Clayton & McCulloh has closely monitored Florida Governor Ron DeSantis’ mortgage foreclosure and eviction moratorium via Executive Orders beginning with No. 20-94. See, e.g., What the Heck is Going On with Florida Foreclosures?! and Limited Extension of Mortgage Foreclosure and Eviction Relief. The most recent extension – pursuant to EO 20-211 - expired at 12:01 a.m. on October 1, 2020, so for the first time since April 2, 2020, no Florida-imposed moratorium precludes a lender from proceeding with a foreclosure action, or a landlord from proceeding with an eviction action, for non-payment. However, that does not necessarily mean a sudden landlord/lender free-for-all has arrived.

In fact, the reported rationale for Gov. DeSantis allowing Florida’s moratorium to expire is the nationwide residential eviction moratorium enacted by the U.S. Centers for Disease Control and Prevention (“CDC”) in early September 2020. See “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19.” Under the CDC Order, qualified individuals cannot be evicted from their residence, through December 31, 2020, for non-payment of rent, if they each individually provide their landlord/payee a “declaration” regarding their inability to pay rent, in a form substantially similar to one created by the CDC. The CDC Order still allows eviction for reasons other than non-payment of rent. Accordingly, it could - but would not necessarily - preclude a landlord from declining to renew a lease and evicting based on the lease expiring.

The CDC Order imposes criminal penalties on individuals up to $100,000 and/or one year in jail if no death results from the violation, or up to $250,000 and/or one year in jail if a death results from the violation. These monetary penalties double for “organizations” (presumably, corporations). Moreover, any penalty “otherwise provided by law” may also be imposed. Accordingly, violating the CDC Order is a bad idea. Such violations are not defined in the CDC Order, and could thus ostensibly include even requesting the issuance of a Writ of Possession following the entry of a judgment.

The CDC Order affords some prospective relief to landlords: despite deferring final enforcement of a lease, it does not relieve any individual of any payment obligation, or charging or collecting related fees, penalties, or interest on unpaid installments. It also does not appear to prohibit a court from completing a foreclosure sale, which could ostensibly mean that a lienholder (e.g., a mortgage lender or community association) could foreclose its lien, a certificate of title could be issued to the purchaser, and that purchaser could be “stuck” with the former occupants until at least December 31, 2020. It could also mean that as of January 1, 2021, all rent which was “deferred” by virtue of these eviction prohibitions will comprise more than half of the tenant’s 2020 rent, plus penalties, thus leading to the flood of evictions which many fear. It is also unclear whether any relief will be afforded to Florida landlords given their inability to fully enforce non-payment of rent since April 2020. If not, we an uncommon influx of foreclosure proceedings against landlords may be incoming, as many residential landlords use such rental income to pay the mortgage.

Finally, it is also crucial to note that while Gov. DeSantis’ moratorium was lifted, some local (e.g., district or circuit court-wide) Covid-19 related orders remain in effect. Nothing within any law presently in place (including the CDC Order) precludes local municipal or judicial orders from imposing more restrictions on landlords or foreclosing lienholders.