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With state eviction order lifting, what protections do tenants have and how can they use them?

Michelle Rindels
Michelle Rindels
EconomyReal EstateState Government

Oct. 15 is finally here — the day Gov. Steve Sisolak said a statewide eviction moratorium that lasted more than six months would finally lift in Nevada.

But with a federal moratorium in place, what does the deadline really mean?

Jim Berchtold, the directing attorney at the Consumer Rights Project at the Legal Aid Center of Southern Nevada, said his organization — which provides free legal services to the community — has been receiving hundreds upon hundreds of calls to a hotline from people desperate for help. Increasingly, those are from people facing eviction.

A moratorium on evictions enacted by the federal Centers for Disease Control and Prevention in early September offers protections to a wide swath of Americans until the end of the calendar year. But it requires tenants to be proactive — namely, signing a declaration invoking the protections and presenting it to landlords — and tenants might still find themselves subject to eviction proceedings by landlords seeking to test the limits of the CDC order.

But Sisolak, at a press conference on Wednesday, pointed to the CDC moratorium as his response to Nevadans fearful that the end of the state directive might mean they’re booted from their homes. And he said he didn’t plan to extend the parallel state protections, saying doing so would be “duplicative.”

In an interview Wednesday with The Nevada Independent, Berchtold answered questions about the implications of the end of the state moratorium and the remaining CDC eviction ban. Responses have been lightly edited for length and clarity.

What is your fear about what will happen on Oct. 15?

Our big fear is that tenants will simply not know about the protections that are available under the CDC moratorium. I think everyone has been used to what's happening under the governor's emergency directive. 

For the CDC order, you have to opt into it. You have to take some affirmative action to make sure that you're protected under it. We want to make sure that tenants know that they can be protected. They need to take action to protect themselves, and they need to look for accurate information, because there's a lot of faulty information out there.

What are the requirements to invoke the CDC moratorium?

One, you have to be unable to pay your rent. Two, you have to have made a good faith effort to at least make partial payments. Three, you have to have applied for and sought out rental assistance. You have to make less than $99,000 a year, or have received a stimulus payment for under the CARES Act. And lastly, you have to attest that if you were to be evicted, you could potentially be homeless or have to move into some kind of group living situation. 

The CDC order is really clear about its purpose. Its purpose is to keep people housed, to keep people from moving around, and to make sure that the spread of COVID isn’t increased by people being evicted. So that's really what the declaration is focused on. 

Tenants need to read carefully, because potentially, they would be subject to penalties for perjury if they aren't eligible for the declaration. But if they are, and they can truthfully attest to those things, sign it, get it to your landlord, and keep proof that you did it.

When do you advise tenants to fill out the CDC declaration? Do they need to wait until eviction proceedings have begun?

There is no deadline for providing the CDC declaration and there's no reason to wait to provide the CDC declaration. What we're really encouraging tenants to do is get a copy, review it carefully because it doesn't apply to everybody — you have to meet certain qualifications for it to apply to you. 

But if it applies to you, sign it, give it to your landlord, make sure that you have some proof that you gave it to your landlord. But there's no reason to wait. If you qualify under the CDC declaration, give it to your landlord now.

What do tenants need to do to meet the requirements of making partial payments?

That's kind of a strange requirement, and it's going to vary widely from tenant to tenant. Basically, you have to say I've done my best to make partial payments under my particular circumstances.

We talk to tenants all the time who have not had any income at all for six months. So in that situation, what they can pay is probably zero. So I think it's going to just vary widely depending on the tenant circumstances.

The moratorium requires tenants make a good faith effort to secure rental assistance. What does that look like?

It is certainly to the tenant’s benefit to explore every option they can think of, whether that's the CHAP program through the county, whether there are some federal programs you could potentially reach out to.

Honestly, the rental assistance is drying up pretty quickly, so there may not be much a tenant can do to fulfill that requirement. But what they can do, they should do so that they can truthfully say, ‘Yes, I gave it my best shot.’

The CDC moratorium seems more expansive than the state moratorium. What differences can tenants expect now that we’re operating under the CDC moratorium?

We're hopeful that it won't make much of a difference now that we have the CDC order in place. There is some disagreement about what the CDC order actually covers. Landlords are trying to read the order extremely narrowly, so that only evictions for nonpayment of rent are covered.

They're trying to skirt it in every way possible. So we are getting a lot of tenants who are calling who are saying, ‘Wait a minute, I gave my landlord a CDC declaration, doesn't that mean I'm protected? And why am I receiving this eviction notice? And why is my landlord filing an eviction case?’ And so there's just a lot of confusion out there about what's allowed and what's not.

The landlords are trying mightily to test that. And so they are filing evictions right now. They're filing no-cause evictions, they are filing evictions when a lease term has ended, and they are trying every tack they can take to try to get around the protections of that order and narrow it as much as possible. 

That is why tenants have got to protect themselves. They've got to give that declaration and they've got a file a response to any eviction notice they've got on file with the court, and they need to attach a copy of that declaration and they need to make the argument in court, ‘This applies to me.’

Because this pandemic has been going on so long, most people's leases have expired. So most people could get a no-cause eviction. So that renders the CDC order basically meaningless. It doesn't protect anybody if all a landlord has to do is think of another clever way to evict the tenant. And that's happening.

If they end up in front of a judge, if the landlord moves forward with an eviction, and they need help making the argument that that CDC order applies to them, then they need to call their local legal aid provider and get some legal assistance because that argument needs to be made.

Does this apply to everyone? Are undocumented people eligible for the protection?

There is nothing in the CDC order that would indicate that it wouldn't apply to people who don't have legal status. So as far as we know, it applies to everybody.

The eviction mediation program is supposed to take effect on Oct. 15. How do tenants and landlords take advantage of that?

The mechanics are pretty simple. If a tenant receives a notice from their landlord — an eviction notice for nonpayment of rent — during that seven-day notice period, the tenant can go down to the court and can file an answer with the court. In that answer, the tenant can request mediation. 

Similarly, the landlord can request mediation when they file with the court. So it can be either the landlord or the tenant to request but if either one does, then they get diverted to the mediation program. A mediator gets assigned, the mediator will give them notice when they hear when the mediation date is, the parties will show up, they sit down together with the mediator to facilitate a conversation between them. And ideally, they'll be able to work out some creative solutions to avoid eviction. 

When you're in this summary eviction process, and you end up in front of a judge, really all the judge can say is either ‘Yes, the eviction is granted’ or ‘No, the eviction is denied.’ In mediation, the landlord and the tenant can come up with anything they want to come up with. It could be whatever solution works for both of them, whatever they're willing to accept, and whatever they can offer. 

At the end of the mediation, if they're able to reach a resolution, the mediator helps them create an agreement. And they're done and the case gets dismissed. If they're not able to reach a resolution, then the summary eviction hearing goes forward, and the judge decides whether eviction is appropriate. 

The mediation program only gets triggered when a party files the court. So we are repeatedly encouraging tenants — even if you've given your landlord that CDC declaration, if you receive an eviction notice, you absolutely have to file with the court just like you normally would. 

What you should do is file your answer with the court and attach a copy [of the CDC declaration] to your answer. Otherwise, the judge is going to have no idea that there is the issue of the CDC declaration in this case. So that's a way of notifying the court, ‘Look, I've given my landlord a CDC declaration, and I don't think I should be evicted.’ But if the tenant does nothing, if the tenant fails to file an answer in response to that eviction, the tenant could still be evicted.

What are the penalties if a landlord violates the moratorium or a tenant violates files the declaration untruthfully?

If a landlord violates the CDC order, it's a criminal penalty of up to one year in jail and up to a $100,000 fine for one instance of violation. If that violation results in a tenant being evicted and dying, the fine bumps up to $250,000. 

Now, that's for individual landlords. For businesses who are landlords, the violation is a $500,000 fine. So it's steep. So landlords need to be really careful about how they proceed. Now for tenants, because the declaration is signed under penalty of perjury, the penalty would be the state penalty for perjury. It is a fine and potentially a prison term. So both sides need to be careful.

To be clear, this isn’t rental forgiveness. This is just the deferral of a tenant’s obligation?

Like under the governor's moratorium, there hasn't been any rental forgiveness. This is all just basically kicking the can down the road a little bit. 


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