Due to Covid concerns, landlords have 2 big potential problems:
- Tenants who can’t pay the rent
- Tax losses they can’t deduct and/or bills that aren’t getting paid
Let’s discuss the tenants who can’t pay rent first.
Never before have we seen a nationwide moratorium on evictions for non-payment of rent. The current one runs through the end of 2020.
Most of the expanded unemployment benefits has expired as has any limited government rent assistance that was available. The result is that millions of tenants will be unable to pay all or part of their rent in the coming months.
As horrible as that is, most of the landlords also have responsibilities and bills to pay. There may be limited mortgage relief for a few of these owners but the assumption seems to be that landlords have other resources to fall back on, which may be true in some cases but certainly not all. For some, normal tax consequences that would help relieve financial problems may not be available due to personal circumstances, discussed later.
What we saw in in the latter part of 2020, for those who are unaware, is a CDC eviction moratorium effective September 4, 2020 and running through the end of 2020. This replaces the eviction moratorium enacted March 27,2020 in the original CARES act which expired July 24,2020. So some landlords may have a year where more than half a year of rent goes unpaid, though all of the expenses and responsibilities go on.
This order generally bars residential landlords from evicting tenants for non-payment of rent if a tenant’s estimated 2020 income is no more than $99,000 (single) or $198,000 (married). This order applies to all types of residential rentals: houses, duplexes, apartment buildings, mobile homes, and mobile home spaces. There is no requirement that the rental be federally financed or the rent subsidized.
The CDC order does not apply to commercial properties, including motels and hotels. Nor does it apply to guesthouses rented to temporary guests or seasonal tenants-presumably excluding most Airbnb and similar short-term rentals.
To prevent an eviction, a tenant need only give the landlord a declaration signed under the penalty of perjury providing that the tenant
- Has used his or her best efforts to obtain all available government assistance for rent or housing
- Falls within the income restrictions
- Is unable to pay the full rent due to substantial loss of household income, loss of work or wages, or extraordinary out-of-pocket expenses
- Is using their best efforts to make partial payments that are as close to the full rental payments as the tenant’s circumstances permit, and
- Would likely become homeless or forced to move into and live in close quarters of a shared living space.
No proof is required that any of the declarations are true. The CDC has created a form declaration for tenants to use, https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf.
There is no time limit on when tenants must provide this declaration to their landlord- it can be done anytime before or after receiving a termination notice.
Individual landlords who violate the CDC order are subject to a fine of up to $100,000 and up to 1 year in jail. The fine goes up to $250,000 if the eviction results in death.
Fines are doubled for organizations such as LLC’s, corporations, and REIT’s.
State and local eviction moratoriums may supersede the Federal ones if protections against evictions are stronger.
SO WHAT ABOUT THE LANDLORD
Tenants still owe their rent. The moratoriums prevent evictions for non-payment but do not excuse or forgive tenants for not paying their rent. Tenants can be sued for unpaid rent. Though most tenants that find themselves in these circumstances have just cause for some kind of relief, there is certainly going to be abuse of these programs.
Some evictions are still possible under some circumstances and landlord’s can challenge a tenant’s CDC declaration in court.
Landlords can sue for unpaid rent. In such a case, you are attempting to collect a debt, not evict the tenant. You can obtain a money judgment, garnish wages (if any), or even proceed against the tenant’s bank accounts.
An eviction notice for non-payment can be filed at anytime. The court can put the suit on hold or enter a judgment, but will postpone the physical eviction until after the moratorium expires. This can speed up the eviction later.
If the tenant is one the landlord would like to keep, perhaps you can help the tenant find financial support from local churches or private charities. Links to government programs providing financial assistance for renters are available at https://legalfaq.org/.
Landlords can also work out a payment plan with struggling tenants, but they should get the plan in writing.
Landlords are under no obligation to offer a permanent rent reduction or any form of rent forgiveness. Also, there is no reward for any generosity provided. No tax deduction or other tax benefit.
Part 2 will be about the issues the landlord faces.
AFS – Tax preparation, tax problems, tax planning, bookkeeping, payroll