3 . What happens if a Declaration has been provided ? If a Declaration has been provided to the property owner , the court may not proceed with an eviction based upon non-payment of rent or other amounts due under the lease unless the judge holds a hearing to determine whether they can proceed and enters a written order detailing why the case may proceed .
If a resident provides a Declaration after an eviction suit is filed , they must file it with the court and provide a copy to the owner . The court must then abate the case , if it is based upon non-payment of rent or other amounts due under the lease , unless the owner contests the Declaration and the court holds a hearing as described above .
4 . Should I challenge a Declaration I believe to be inaccurate ? Maybe . Remember that the CDC Order includes criminal and administrative penalties for violating the order . The 25 TH Order from the Texas Supreme Court should stop a county or district attorney from prosecuting a property owner for proceeding in an eviction when the Declaration is successfully challenged . However , it would not be binding on a federal court or prosecutor prosecuting an owner for an alleged violation of the Order if they believed that the challenge to a Declaration was wrongly decided by the state court . This is not a likely scenario , but it is possible .
TAA has developed a form that members can use to challenge declarations under the CDC order , entitled “ Owner ’ s Contest to Declaration Under COC Temporary Halt in Evictions .” This form is available on the TAA website and in the TAA REDBOOK Online , and it also will be released in TAA Click & Lease on Wednesday , September 23 .
5 . How do the CARES Act , CDC Order and 25 th Supreme Court order overlap ? What evictions are affected by these government actions ? The CDC order is not a continuation of the CARES Act . The CARES Act applies to “ covered properties .” The CDC Order applies to “ covered persons .” The two laws are distinct .
Additionally , the CDC Order only applies to evictions for non-payment of rent of qualified residents or other amounts due under the lease , such as late fees or utility payments . HOWEVER , the pleading requirement of the Supreme Court ' s 25th Order for the landlord to state whether or not the resident has filed a Declaration DOES apply to all residential evictions .
The CDC order provides that a “ covered person ” may not be evicted from residential property based on nonpayment of rent or other amounts due under a lease or agreement . In order to be a “ covered person ” under this order , a resident must provide to the landlord , owner of the residential property where they live , or other person who has a right to have them evicted or removed from where they live , a sworn Declaration with the information required by the CDC order that the resident meets certain qualifications .
Each resident listed on the lease or other agreement must provide a Declaration in order to be covered by this moratorium . If only one resident provides a Declaration , that resident would be a “ covered person ” but the other residents could be evicted .
The CDC created a Declaration form , which is available online at https :// www . cdc . gov / coronavirus / 2019- ncov / downloads / declaration-form . pdf . This specific form does not have to be used , but the Declaration must be sworn under penalty of perjury and certify the qualifications of the tenant to be covered by the Order .
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