Deanne M. Rymarowicz is associate counsel at the National Association of REALTORS®.
Tenant Rights and the Pandemic
COVID-19 raises legal concerns related to evictions and fair housing.
July - August
COVID-19 has altered the rulebook for property managers and investment property owners for the foreseeable future. Balancing the pressures faced by tenants struggling to pay rent due to job loss with your need to keep up with expenses and safety measures presents distinct challenges. Two of the biggest concerns affecting rental properties are the patchwork of eviction moratoriums and the unique fair housing issues and disability protections related to COVID-19. Here’s how to navigate these issues.
Evictions and Tenant Rights
The CARES Act enacted in late March instituted a temporary moratorium on certain evictions. Through July 25, the law prohibits landlords from initiating eviction actions or charging late fees or other penalties for nonpayment of rent to tenants residing in a property that participates in a federal assistance program or is subject to a federally backed mortgage or federally backed multifamily mortgage loan. That said, however, this temporary moratorium neither precludes a landlord from initiating an eviction for reasons other than nonpayment nor relieves tenants from responsibility for payment of the late rent once the moratorium is lifted.
But take note: After the moratorium is lifted, the CARES Act requires landlords to provide 30 days’ notice before evicting a tenant for nonpayment. And states, along with numerous counties and cities, have similarly responded to concerns over displaced tenants during COVID-19. As of May, a reported 42 states and the District of Columbia, plus many counties and cities, have also issued eviction moratoriums.
These pauses may be more expansive than the CARES Act. This means that property managers and owners should be sure to familiarize themselves with all applicable laws before initiating an eviction proceeding or taking any action against a tenant for nonpayment of rent.
Fair Housing Compliance
The pandemic also raises unique fair housing issues, including whether COVID-19 constitutes a disability under the federal Fair Housing Act. While a court may ultimately need to resolve this question, given the severity of the virus, it is advisable that COVID-19 be treated as a disability for purposes of the act.
Property managers and other real estate professionals should be sure to provide equal housing opportunities for individuals with disabilities, and engage with tenants who request reasonable accommodations due to COVID-19. Such reasonable accommodations may include allowing a tenant to remain in the unit beyond the lease term in order to self-isolate, temporarily ceasing any entry by others or showings of the unit, and making an exception to a no-visitors policy for caregivers.
All that said, the Fair Housing Act doesn’t require real estate professionals to provide assistance or housing to someone who poses a direct threat to the property manager or others. So, unless the threat posed can be mitigated by a reasonable accommodation, the property manager may not be required to assist the individual.
Keep in mind these fair housing best practices for working with the public in the wake of COVID-19:
- Limit in-person activity, and instead leverage technology to meet with prospective tenants, complete rental applications, and execute leases.
- Offer contactless key exchanges.
- Take precautions when in-person activity must take place. Ensure social distancing, require face coverings, and limit the number of people at a showing or meeting.
- Consider using a health questionnaire to ask all prospective tenants to self-disclose if they have COVID-19 or are experiencing symptoms.
To learn more about fair housing compliance during the pandemic, visit nar.realtor/coronavirus.