One of the risks of rental real estate is that you might not always get your rent payments. And in a pandemic, you may not be able to evict tenants for nonpayment of rent.
The CARES Act is an emergency measure designed to protect many Americans from economic fallout caused by the coronavirus pandemic and resulting shutdowns. It assists some renters by imposing a moratorium on rent-related evictions. Protected renters include those who:
Receive federal rental assistance from a voucher or grant program
Receive assistance through federally-subsidized housing programs or rent from landlords who receive such assistance
Rent a home financed with a federally backed mortgage (Fannie Mae, Freddie Mac, FHA, VA, USDA)
Landlords may also be eligible for shelter from mortgage foreclosure while rents are not coming in if their state provides such relief or if they have financed their building with a federally backed loan.
People are struggling financially, and about one-quarter of Americans have missed a rent or mortgage payment in 2020. Just because a tenant has missed rental payments, however, doesn’t mean you should definitely evict them after the CARES Act expires.
PROTECTIONS EXPIRING ON DECEMBER 31, 2020
Unless Congress extends current protections or passes a new stimulus package very soon, the following CARES Act provisions will end at the end of the month:
Eviction moratorium for nonpayment of rents due to COVID-19
Unemployment benefits for long-term unemployed due to COVID-19
Relief from federal student loan payments
Gig and freelance worker jobless benefits
This expiration means that tenants may be losing supplemental income and debt relief while trying to make up back rent to avoid foreclosure. And landlords may be faced with some tough decisions and an avalanche of evictions.
TO EVICT OR NOT TO EVICT?
If you have tenants who filed lawful declarations entitling them to protection from displacement for nonpayment of rent, what are your rights once the moratorium expires? And what are your obligations? Is eviction the right course of action right now?
There are several options for landlords with delinquent tenants after December 31, 2020:
Write off back rent and begin collecting rent from tenants going forward
Allow tenants to make up back rent over time
Evict non-paying tenants and replace them
The decision depends on the strength of your local rental market (how quickly you’ll be able to replace non-paying tenants with paying tenants), whether a tenant has secured new employment and your history with that tenant.
THE CASE FOR EVICTION
You may want to open eviction proceedings right away if one or more of these conditions is true:
Your tenant wasn’t that great even before COVID. If he or she clashed with other residents, damaged your property or had to be wrestled for the rent every month, now might be time to oust this tenant and screen for a better one.
The rental market in your town is healthy, and you’ll have no problem replacing a lousy tenant.
You want to make some significant repairs or improvements to the unit, which will be easier if it’s vacant.
You have decided to sell your rental property and want to do it quickly.
If the CARES Act provisions protect your tenant, proceed with eviction even more carefully than you usually would:
The CARES Act requires you to provide 30 days’ notice, so you can’t begin eviction before January 31, 2021.
Your state or local government may have enacted additional renter protections during the pandemic. Make sure that you’re allowed to initiate evictions when the CARES Act expires.
If you are taking advantage of mortgage forbearance for a federally backed multifamily mortgage, you cannot evict your tenant for nonpayment of rent.
To avoid damage to your property or expensive court filings, consider offering your tenants “cash for keys.” It can be substantially faster and cheaper to get them to move without incident in exchange for a few hundred dollars.
THE COST OF EVICTION
Many landlords underestimate the total cost of evicting a tenant. A contested eviction can cost over $5,000, and that’s assuming the tenant doesn’t leave you any goodbye “presents” on the way out:
Unpaid rent (3 months, averaging $3,000)
Legal fees to an attorney if you hire one ($500)
Court filing and administrative fees (varies by county, averaging $150)
Fees for hiring the sheriff to execute the Writ of Possession ($50)
Locksmith charges to change the locks on the day of the eviction ($150)
Repairs and junk removal ($1,000)
Cleaning costs ($500)
These average costs also don’t consider the additional requirements for preparing and showing a rental during a pandemic. You’ll have to provide PPE for prospective tenants, and you’ll need to disinfect after every property tour.
You might want to hold off on evicting good tenants who caused no problems and previously paid their rent on time. That’s especially true if there’s no guarantee that you’ll quickly find replacements.
Even if you want to evict a tenant, you may not be able to right away. In areas with local eviction moratoria, you might be able to file eviction papers with the court, but it may take time for your case to get on a court docket. And even if it’s now legal to evict for nonpayment of rent, your local courts may be backlogged with many cases, tying you up for months.
If you’re not sure that you can or want to replace your tenants, contact them and discuss a mutually beneficial solution. If they lost income due to COVID, has their situation improved? Are they able to cover their current rent or at least some percentage of their current rent? What about their back rents?
You can be accommodating and understanding without being a pushover if you come to a mutual agreement with your tenants and a payment schedule they can afford. A rule of thumb that mortgage lenders often use is that housing costs are affordable if they don’t exceed one-third of the month’s gross (before tax) household income. If the tenant is getting tax-free income, this percentage can go up a bit.
Get your agreement in writing with your tenants; you can do this with an addendum to your lease. Specify dates and payment amounts and what will happen if the tenant breaches the agreement. If you can’t agree or the tenant breaches the contract, cash for keys is probably your best solution.
No one likes evictions, but sometimes they are necessary. If you work with your tenants in good faith to minimize the need for evictions and to control the damage of necessary evictions, that may be the best outcome you can engineer.
If you can hold on a few more months, the rent income will likely begin flowing again as vaccinations become available and the economy recovers.