payments when possible ; and ( 5 ) eviction would likely lead to the tenant becoming homeless . 10 Therefore , the CDC Order does not preclude a landlord from beginning eviction proceedings for the non-payment of rent ; rather , it states that the landlord ( or equivalent ) may not “ evict ” the tenant ( s ) for the non-payment of rent after the tenant ( s ) have supplied the landlord with the sworn CDC Declaration .
Lastly , it is extremely important to note that the application of the Moratorium Order and CDC Order is not uniform across the state of Florida . Rather , it is in the best interest of counsel to gather the following information before advising their clients in connection with any eviction related claims or issues : ( 1 ) whether the CDC Order is in effect at the time of the issue / claim arose and , if so , have there been any new Executive Orders issued by the Governor that impact same ; ( 2 ) whether the Florida Supreme Court has issued any new guidance on evictions and foreclosures ; 11 ( 3 ) whether the Circuit Court of the applicable county issued any guidance concerning evictions and moratoriums ; and ( 4 ) whether the County Clerk and / or the sheriff ’ s office in the county at issue has agreed to enforce writs of possessions . n
1
Fla . Exec . Order No . 2020-94 ( Apr . 2 , 2020 ), available at https :// www . flgov . com / wp-content / uploads / orders / 2020 / EO _ 20-94 . pdf .
2
Id . ( emphasis added ).
3
Id . ( emphasis added ).
4
Id . ( emphasis added ).
5
Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19 , 85 FR 55 , 292 ( Sept 4 , 2020 ).
6
Caroline Glenn , DeSantis lets eviction moratorium expire , saying it ’ s no longer needed after CDC issued freeze , Orlando Sentinel ( Sept . 30 , 2020 ), https :// www . orlandosentinel . com / business / os-ne-florida-eviction-order- expires-20200930- h5qwtxo7qzb5tj4tae3vbzslze-story . html .
7
Id . ( emphasis added ).
8
Id .
9
Id . ( noting that “[ n ] othing in [ the CDC ] Order precludes the charging or collecting of fees , penalties , or interest as a result of the failure to pay rent or other housing payment on a timely basis , under the terms of any applicable contract ”).
10
Id . The Declaration form for the CDC Order can be found at https :// www . cdc . gov / coronavirus / 2019-ncov / downloads / declaration-form . pdf .
11
See Fla . Supreme Ct . Admin . Order AOSC20-23 ( May 4 , 2020 ), amended Oct . 2 , 2020 .
Author : Kasey A . Feltner – Shutts & Bowen
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