• Violated any other contractual obligation , other than the timely payment of rent or related fees . See 85 Fed . Reg . at 55294 .
Aside from the five enumerated exceptions above , the Order prohibits eviction of all other covered tenants . Yet , it does not relieve any tenants from the obligation to pay rent or other related fees that may accrue ( including late fees ).
The Order Prevents a Landlord from Evicting a Covered Tenant The Order states that a landlord shall not “ evict ” a tenant from a residential property . “ Evict ” and “ eviction ” are defined as “ any action by a landlord , owner of a residential property , or other person with a legal right to pursue eviction or a possessory action , to remove or cause the removal of a covered person …” Id . at 55293 . Landlords face steep criminal penalties ( including fines and possible jail time ) for violations of the Order . Id . at 55296 .
Interpreting the plain language — to “ remove or cause the removal ”— through the lens of Georgia landlord-tenant law , a landlord should not be allowed to take any of the following actions , assuming the landlord has received the tenant ’ s declaration :
• Taking any action to illegally evict a tenant without going through the dispossessory process ( which is also illegal under Georgia law );
• Threatening a tenant for the purpose of forcing the tenant to leave ;
• Filing a dispossessory warrant ;
• Continuing to pursue adjudication of a dispossessory case that has already been filed ; or
• Applying for a writ of possession after receiving an eviction judgment .
On October 9 , 2020 , the CDC , along with HUD and DOJ issued a joint ‘ Frequently Asked Questions ’ document that raised new ambiguities about the effect of the order . The Agencies stated that these FAQs were “ non-binding .” The FAQs are not entitled to any deference by Georgia landlordtenant courts because they were not issued through any formal rulemaking and do not resolve any genuine ambiguities in the CDC ’ s original order . 3 Most likely , the FAQs were a compromise position taken after some landlords challenged the CDC Order in federal district courts , which further undermines any calls for deference to the FAQs . 4 The FAQs suggest that eviction cases may proceed , but that covered tenants cannot actually be evicted during the covered period .
Georgia landlord-tenant law should also prevent any dispossessory case from moving forward when a CDC declaration has been submitted . A dispossessory proceeding must be dismissed if the tenant still has right to possess the property . See Pertillo v . Forest Ridge LTD ., 166 Ga . App . 552 , 553 ( 1983 ). Those tenants who qualify for and submit CDC declarations to their landlords have the right to possess the property until the moratorium ’ s expiration on December 31st . And , any landlord who proceeds with an eviction after receiving a declaration is in violation of the plain language of the Order — that is , removing or causing the removal of a covered tenant .
How Georgia Landlord-Tenant Courts Should Handle the Order Because the demand far outstrips the supply of legal services and pro bono attorneys , most tenants who are protected under the order will be appearing pro se in these dispossessory cases . When dispossessory judges make general announcements at the call of dispossessory calendars ( as many do ), an explanation of the CDC Order and its impacts should be incorporated into the calendar call .
Some courts have allowed landlords to challenge the tenant ’ s statements in the declaration . Although it may be appropriate to hear those arguments in certain cases , courts should generally accept the tenant ’ s sworn statements and take a balanced approach to any challenge . For instance , courts could require that any landlord
IN THE PROFESSION COMMUNITY
challenging the declaration provide some prima facie evidence that the tenant has materially falsified the declaration before the court will set an evidentiary hearing . Otherwise , landlord challenges to the declaration threaten to overwhelm our courts , harass and intimidate pro se tenants , and frustrate the public health purpose of the CDC Order .
Once a court determines a tenant has submitted a declaration to their landlord , it should either dismiss the eviction case ( if the declaration came before the landlord filed the eviction ) or — at a minimum — stay the case ( if the declaration came after the landlord filed ) through the moratorium ’ s expiration on December 31st . These outcomes meet the original purpose of the CDC ’ s Order — to prevent mass evictions that will exacerbate a national public health emergency .
Eviction at 20 times the normal rate poses a danger to the health of all Georgians and undermines the public health efforts to tamp down community spread of COVID-19 . With the buffer the CDC Order creates , the hope is that a good number of these evictions will be permanently resolved as tenants secure federal rental assistance , unemployment benefits , and reemployment . __________________________________
1
See Katherine Lucas McKay et al ., 20 Million Renters Are at Risk of Eviction ; Policymakers Must Act Now to Mitigate Widespread Hardship , The Aspen Institute ( June 19 , 2020 ), https :// www . aspeninstitute . org / blog-posts / 20-millionrenters-are-at-risk-of-eviction / ( predicting 19-23 million U . S . evictions by Sept . 30 , 2020 ).
2
The writ of possession is the court order that allows the landlord to regain possession of the property , as executed by designated law enforcement . See O . C . G . A . § 44-7-55 .
3
See Christensen v . Harris Cty ., 529 U . S . 576 , 587 ( 2000 ) ( explaining that these types of interpretations do not warrant Chevron-style deference ); see also Kisor v . Wilkie , __ U . S . __, 139 S . Ct . 2400 , 2414 ( 2019 ) ( a court should give lesser Auer-style deference only if the original regulation is genuinely ambiguous ).
4
See Kisor at 2414 ( a court should decline to defer when the agency ’ s interpretation is merely a
“ convenient litigating position ”).
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