Alan F. Hamisch
Where have all the Evictions gone?
Updated: Oct 13, 2020
When I was a kid I used to play a game called "Thin Ice." Thin Ice was a game where there was tissue placed in a ring and you slowly added wet marbles to the tissue trying not to be the person to cause the tissue to break. The year 2020 is reminiscent of that game. Every day someone or something gets added to the tissue of our economy causing what seems like it maybe ultimate ruin....then just when you think the tissue will break....another calamity gets added.
When Covid-19 seemed to stop the economy and many lost their jobs, their businesses and some, their lives, the government stepped in to strengthen our tissues on this 2020 version of Thin Ice. Specifically, in Florida, after many lost their jobs, Governor DeSantis provided a moratorium on Evictions and Foreclosures.
At first, I was completely for the moratorium. As an attorney who does a substantial amount of evictions for landlords, this support for the moratorium seems contradictory. My rational to support this was, "landlords can get a PPP loan (which may be forgivable) or at least they have a moratorium on their own foreclosure." It was a trickle down effect of keeping that game of Thin Ice in play.
Fast forward 6 months and we are still playing the game. Many tenants who were unemployed received substantial unemployment benefits. A lot of these tenants did their best to pay something towards their rent. Almost weekly though I was asked to file evictions because a lot of other tenants simply were not paying. Even those with the means to pay chose not to pay.
Shortly before the moratorium lifted the Center for Disease Control (CDC) entered a new order prohibiting the eviction of tenants that met certain criteria until at least December 31, 2020. The CDC required these tenants to provide an affidavit swearing under penalty of perjury that the information was true. https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf. This information included, among other things, that the tenant:
- use their best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit;
- would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because they have no other available housing options;
- was 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, lay-offs, or extraordinary out-of-pocket medical expenses
The Declaration does not go into a lot of definition as to what each of these terms include and provided even less guidance to judges who may have to review them in the context of determining whether to provide a landlord access back to their home.
Florida Statute 83.56, provides instruction on how to terminate a landlord tenant relationship when a tenant does not pay his rent. Further, Florida Statue 83.49 requires the Courts in Florida to expedite evictions. So we have the Governor allowing evictions to move forward and the CDC trying to prevent them...now what?
Most courts will now allow the filing of evictions and will require tenants to deposit rents into the Court Registry in order to raise any defenses they may have for failure to pay rent. It should be noted, Covid-19 did not create a defense to payment of rent. Tenants can still file the CDC Declaration to try to stop the eviction- but you should know that you can challenge the declaration! If you choose to challenge it make sure that you have a good faith basis to do so, as the CDC does provide penalties to landlords who violate the order.
Since the Declarations required to be made by tenants are sworn under penalty of perjury, you should be able to set a hearing to determine the truthfulness of those statements made by the tenant. There are some very unfortunate circumstances where this extended moratorium really does help the spread of covid-19. This help that is extended should not be at such a great cost that every landlord suffer as I have seen that many tenants who did not lose there jobs but simply took the opportunity to not pay rent. If the statements in the tenant's declaration are not true, you may be able to obtain your eviction and retake possession of your home.
So, find an attorney who can walk you through the eviction process. Doing so will help you be able to add your marble to the Thin Ice game and prevent your own personal calamity as you try to recover from the year 2020.