December 15, 2020 at 6:00 am
NOTE: This article addresses the Executive Orders, Pandemic Management Order, and CDC Order in effect on November 3, 2020. As the pandemic changes, these orders are all subject to change and this information may become outdated. Confer with your attorney when considering evicting a tenant to ensure compliance with the latest orders.
By: Bodie Colwell, Attorney with Preti Flaherty’s Creditors’ Rights & Bankruptcy Practice Group
Maine Executive Orders Relating to Evictions
On July 30, 2020, Governor Janet T. Mills signed an executive order extending the notice periods that must be given to tenants under the Maine eviction statute, 14 M.R.S. 6002. Specifically, for non-payment of rent, tenants must be given 30 days’ notice to terminate the tenancy. To terminate an at-will tenancy, tenants must be given 45 days’ notice. The 30-day notice for non-payment significantly increases the usual notice period (7-days) and may come as a surprise to many landlords.
Maine Court FED Procedures
While the state of emergency continues, landlords will need to file additional forms and provide information to tenants when commencing an eviction or forcible entry and detainer (“FED”) proceeding. Along with the complaint, the landlord needs to include a copy of pandemic order PMO-SJC-6 (as revised on November 3,2020), a copy of the FED Information Sheet which includes details on what to expect at the hearing, and a copy of Instructions for Accessing a Court Hearing Using Google Meet. If the landlord fails to provide the required information and forms, the court may dismiss the FED proceeding.
Additionally, there is a new procedure for FED process. The whole process from sending the initial notice to the final hearing will take more time than usual. First, there is a telephonic or video status conference. Then, the parties may participate in mediation (which can be held over video conference). Last, the final hearing which is held in person at the courthouse. If the landlord fails to appear at the final hearing, the eviction action may be dismissed with prejudice—requiring the landlord to wait for another month of non-payment and start the whole process again. If the tenant fails to appear and the landlord can show that the eviction is not prohibited by federal moratoria on evictions, the court may enter the FED judgment in favor of the landlord.
This procedure applies to eviction proceedings through December 31, 2020 and may be extended by court order. More information on this process is available here:
CDC Moratorium on Evictions
On September 1, 2020 the federal CDC has issued an order halting certain residential evictions. The order is currently in effect runs through December 31, 2020 (if it is not extended). The intent is to prevent evictions for non-payment of rent. The CDC order does not prohibit evictions based on (1) criminal activity by the tenant; (2) threatening health or safety of other residents; (3) damaging property; (4) violating a building code; or (5) violating any other contractual obligation (other than payment of rent) contained in the rental agreement.
The order covers any tenant that submits a declaration to their landlord. Tenants must swear that they are under an income threshold, are unable to pay full rent, and are using best efforts to make timely payments that are as close to full payment as possible. The declaration also requires that the tenant make under $99,000 a year in income, and that if evicted they would likely become homeless, need to move into a shelter or need to move into a new residence shared by other people who live in close quarters.
In order to be protected from eviction under the order, the tenant is required to submit the declaration to the landlord. If you receive a declaration from a tenant, confer with your attorney before taking any action. There are stiff penalties for landlords who pursue eviction against a covered tenant.
Alternatives to Eviction
If the process is too slow and burdensome, landlords may consider the alternatives to bringing a FED proceeding. Namely, landlords may find coming to an agreement with a tenant and offering cash-for-keys will save the expense and time related to a FED proceeding. In that situation, the landlord may find that getting a new tenant into the property sooner is worth paying the former tenant to leave.
Bodie Colwell is an attorney with Preti Flaherty’s Creditors’ Rights & Bankruptcy practice group. Bodie helps banks and businesses recover money owed to them and represents businesses in financial distress both in and out of court.
Original article published October 23, 2020, https://www.preti.com/publications/residential-evictions-and-the-pandemic-landlords-beware/