Have residential evictions been put on hold statewide due to COVID-19?

Yes. On Sept. 1, 2020, the U.S. Centers for Disease Control took emergency action and issued an order intended to prevent further spread of COVID-19 throughout the country. Under the order, 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 in any jurisdiction through December 31, 2020 for nonpayment of rent.

Who is covered under this order?

A covered person is a tenant, lessee, or resident of a residential property. The covered person must provide the person with a legal right to pursue eviction a declaration under penalty of perjury indicating that:

  1. The individual has used best efforts to obtain all available government assistance for rent or housing;
  2. The individual either (i) expects to earn no more than $99,000 in annual income for calendar year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
  3. The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a layoff, or extraordinary out-of-pocket medical expenses;
  4. The individual is using 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; and
  5. Eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

In what jurisdiction does this order apply?

The order applies to any jurisdiction without a current eviction moratorium.

Does the order relieve tenants of the obligation to make payments?

The order does not relieve any obligation to pay rent, make a housing payment, or comply with any other housing-related contractual obligations. Nothing in the order precludes the charging or collecting of fees, penalties, or interest due to the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract. Additionally, a person may still be evicted for reasons other than nonpayment of rent.

Are tenants automatically protected from eviction under the CDC’s order?

No. Under the Centers for Disease Control and Prevention’s order, tenants who want to be protected from eviction must provide a declaration to their landlords, owners of the residential property where they live, or other people who have a right to have them evicted.

The order, which is in effect from September 4 through December, 31, 2020, prohibits a landlord, owner of a residential property, or other person with a legal right to pursue eviction from evicting any covered person for nonpayment of rent. A covered person is a tenant, lessee, or resident of a residential property.

Can a local government take action to limit evictions beyond the restrictions put in place by the CDC order issued Sept. 1, 2020?

Yes. Therefore, it is important for property managers to continue to monitor actions taken by cities and counties relating to evictions.

Has the Texas Supreme Court issued any guidance on the Centers for Disease Control and Prevention’s eviction order?

Yes, the Texas Supreme Court on September 17 issued an order that will be in effect until December 15. In the order, the court clarifies what landlords must provide in a sworn statement before proceeding with the eviction process. An eviction petition must include a sworn statement on whether or not:

  1. the premises is a “covered dwelling” subject to Section 4024 of the CARES Act;
  2. the plaintiff is a “multifamily borrower” under forbearance subject to Section 4023 of the CARES Act;
  3. the landlord has provided the defendant with 30 days’ notice to vacate under Sections 4024(c) and 4023(e) of the CARES Act; and
  4. the tenant has provided the landlord with a declaration under the Centers for Disease Control and Prevention’s agency order, Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, that took effect September 4, 2020.

The citation issued by a court must also include language providing notice of the CDC’s order to the tenant, and the order states that a judge has authority to ask whether a tenant facing eviction is aware of the CDC’s order. Furthermore, the order clarifies that if a tenant files the declaration with the court and serves a copy of the declaration on the landlord after an eviction petition has been filed, the court must abate the eviction action, including the issuance and execution of any writ of possession.

What is the Texas Eviction Diversion Program?

The Texas Supreme Court on September 25 established the Texas Eviction Diversion Program with funding allocated by Gov. Greg Abbott. The voluntary program permits eligible landlords and tenants to resolve issues raised in an eviction case by providing up to six months of rental assistance for eligible tenants who are behind on their rent due to the COVID-19 pandemic. If eligibility requirements are met, assistance can be used to pay the full contracted rent that is past due (up to five months), and the remainder may be used to pay for subsequent months of assistance (up to a total of six months) and the eviction case will be dismissed.

The Texas Supreme Court now requires a sworn original, amended, or supplemental eviction petition to state that the landlord has reviewed the information about the Texas Eviction Diversion Program. Also, the eviction citation given to the tenant by the court must include the following:

  • “You may be able to stop your eviction if you and your landlord agree to participate in the Texas Eviction Diversion Program. At your trial, the court will tell you about the program and ask if you are interested in participating. Find out more about the program in the attached brochure, ‘State of Texas Eviction Diversion Program,’ and at www.txcourts.gov/eviction-diversion.”
  • A copy of the informational brochure “State of Texas Eviction Diversion Program,” prepared by the Texas Department of Housing and Community Affairs.

If the eviction goes to trial, the judge must discuss the Texas Eviction Diversion Program with the landlord and tenant and ask whether the landlord and tenant are interested in the program. If both the landlord and tenant indicate they are interested in the program, the judge is required to delay the proceedings for 60 days, make the records and information on the eviction case confidential, and inform the landlord and tenant about the reinstatement procedure.

At any time during the 60-day abatement period, the landlord can file a motion to reinstate the eviction case with the judge. The motion must be served on the tenant. The judge is then required to reinstate the eviction case, set it for trial within 21 days, inform the parties how to proceed, and make the records and information non-confidential. If the landlord does not file and serve a motion to reinstate an action abated within the 60-day abatement period, the judge must dismiss the action, including any claims that do not involve the nonpayment of rent, with prejudice. All court records, files, and information—including information stored by electronic means—relating to the dismissed eviction action must remain confidential.

The Texas Eviction Diversion Program and its court procedures are effective October 12 for Bee, Bexar, Brazos, Chambers, Deaf Smith, El Paso, Erath, Fannin, Grayson, Harris, Jim Wells, Kleberg, Montgomery, Palo Pinto, Parker, Potter, Randall, San Patricio, and Wise counties. The program is effective January 1, 2021, for all other counties. The court order establishing the program and its requirements expires February 1, 2021, unless extended by the chief justice of the Texas Supreme Court..

Note: The order does not prohibit the landlord from filing an action for eviction based on future events or acts that are an independent basis for eviction.

What are the Texas Eviction Diversion Program eligibility requirements?

To be eligible for the eviction diversion pilot program, landlords must meet the following criteria:

  • Assistance for rent no older than April 2020
  • Rent for the household assisted may not exceed the TDHCA maximum limits established per ZIP code
  • Must have a bank account and accept direct deposit
  • Units that are already receiving project-based assistance or are public housing units are ineligible
  • Units that are owned by a unit of government may be ineligible.

To be eligible for the eviction diversion pilot program, tenants must meet the following criteria: 

  • Household income at or below 200% of poverty
  • Household has been financially affected by COVID-19 pandemic
  • Tenants are ineligible if they are receiving tenant-based voucher assistance, are in a unit receiving project-based assistance, or are in public housing.

The Texas Legal Services Center has established a toll-free hotline to assist individuals seeking legal assistance at 855-270-7655. The Texas Department of Housing and Community Affairs has established a website and a toll-free hotline to provide information at 800-525-0657 or 512-475-3800 (pick option 4).

Is there a form to use with tenants who are having trouble paying the rent due to COVID-19 issues?

Texas REALTORS® has created the COVID-19 Lease Payment Plan Agreement (TXR 2227). This form is intended to be used with tenants who are facing financial difficulties directly linked to COVID-19. This form enables the tenant and landlord temporary flexibility for paying rent and other sums.

What information can I share with tenants and landlords about COVID-19 issues?

To help your tenants and landlords understand how COVID-19 affects their leases and rental properties, Texas REALTORS® has developed two fliers: one to share with your tenants and one to share with your landlords.

Can residential tenants refuse to allow access to property due to fear of contracting COVID-19?

No. Subparagraph B of Paragraph 14 of the Residential Lease (TXR 2001) and Residential Lease for Multi-family Property Unit (TXR 2011) states that landlords or anyone authorized by landlords will first attempt to contact the tenant before accessing the property, but may enter the property at reasonable times without notice to make repairs or to show the property to prospective tenants or buyers, inspectors, fire marshals, lenders, appraisers, or insurance agents. Subparagraph C allows landlords to charge a fee if a tenant refuses access or fails to make the property accessible.

However, to ensure health and safety and to reduce property owners’ potential liability, landlords or property managers may want to screen those wishing to view the property for coronavirus exposure. If implementing a screening process, remember to adhere to fair housing guidelines, which dictate that landlords and property managers may not discriminate against anyone based on race, color, national origin, religion, sex, familial status or disability. Property managers should also encourage property owners to speak to their own risk advisors or attorneys on these matters related to COVID-19.

Can a tenant request an accommodation to not allow viewings under the ADA and Fair Housing Act requirements if the tenant is a member of the community at higher risk of developing severe illness due to COVID-19 exposure?

Possibly. A previously diagnosed compromised immune system could be considered a disability for FHA purposes. A reasonable accommodation in the rules, practices, or services may be requested to afford the person equal opportunity to use and enjoy a dwelling. A property owner must grant a tenant’s request for a reasonable accommodation unless the request is: 1) unduly burdensome, a fundamental alteration of the landlord’s program, or there is another accommodation that is just as reasonable; or 2) the tenant poses a direct threat to the health or safety of other residents or when the tenancy would result in substantial physical damage to the property of others. There may be other reasonable accommodations available to the tenant, such as screening a prospect for coronavirus exposure or implementing cleaning protocols after the prospect has viewed the property. Questions about a specific request should be directed to the property owner’s attorney.

As a property manager, what should I do if a tenant in a building I manage is diagnosed with COVID-19?

Under current laws and regulations, a tenant is not required to inform the landlord of an affirmative COVID-19 diagnosis. Property managers or landlords should consult the CDC website for recommendations to create written protocols and procedures that include how to deal with an outbreak and prevent the spread of the virus in the building, as well as recommended communications to tenants. If you are notified that a tenant has received a positive diagnosis, you should communicate with the tenant to ascertain what prevention measures that tenant is taking and whether additional communications to other tenants are necessary. Keep all communications confidential to make sure you are complying with your health-related confidentiality obligations (such as the ADA).

Can a residential tenant terminate an executed lease due to COVID-19?

No. The lease provides that unless otherwise provided by law, the tenant is not entitled to early termination due to voluntary or involuntary job or school transfer, changes in marital status, loss of employment, loss of co-tenants, changes in health, purchase of property, or death. No laws are currently in place that allow a tenant to terminate early due to COVID-19 related reasons. Tenants are encouraged to consult with an attorney if they want to proceed with terminating.

Have commercial evictions been put on hold statewide due to COVID-19?

No. However, the Texas Supreme Court and the Court of Appeals issued an order that allows all Texas courts to modify or suspend any and all deadlines and procedures for a period ending no later than 30 days after the governor’s state of disaster has been lifted. Therefore, the local orders issued at the city and county level may put holds on all evictions—residential and commercial. Texas REALTORS® advises its members to continue to monitor developments on evictions at the city and county level, encourage clients to review the applicable local orders for information regarding commercial evictions, and recommend clients contact their local court to determine if it is allowing filings at this time.

THE CARES ACT & RESIDENTIAL TENANTS

Has the temporary eviction moratorium in the CARES Act ended?

Yes, the temporary eviction moratorium in the CARES Act ended on July 24. Importantly, however, the eviction may otherwise be prohibited by the CDC or, if not, may still require a 30-day notice to vacate under the act.

When does the CARES Act require a landlord to provide a 30-day notice to vacate?

For tenants in covered properties, the CARES Act requires landlords to provide at least 30-day notice to vacate before filing eviction based on nonpayment of rent that accrued during the temporary eviction moratorium under the act. Strictly applied, this means that if a landlord’s eviction filing requests judgment for unpaid rent that accrued from March 18 to July 24, the landlord should provide a 30-day notice to vacate. However, two things to note:

  1. It is unclear if courts will interpret and enforce the act in this manner.
  2. Many evictions of residential tenants will be otherwise prohibited by the CDC, in which case the landlord should not be seeking eviction at all.

Which properties are subject to the 30-day notice to vacate requirement under the CARES Act?

The CARES Act applies to a property occupied by a tenant pursuant to a residential lease if the property participates in a covered housing program or the rural housing voucher program or has a federally backed mortgage loan or a federally backed multifamily mortgage loan.

Specifically, this includes rental housing supported by the following federal housing programs:

  • Public housing
  • Section 8 Housing Choice Vouchers
  • Section 8 Project-Based Rental Assistance
  • Section 202 Supportive Housing for the Elderly
  • Section 811 Supportive Housing for Persons with Disabilities
  • Housing Opportunities for Persons With AIDS (HOPWA)
  • McKinney-Vento Homeless Assistance grants
  • Section 236 Preservation program
  • HOME investment partnerships
  • Rural Development multifamily housing (Section 516 Farm Labor Housing Grants, Section 542 Rural Development Vouchers, Section 521 Rural Rental Assistance, Section 533 Housing Preservation grants)
  • Low Income Housing Tax Credit (LIHTC) program.

It also includes rental housing with a single-family or multifamily mortgage that is:

  • purchased or securitized by Fannie Mae or Freddie Mac
  • insured by the Federal Housing Administration (FHA)
  • guaranteed, directly provided by, or insured by the Department of Veterans Affairs (VA)
  • guaranteed, directly provided by, or insured by the Department of Agriculture (USDA)
  • guaranteed under HUD’s Native American or Native Hawaiian Home Loan Guarantee programs.

Some landlords will know that their home is included because they recognize the name of a federal housing program on the list above that they had to apply and qualify for. However, many landlords of 1-4 residential properties may not realize that their property has a federally backed mortgage, because even if a landlord obtained a loan from a bank or credit union and makes payments to a mortgage company that does not appear to be related to the government, the loan may have been sold shortly after closing to Freddie Mac or Fannie Mae. A landlord can use the Freddie Mac or Fannie Mae look-up tools to determine if either of these government-sponsored enterprises now own their loan. (Property managers should note that these loan searches can only be conducted by or with permission from the borrower.) Other look-up tools have been provided by the National Preservation Database (affordable housing only) and the National Low Income Housing Coalition (multifamily only). Taken together, these four websites include most, but not necessarily all, of the properties covered by the CARES Act.