Evictions During Coronavirus (Covid-19)
Has the State of Florida enacted any eviction prohibitions due to coronavirus (COVID-19)?
Governor DeSantis signed Executive Order Number 20-94 (Emergency Management – COVID -19 – Mortgage Foreclosure and Eviction Relief) on April 2, 2020, suspending all non-payment rental evictions and mortgage foreclosures until May 17, 2020. Based on Section 3 of the Governor’s Executive Order, tenants are not relieved of their legal obligation to pay rent.
- “Nothing in this Executive Order shall be construed as relieving an individual from their obligation to make mortgage payments or rent payments.”
In Governor DeSantis’ Executive Order, Section 2, he states, “I hereby suspend and toll any statute providing for an eviction cause of action under Florida law solely as it relates to non-payment of rent by residential tenants due to the COVID-19 emergency for 45 days from the date of this Executive Order, including any extensions.”
As mentioned in our Residential Evictions article, an eviction is a process with many different steps. The Governor does not specifically state which step(s_ are suspended during the coronavirus (COVID-19) in Section 2, making it unclear as to what is and is not prohibited. For example, does the Executive Order mean that the actual physical removal of a tenant is suspended, or does it mean that the first steps in the eviction process, like posting a notice and filing a complaint for eviction are suspended? It appears that courts are still open and still allowing the filing of evictions to take place and that the Order only applies to the last step of the eviction suit, which is the actual physical removal of the tenant. Also, what happens if a tenant voluntarily/contractually agrees to vacate? Does that mean the tenant has waived protection under the Executive Order. The answers to these questions seem to depend on a case-by-case analysis.
Having said that, evictions are still being filed via the Florida Courts E-Filing Portal during the coronavirus pandemic, however, the handling of each eviction filing has varied from court to court, judge to judge, and county to county. It is best to have an experienced eviction lawyer help guide you through this ambiguous process to ensure success and avoid incurring further losses and potentially exposure to paying the tenant’s attorneys fees and costs.
What are potential defenses a tenant that is being evicted may have during the coronavirus (COVID-19)?
- Governor DeSantis’ Executive Order Number 20-94 (Emergency Management – COVID-19 – Mortgage Foreclosure and Eviction Relief) does not clearly state what is and isn’t allowed
- If the signed lease has a Force Majeure Clause, that clause might, in some cases, suspend or altogether eliminate a tenant’s obligation to pay rent during a pandemic.
It is of extreme importance that a landlord and/or his/her legal representative carefully reviews the subject lease to ensure he/she has the right to file an eviction during this time and be successful.
NOTE: If a landlord is not successful in evicting a tenant, the landlord is obligated under Chapter 83 of Florida’s Landlord Tenant Act to pay the tenant’s legal fees and costs.
What happens after the Governor’s Executive Order expires on May 17, 2020?
- If the property falls under the CARES Act, see more below, a residential eviction for non payment of rent may not be filed until July 24, 2020. The CARES Act is federal law and supersedes Florida State law. If the property does not fall under the CARES Act, i.e., is not a Section 8 property and does not receive federal Assistance, then the governor’s order applies, which would appear to state that residential evictions for non-payment of rent can proceed by Monday, May 18, 2020. However, as set forth above, whether the governor’s order applies to the mere filing of an eviction (step 1) or the completion of an eviction (the last step) remains unclear and will vary from county to court, on a case by case basis.
Does the CARES Act contain any laws regarding evictions?
- The CARES Act was made effective on March 27, 2020. Section 4024 of the CARES Act contains a temporary moratorium on certain evictions as well as other protections for tenants in certain rental properties. This prohibition will remain in force through July 25, 2020.
- Landlords of covered properties are prohibited by federal law from sending 3-day notices of non-payment and from filing a new eviction case for failure to pay rent during this period. Landlords are also prohibited from charging fees or interest for late payment during this period.
- After July 25, 2020, landlords may serve a 30-day notice and file an eviction after that time expires.
- Tenants ARE NOT forgiven for any rent they may owe
What properties are considered “covered properties” in the CARES Act?
Covered properties include, but are not limited to:
- Properties with federally backed mortgages (FHA, Freddie Mac, Fannie Mae, VA, HUD, USDA)
- Properties receiving low-income housing tax credits (LIHTC)
- Public housing
- Section 8 (vouchers and project-based units)
- Properties providing housing for the elderly, people with disabilities, homeless and people with AIDS with support from various federal programs
- USDA and rural housing programs under the Dept. of Agriculture, including rural housing vouchers
What does not qualify for eviction protection under the CARES Act?
Non-qualifying scenarios include, but are not limited to:
- The eviction case was filed in court on or before March 26, 2020
- The eviction case is based on breaking a rule in the rental agreement (other than non-payment)
- Property isn’t covered by the law, because the property is not Section 8 and does not involve federal funds.
What happens after the CARES Act eviction prohibition expires on July 24, 2020?
- Starting on July 25, 2020, landlords of “covered properties” may give tenants notice and commence eviction proceedings
- Once the applicable notice has expired, the landlord may then file an eviction
What happens if I filed an eviction before the COVID-19 crisis started?
- Since there are many ambiguous laws regarding evictions during this time, each case will vary from county to county, court to court, and judge to judge. For example, Miami-Dade County has extended all non-emergency court proceedings that cannot be effectively conducted remotely until May 29, 2020. It is best to contact an eviction lawyer who has extensive knowledge of the current situation for proper guidance. For evictions that were filed before the coronavirus lock down, counties and sheriffs across the state of Florida have suspended the actual physical removal of tenants but not, in some cases, the entry of final judgment against tenants.