Blog
Law Offices of Chance M. McGhee

Call Today for a FREE Consultation

210-342-3400

Archive for the ‘covid benefits’ tag

New Federal Eviction Moratorium

September 7th, 2020 at 7:00 am

The Centers for Disease Control and Prevention (CDC) just asserted its COVID-fighting power to stop most residential evictions through 2020. 

 

On Friday, September 4, 2020, a federal order went into effect temporarily stopping certain residential evictions throughout the country. Issued by the Centers for Disease Control and Prevention (“CDC”), it’s titled “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19.”  The legal basis and purpose of the Order is “to temporarily halt residential evictions to prevent the further spread of COVID-19.”

It covers residential rentals, NOT home mortgage foreclosures.

The Renters Covered by this Order

The CDC Order states that any “landlord… shall not evict any covered person from any residential property… during the effective period of the Order.”

Most residential renters unable to pay their rent likely qualify as a “covered person.” To be a “covered person” an individual must meet a number of conditions:

  • 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) [under] the CARES Act.”
  • Has “used best efforts to obtain all available governmental assistance for rent or housing.”
  • Is “unable to pay the full rent” because of one or more of the following:
    • a “substantial loss of household income
    • a reduction in “hours of work or wages”
    • lay-off
    • “extraordinary [unreimbursed] out-of-pocket medical expenses” (exceeding 7.5% of adjusted annual income)
  • Eviction would likely result in either homelessness “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.”

Covers All “Residential Property” through the End of 2020

The Order is very broad, including “any property leased for residential purposes.” This explicitly includes “any house, building, mobile home or land in a mobile home park, or similar dwelling leased for residential purposes… .”  Because this list is inclusive it MAY include other types of rental circumstances not listed (such as a rented houseboat?). “Residential property” does NOT include “any hotel, motel, or other guest house rented to a temporary guest or seasonal tenant.”

The Order is effective from September 7 through December 31, 2020. It could possibly be “extended, modified, or rescinded” at any time.

Renters’ Declaration to Qualify for the Protection

The procedure to take advantage of the eviction moratorium seems to be straightforward. The tenant reviews, signs, and gives the landlord a two-page declaration form. Here is the Declaration as provided by the CDC.

It starts with a quick explanation for how to use the Declaration. It then lists the qualifying conditions listed above (and a couple others discussed below).

Each adult renter included on “the lease, rental agreement, or housing contract should complete” it. Deliver a copy to your landlord, property owner, or whoever has the right to evict.

It must be signed under penalty of perjury. Meaning “you can be prosecuted, go to jail, or pay a fine if you lie, mislead, or omit important information.”

Major Potential Penalties for Noncomplying Landlords

The Order includes serious criminal penalties for landlords which don’t comply. Potential fines range from up to $100,000 and/or a year in jail for individual violators and $200,000 for business violators. If a violation “results in death,” the potential fines are two and a half times higher.

Significant Limitations of the Order

The most important practical problem with this Order is that tenants must still pay the missed rental payments later. Immediately after December 31, 2020 the landlord “may require payment in full for all payments not made.” These include payments missed both before and during the moratorium period. The amount due can also include all “fees, penalties, or interest for not paying rent” allowed under your rental agreement.

Furthermore, even during the moratorium period the tenant must make partial rent payments “as close to full payment as the individual’s circumstances permit.”

Also, careful: evictions can continue during the moratorium for reasons other than nonpayment of rent. Specifically the Order does not stop evictions for:

“(1) Engaging in criminal activity while on the premises;

(2) threatening the health or safety of other residents;

(3) damaging or posing an immediate and significant risk of damage to property;

(4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or

(5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).”

Note: the Order does not stop any state or locality from creating a stricter moratorium on residential evictions.

Last thing: the Order does nothing for landlords who need tenant rental payments to pay their own mortgages. Because of prior state and local eviction moratoria, many landlords have already not been receiving rental income for months. The Order essentially passes the economic pain temporarily from tenants to landlords.

This impact on landlords, and the short-term relief for tenants, puts pressure on Congress for a better solution.

 

States’ Reactions to Trump’s Unemployment Benefits Extension

August 24th, 2020 at 7:00 am

  

How are states responding to Trump’s Memorandum providing $400 (or maybe $300?) weekly extended unemployment benefits? It varies widely.

 

Last week we explained the President’s Memorandum of August 8 which extended reduced federal unemployment benefits. The $600 weekly benefit had expired on July 31. The House of Representatives had previously passed a bill extending the $600 benefits into early next year. The Senate had proposed to extend the benefits but at only $200 weekly. The two Houses of Congress were not resolving their differences. Then the Memorandum directed the Federal Emergency Management Agency (FEMA) to fund supplemental unemployment benefits out of its Disaster Relief Fund. This was to cover $300 of a $400 weekly benefit. The remaining $100 weekly was to come from the states.

National Developments Since the Memorandum

The Memorandum raised some confusion, especially about the states’ contribution. The President’s contemporaneous remarks indicated that the federal money would only be available for states that paid their $100 share.

But this implication was changed through a 6-page U.S. Department of Labor letter of guidance issued on August 12. It relieved states of paying the $100 share in order to receive the $300 federal contribution. States could pay the $100 share to their unemployed residents, in order to pay out a $400 weekly supplemental benefit. Or states could choose not to pay the $100, resulting in only a $300 weekly benefit.

So What Have States Decided?

States are all over the map, both in their decisions and where they are in the process. As of this writing (Saturday, August 22, 2020), many states have applied to FEMA to get started while others have not yet decided what to do.  One state—South Dakota—has decided to decline the assistance. About 14 states’ applications to FEMA for the assistance have been approved, while others are in process. Most states are going to pay $300 weekly, but at least 3 are paying $400.

Here are additional details about what’s happening at 7 states, to give an idea of the variety of situations:

Indiana

Governor Eric Holcomb announced last Wednesday (Aug. 19) that the state would apply for the federal $300 benefit. It would not be paying the state’s additional $100 weekly.

FEMA approved Indiana’s application on August 21. The commissioner of the Indiana Department of Workforce Development, Fred Payne, says that “it will take maybe 2 to maybe 4 weeks for us to get this in place.” There are additional details on the Department’s website.

Kentucky

Governor Andy Beshear announced last Wednesday (Aug. 19) that the state would apply for the federal $300 benefit. It would also add the state’s $100 additional amount for a total of $400 weekly. Since FEMA is doling out the money in 3-week increments, the current plan is to go at least these 3 weeks, longer if funds are available. Because these benefits are retroactive, this first installment covers the weeks between July 26 and August 15.

FEMA approved the application on August 21. The first $400 payments are expected to pay out in early September.

Texas

Governor Greg Abbott announced in a press release last Thursday (Aug. 20) that the state would apply for the federal $300 benefit. The press release made no reference to the state paying the additional $100.

FEMA approved Texas’s application on August 21. The above press release stated that “eligible claimants should expect to receive the additional benefits on their first payment request on or after August 23, 2020. These funds will be backdated to the benefit week ending August 1, 2020.”

New Jersey

As of Friday (Aug. 21), Governor Phil Murphy had not yet decided whether to apply for the additional federal benefit. His chief counsel, Matt Platkin said on Friday: “They’ve never run it through FEMA this way. And there’s some concern that if they were to come back – if Congress were to come back and enact an extension of the $600 that then the state would have to go back and recoup this money… .” The governor concluded: “If we can do it and we’re not on the hook for that back $100, and it doesn’t come back in the future where we’re going to have to repay any or all of that, we’ll sign up,” Murphy said. “But we’ve got to get guidance on that first.”

California

California applied last Wednesday (Aug. 19) for the federal $300 benefit. It will not be paying the additional $100 weekly.

FEMA approved its application on August 21. California’s Employment Development Department says that it will receive $4.5 billion, with the possibility of additional funding going forward.” This apparently is to cover $300 weekly benefits “for a limited period of time, a minimum of three weeks.” Coverage is for “weeks of unemployment dating back to August 1.”

West Virginia

Back on August 10, the Monday after Trump signed the Memorandum, Governor Jim Justice committed to paying the state’s $100 share. “Hands down, period, West Virginia is going to pay it,” he said. The governor added: “I believe that the federal government will eventually reverse their stance on that and that they will pay the full 100 percent in the end. But we’ve got the money set aside to make it work either way.”

According to a press release last Wednesday (Aug. 19), Workforce West Virginia is in the process of applying to FEMA. As of this writing (Aug. 21), the application has not yet been approved. According to Scott Adkins, acting commissioner of WorkForce West Virginia, “The federal government requires each state to set up a system that complies with the program. We are in the process of doing that now.”

Montana

Montana’s Department of Labor & Industry (DLI) applied to FEMA back on August 15, and sent additional information on August 17. It announced on Wednesday (Aug. 19) that FEMA approved its application for the extended benefits. Montana will be paying the additional $100 weekly. It’s doing so out of Montana’s allocation of the federal CARES Act Coronavirus Relief Fund. Montana’s DLI press release of August 20, 2020.

Acting DLI Commissioner Brenda Nordlund said. “Programming to meet the new requirements is underway and we should be up and running as soon as possible.”

 

Trump’s $400 Weekly Unemployment Benefits Extension

August 17th, 2020 at 7:00 am

Trump’s Memorandum Providing $400 Weekly Unemployment Benefits from August to December Is Complicated.

 

A Quick History

The CARES Act’s $600 per week additional federal unemployment benefits expired on July 31, 2020. Section 2104 of the CARES Act.  Back in May the U.S. House of Representatives had passed the HEROES Act extending these $600 benefits through January 31, 2021. Section 50001 of the HEROES Act. Then on July 27 the Senate announced its HEALS Act; it reduced the additional federal benefit to $200 per week. (This was to last through September, and then transition into a total unemployment amount of 70% of lost wages.) The Senate bill did not come up for a vote in the Senate.  Intense efforts to reconcile the House of Representatives’ HEROES Act and the Senate’s HEALS Act have so far gone nowhere.

Trump’s Memorandum on Authorizing the Other Needs Assistance Program

 Then on August 8, 2020, President Trump signed a “Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019.”

This Memorandum creates an “Assistance Program for Lost Wages.” This potentially provides for a weekly “lost wages assistance” of $400 per week. Theoretically it would cover the period from August 1 through December 6, 2020. See Sections 4—6 of the Memorandum.

But there are a series of practical challenges.

Can the President Act without Congress on This?

The Constitution gives Congress the power of the purse: to make laws about collecting and spending tax money. U.S. Constitution, Article 1, Section 8. Not the President. The Memorandum is clearly about spending billions of dollars of tax money. So how does Trump get around this?

He uses a law passed by Congress, the Disaster Mitigation Act of 2000. This law mostly pertains to federal housing assistance after a major disaster. But it also allows the president to provide for “Financial Assistance to Address Other Needs.” Specifically, the law allows for “financial assistance… to address… other necessary expenses or serious needs resulting from the major disaster.” 42 U.S.C Section 5174(e)(2).

This law empowers “the President, in consultation with the Governor of a State,… [to] provide [the] financial assistance… to individuals and households… .” 42 U.S.C Section 5174(a)(1).

So there’s at least a sensible argument that Trump can spend money to extend unemployment benefits needed from the pandemic.

But Where Does the Money Come From?

Under the Memorandum the new unemployment money comes from two sources.

First, the Federal Emergency Management Agency’s (FEMA) Disaster Relief Fund “has more than $70 billion in emergency assistance funding available.” The Memorandum directs “up to $44 billion” of this money to go towards the unemployment benefits. The remaining “at least $25 billion” in to be “set aside” for “ongoing… and potential 2020 disaster costs.” 75% of the $400 weekly benefits are to come from this $44 billion from the Disaster Relief Fund.

Second, the Memorandum says that the remaining 25% to fund the extended benefits is to come from the states. It references the CARES Act’s $150 billion earmarked to states and some other local governments for COVID-related costs. The Memorandum asserts that “more than $80 billion [of these] dollars remain available.”

Are These Sources of Money Actually Available?

Start with the 75% federal share. To keep it simple here, assume that above-mentioned Disaster Mitigation Act contemplates supplemental unemployment benefits to be a “serious need” for people unemployed during the pandemic.  Let’s put aside the wisdom of dedicating nearly 2/3rds of this natural disaster fund for this purpose.

One bit of reality is that the $44 billion the Memorandum earmarks for this purpose is only enough to cover 4 or 5 weeks of benefits. That barely makes a dent in the August to December period referenced.

How about the States’ Share?

As for the states’ 25% share, this provision comes with a bunch of practical challenges.

First, many states vehemently disagree with the Memorandum’s assertion that “more than $80 billion remain available” from the CARES Act. The states counter that this money is necessary for other absolutely critical pandemic purposes. In many cases already been explicitly earmarked for those purposes.

Second, beyond these CARES funds, the Memorandum has states use “other State funding,” to pay its 25% share. But states are in dire financial straits. Tax collection is significantly down and expenses are significantly up because of the pandemic. This includes huge increases in state unemployment benefit payouts, which continue at historic highs. State legislatures are going into emergency sessions to address the severe shortfall. Unlike the federal government, states must balance their budgets every year. They simply do not have money to pay for this new program.

Third, the Memorandum also says that “States should also identify funds to be spent without a federal match” if the federal money runs out. So after 5 weeks of the federal government paying 75%, the states are supposed to pay for the entire program. If there’s no money for 25%, there certainly isn’t money for 100% of the cost.

So Where Does This Now Stand?

Arguably the Memorandum was mostly meant as leverage to get Congress to agree on some kind of unemployment benefits extension. It’s been more than a week (as of this writing on August 17) but there’s been no progress there.

If you had been kept afloat by the $600 weekly federal unemployment benefits, this is an intensely frustrating time.

 

Call today for a FREE Consultation

210-342-3400

Facebook Blog
Back to Top Back to Top