Despite order, eviction efforts demand action
The state’s eviction moratorium in effect through the end of March is not automatic.
Experts say that as is the case with the federal moratorium issued by the Centers for Disease Control and Prevention, renters need to take immediate action or they can still be evicted.
When Gov. Steve Sisolak announced another statewide eviction moratorium last month for renters unable to make their monthly payments, some gaps in the federal eviction moratorium were patched up.
Unlike the federal moratorium, Sisolak’s latest directive explicitly covers renters facing no-cause evictions and those who pay rent by the week, making his directive much broader than the CDC moratorium.
Legal Aid Center of Southern Nevada attorney Christopher Storke said the biggest mistake he has seen is an assumption by renters that they are automatically protected, so they don’t take any action.
“Do not overlook providing your landlord with a tenant declaration or a CDC declaration,” said Storke. “Tenants should always provide the declaration even if they receive a summary eviction notice.”
Evictions continue
Once Nevada’s first eviction moratorium for nonpayment of rent was lifted Oct. 15, concerned renters found relief through the CDC order, which is set to expire Jan. 31. The order requires tenants to opt in by signing a CDC declaration form and delivering it to their landlord.
With the burden placed on tenants, many landlords started eviction proceedings in hopes of recouping the thousands of dollars in unpaid rent while also allowing the courts to decide whether their tenant was in fact covered.
Stout Management Co. President Taylor Verhaalen told the Review-journal that the company is leaving “it up to the courts to interpret how they’re going to enact the CDC moratorium.”
Storke said the CDC order was written in a way that leaves things open to interpretation, especially when it comes to no-cause evictions.
“It did not explicitly state within the CDC order that no-cause evictions were covered, so that kind of created a discrepancy with the interpretation through the justice courts,” he said, adding that Sisolak’s directive clears up the confusion with specific guidelines.
Bailey Bortolin, policy director at the Nevada Coalition of Legal Service Providers, said landlords are “driving trucks through” the CDC order.
“The workarounds and loopholes of the CDC protection led to it being really ineffective when applied to Nevada state law,” Bortolin said.
Same but different
Sisolak’s order, known as Directive 036, covers:
■ Tenants who cannot pay their full rent because of a substantial loss of household income, significant loss of compensable hours of work or wages, a layoff or extraordinary out-of-pocket medical expenses resulting from circumstances related to the coronavirus pandemic
■ Tenants who are likely to become homeless or be forced to move into a shared living situation if evicted
■ Tenants who expect to earn no more than $99,000 in annual income in 2020 or no more than $198,000 if filing a joint tax return
■ Tenants who were not required to report income in 2019 to the IRS or who received a stimulus check.
As with the CDC order, tenants must opt in.
According to the state order, tenants who meet the directive’s requirements must give their landlord “an affidavit or a declaration swearing under penalty of perjury” that they meet each of the criteria.
Storke said that in his experience courts have also accepted the CDC declaration form, since Sisolak’s moratorium mirrors the provisions in the CDC’S.
The state’s order also says that once tenants provide their declaration to a landlord, there can be no lockout, notice to vacate, notice to pay or quit, eviction or other proceeding related to the eviction moratorium against the renter.
Bortolin said it’s important for nonpaying tenants to be proactive, especially if they receive an eviction notice.
“It’s really important that people understand that they absolutely must respond to any eviction notice they receive in order to assert the defense that they qualify for eviction protections,” she said. “Otherwise, the eviction may be granted regardless of the fact that they qualify.”
Clearing the air
Sisolak acknowledged the financial burden being placed on landlords with his latest moratorium.
“I know I’ve asked landlords to sacrifice during this pandemic, and I am asking you again to do so for a few more months as we push through what I hope is the last surge of this virus,” he said when announcing the directive about two weeks ago.
Landlords may request an exemption if their property is facing foreclosure before the order expires on March 31, but they are required to present evidence in court.
The order allows landlords to charge late fees, interest or penalties, and tenants who can pay rent are required to continue making their payments.
Landlords who think a tenant is taking advantage of the moratorium can challenge the order but must have a copy of the tenant’s declaration and provide evidence showing why the tenant does not meet the eligibility requirements.
Bortolin said it’s likely landlords will still move forward with evictions despite receiving a tenant’s declaration, but at a cost.
“The court can sanction landlords who move forward with an eviction with no actual evidence that the person doesn’t qualify,” she said.
Susy Vasquez, executive director of the Nevada State Apartment Association, agreed, noting that the directive is clear on who is protected. But she said some landlords will still take legal action.
“Landlords are not working with those who have not responded to requests for payment arrangements or refuse to allow us to apply for rent assistance on their behalf, leaving us no other option than to evict,” she said in a statement. “We will continue legal action on those not protected by the directive and allow the courts to rule on eviction.”