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Untangling the Knot: The Effects of the CDC's Eviction Moratorium, Executive Order 7OOO, and a Recent Court Order on Landlords and Tenants in Connecticut

September 10, 2020

Since the beginning of the COVID-19 pandemic, landlords and tenants in Connecticut have faced a dizzying array of federal and state orders on eviction. This alert attempts to clarify the regulatory framework, particularly in light of three recent government actions: (1) an eviction moratorium by the U.S. Centers for Disease Control (the “CDC”) that prohibits residential landlords from evicting certain tenants for nonpayment of rent through December 31, 2020; (2) Governor Lamont’s Executive Order 7OOO (the “Executive Order”), which purportedly prohibits the issuance of a notice to quit and prevents the service or return of summary process actions to court for residential rentals through October 1, 2020; and (3) a court order by the Superior Court of Connecticut (the “Court Order”), which purportedly ends the prolonged stays of execution on non-residential (i.e. commercial) evictions as well as those types of residential evictions that do not fall within the ambit of the Executive Order.

At the outset of the pandemic, as discussed in our prior alert on Governor Lamont’s eviction moratorium, Connecticut initially prohibited the issuance of a notice to quit and return of summary process actions to court for residential rentals, except for “serious nuisance,” through July 1, 2020. Subsequently, Connecticut extended this prohibition through mid-August, but added as an exception to the prohibition those evictions related to “nonpayment of rent due on or before February 29, 2020.” Through the Executive Order, Connecticut further extended this prohibition through October 1, 2020, and, in addition to the preexisting exceptions for “serious nuisance” and “nonpayment of rent due on or before February 29, 2020,” added as an exception to the prohibition those situations where the landlord has “a bona fide intention” to use the property as the landlord’s “principal residence” and specifies, in the notice to quit, both that intention and the date of the expiration of the lease.

But all the while, Connecticut’s courts, by way of administrative orders, have stayed executions on all residential and non-residential evictions. In effect, this has stopped the execution of any eviction in Connecticut, regardless of the exceptions enumerated in Governor Lamont’s executive orders and regardless of whether a notice to quit has been issued or a summary process action has been returned to court.

Against this backdrop, the CDC issued an eviction moratorium on September 1, 2020, that prohibits residential landlords from evicting certain tenants through December 31, 2020. The CDC’s moratorium merits a careful read, but here are a few key points:

  • The moratorium broadly defines “eviction” to include “any action . . . to remove or cause the removal” of a covered tenant.
     
  • “Each adult tenant or resident” must sign a declaration, “under penalty of perjury,” that he or she meets the following criteria:
  1. The tenant or resident “has used best efforts to obtain all available government assistance for rent or housing”;
     
  2. the tenant or resident falls within certain income limits or received a stimulus check pursuant to the CARES Act;
     
  3. the tenant or resident “is unable to pay the full rent . . . due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses”;
     
  4. the tenant or resident “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 [tenant or resident] homeless” or forced “to move into and live in close quarters in a new congregate or shared living setting”.
  • The CDC’s moratorium does not prohibit a landlord from evicting a tenant for certain exceptions:
  1. A tenant who engages in a criminal activity on the premises;
     
  2. a tenant who threatens the health or safety of other residents;
     
  3. a tenant who damages or poses an “immediate and significant risk” of damage to property;
     
  4. a tenant who violates an applicable regulation “relating to health and safety”; or
     
  5. a tenant who “violates any other contractual obligation, other than the timely payment of rent”.
  • The CDC’s moratorium specifies that it does not preclude state and/or local governments from imposing more restrictive public health protections.
     
  • Individuals who violate the CDC’s moratorium, e.g., landlords who wrongly take actions to evict tenants or tenants who falsify information on a declaration, may be subject to criminal penalties, including steep fines of up to $500,000 and up to one year in jail.

Two days later, on September 3, 2020, the Court Order effectively lifted the stay of execution on non-residential evictions and residential evictions that are permissible under the Executive Order and the CDC’s moratorium. But, the Court Order specifically states that “[a]ll previously issued executions that have expired must be returned to Court and a new application must be filed.” Finally, the Court Order specifies that it should be read consistent with the Executive Order but nevertheless subject to federal laws, rules, orders and regulations, including the CARES Act and the CDC’s moratorium.

So, what does all of this mean? Although it is impossible to delineate all of the potential applications of these three intersecting actions, a few observations are worth highlighting:

  • At least until October 1, 2020, for tenants who do not fall within the CDC’s criteria, residential evictions can only proceed if the tenant is being evicted for one of the exceptions specified in the Executive Order, e.g., serious nuisance, pre-pandemic non-payment of rent, or substitution of landlord as occupant. Under Connecticut law, a “serious nuisance” includes: inflicting or threatening to inflict bodily harm upon another tenant or the landlord; substantial and willful destruction of part of the premises; conduct which presents an immediate and serious danger to the safety of other tenants or the landlord; or using the premises for prostitution or the illegal sale of drugs. Those landlords with tenants falling outside of the CDC’s criteria should carefully monitor whether Governor Lamont extends the protections conferred by the Executive Order beyond October 1, 2020.
     
  • For tenants who fall within the CDC’s criteria, residential evictions cannot proceed unless the reason for eviction falls within the exceptions specified in both the Executive Order and the CDC’s moratorium. As a practical matter, this means two things as to these tenants:
  1. The Executive Order’s exceptions for pre-pandemic non-payment of rent and substitution of the landlord as an occupant are preempted by the CDC’s moratorium, and therefore ineffective.
     
  2. At least until October 1, 2020, landlords can evict only those residential tenants engaged in conduct that both constitutes a “serious nuisance” and falls within the exceptions specified by the CDC.
  • Given the Court Order, executions on evictions that can proceed without running afoul of the CDC’s moratorium, the Executive Order, or other federal law, including executions on commercial evictions, probably will proceed; however, parties should be advised that Connecticut courts continue to move at a slower pace than normal.
     
  • Pursuant to Connecticut General Statutes § 47a-41a, landlords should remember that executions to enforce eviction judgments generally cannot be issued after six months from the date of the judgment, but that any period during which an execution was stayed is specifically excluded from this computation. This creates some cause for confusion, given that the Court Order states that “[a]ll previously issued executions that have expired must be returned to Court and a new application must be filed.” Accordingly, landlords with judgments should carefully examine the date of their judgment, the Court’s administrative orders, and § 47-41a to determine whether they need to file a new application.
     
  • As has been the case with prior executive orders on residential security deposits, in certain circumstances where a landlord is holding a security deposit in excess of one month’s rent the tenant may request in writing that the landlord withdraw from his or her security deposit an amount equal to the excess of one month’s rent and apply this excess against rent due for September, 2020. A discussion relevant to this subject can be found in one of our prior alerts.

In sum, landlords and tenants continue to face a complicated regulatory framework that is ever-changing and fact-dependent. Additionally, the CDC’s threat of criminal penalties for those who violate these orders means that landlords and tenants must be more cautious than ever.

Shipman & Goodwin attorneys are available to help landlords and tenants navigate difficult situations in light of the ever-changing rules and orders being issued on the state and federal level during the COVID-19 pandemic. We will endeavor to analyze and explain the relevant law in these areas and related considerations, and update our Coronavirus Resource Center (specifically, the Real Estate Leasing page) periodically to include relevant Connecticut, New York, federal and local laws, rules and regulations that are enacted during this crisis, as well as court filings and relevant precedent or other topical information.

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