While the eviction moratoriums are over, and benefits and programs from the Coronavirus Aid, Relief, and Economic Security (CARES) Act have ended, the 30-day eviction notice provision for nonpayment of rent does not have a sunset clause and remains in effect, unknown to many landlords, property managers, attorneys and even judges.

The CARES Act requires landlords to provide a 30-day notice to tenants prior to eviction for nonpayment of rent if the rental property is a covered property. Determining whether a tenant’s rental unit is a covered dwelling under the CARES Act can present a challenge. 

Covered dwelling units

The basic requirement is that a tenant living in a “covered dwelling unit” must receive a 30-day notice to vacate before an eviction can be commenced for nonpayment of rent. It’s the status of the property, not the tenant, that is key. 

The act defines “covered dwelling” to include substantially any type of residential tenancy so long as the premises is in a “covered property” and the tenant actually occupies the premises. The term “covered property” includes any property that participates in certain federal housing programs or that has a federally backed mortgage loan. While the definition is detailed, it essentially boils down to whether there’s federal government funding or backing of the unit. Or it may depend upon whether any tenant in the premises receives Section 8 or other rental assistance.

The CARES Act covers properties supported by the U.S. Department of Housing and Urban Development (HUD), the U.S. Department of Agriculture (USDA) and the U.S. Treasury under the low-income housing tax credit (LIHTC), as well as properties with federally backed mortgages, for example, from FHA, Fannie Mae and Freddie Mac. Covered housing programs include programs such as Section 8 housing and properties that are eligible for the LIHTC. Last year, the Consolidated Appropriations Act of 2022 expanded covered housing programs to encompass federal housing programs providing affordable housing to low- and moderate-income persons by means of restricted rents or rental assistance. 

Determining if a property is covered by the CARES Act

• NLIHC database: The National Low Income Housing Coalition (NLIHC) has a searchable database at nlihc.org/cares-act that helps identify if a property is covered by the CARES Act. It contains data on millions of apartments in multifamily housing insured by the FHA or securitized by Fannie Mae or Freddie Mac, and millions more supported by LIHTC, HUD and USDA programs. A database visitor can search the table by ZIP code or city. The database is not comprehensive; it does not include data on single-family rental homes of one to four units that are also covered under the CARES Act, and it may not include all Fannie Mae and Freddie Mac multifamily mortgages.
• HUD property search: FHA-insured or multifamily-assisted properties can be searched using the database at www.hud.gov/program_offices/housing/mfh/hsgrent/mfhpropertysearch. The FHA tool does not include properties that are part of HUD’s Public and Indian Housing, Housing Choice Vouchers, Project-Based Vouchers, Public Housing, or Community Development Block Grant programs.
• Fannie Mae property search: The Fannie Mae tool can be found at www.knowyouroptions.com/rentersresourcefinder.
• Freddie Mac multifamily property search: The Freddie Mac tool can be found at myhome.freddiemac.com/renting/lookup.

There are currently no lookup tools that include rental properties of one to four units backed by Fannie Mae or Freddie Mac.

Aside from the search tools, landlords should have access to mortgage documents they or their attorneys can use to determine if a property is covered by the CARES Act. For federal housing programs, these documents may include housing assistance payment contracts, HUD lease addenda, or other documents or correspondence with public housing agencies, voucher administrators or other such entities. For mortgage loans, landlords should have copies of their notes or mortgage instruments, closing documents, servicing notices, account statements or other correspondence. Landlords can also contact their mortgage loan servicers to ask about the presence of federal mortgage insurance.

A 30-day notice must be used if the landlord is seeking eviction due to nonpayment of rent and the property is a covered property under the CARES Act.

Landlord pointers

Property is not a CARES Act-covered property

If the premises where the tenant lives is not a CARES Act-covered property, the landlord can serve notices for nonpayment of rent and any other rental agreement breaches and proceed with evictions per state law. 

In these instances, tenants or their attorneys may question whether proper notices are being served. A landlord’s failure to provide the 30-day notice for a CARES Act property can be used by tenants as a defense to an eviction action. A faulty notice could be grounds for a dismissal of the eviction, and, at worst, investigation and sanction by the Consumer Financial Protection Bureau (CFPB), which administers and enforces the CARES Act.

Landlords may work with their attorneys if a tenant’s counsel or the court question whether the premises is a CARES Act property requiring the 30-day notice.

In this situation, the following might be needed:

• A landlord affidavit that there is no mortgage on the premises, perhaps with evidence from the title company confirming that fact.
• A landlord affidavit that the landlord is seeking remedies for nonrent breaches or filing an eviction based on nonrent breaches. The CARES Act only applies to a failure to pay rent.
• An affidavit from the landlord’s mortgage loan servicer or lender that the premises is not a CARES Act property.

Property is a CARES Act-covered property

The basic requirement is that a tenant living in a “covered dwelling unit” must receive a 30-day notice to vacate before an eviction can be commenced for nonpayment of rent.

• A landlord may wish to use the WRA’s new form, Thirty Day Notice to Vacate — Nonpayment of Rent — Cares Act Property. This form is available for WRA members in the Transactions (zipForm Edition) program as well as subscribers of the WRA’s PDF forms library.
• A landlord can consult with their attorney for advice for the best plan of action.
• Some landlords swear by mediation. There is far less confrontation with mediation rather than going to court, and the mediator may help the tenant seek rental or other assistance.