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    Wisconsin Lawyer
    February 07, 2023

    30 Days' Notice Requirement: Making or Breaking Eviction Cases

    For many people, COVID-19 is now in the rearview mirror. But at least one statute enacted as part of pandemic-relief legislation, a requirement for 30 days' notice of eviction from some rental properties, remains in effect and might have substantial effects on landlords and tenants.

    Nicholas Toman & Luke Dremel

    keys to rental apartment

    The Coronavirus Aid, Relief, and Economic Security Act1 (the CARES Act) was passed by Congress in the spring of 2020 to provide pandemic relief. One of the many types of relief was an extended notice period for ending tenancies in residential rental properties. The new 30-day eviction notice is required for many tenancies under federal law. Attorneys who advise landlords should ensure that proper procedures are being followed for evictions, and those who advise tenants should question them as to which notices were provided by the landlord. A landlord’s failure to provide the 30-day notice can be used by tenants as a defense to an eviction action.

    While many of the CARES Act benefits and programs have ended or will end, the 30-day notice provision lacks a sunset clause and appears to be of long-term duration. Accordingly, lawyers practicing on either side of landlord-tenant law would be wise to familiarize themselves with the CARES Act and the properties to which it applies.

    Statutory Provisions

    CARES Act Provision. The mechanics of the CARES Act notice provision are simple, although the application of the definitions gets somewhat complex. 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. The 30-day notice provision states as follows:

    Nicholas (Nick) Toman Nicholas (Nick) Toman, Marquette 2008, is managing attorney – housing at Legal Aid Society of Milwaukee Inc.

    Luke DremelLuke Dremel, U.W. 2021, is an associate attorney at Legal Aid Society of Milwaukee Inc.

    “NOTICE. – The lessor of a covered dwelling unit –

    (1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate.”

    A covered dwelling unit is defined as a dwelling that:

    “(A) is occupied by a tenant –

    (i) pursuant to a residential lease; or

    (ii) without a lease or with a lease terminable under State law; and

    (B) is on or in a covered property.”2

    The application of this test will most often be determined by the final element – whether the tenant occupies a dwelling in a “covered property.” A covered property is defined as:

    “any property that

    (A) participates in –

    (i) a covered housing program (as defined in section 12491(a) of Title 34 [section 41411(a) of the Violence Against Women Act of 1994 (VAWA)]; or

    (ii) the rural housing voucher program under section 1490r of Title 42 [section 542 of the Housing Act of 1949]; or

    (B) has a –

    (i) [f]ederally backed mortgage loan; or

    (ii) [f]ederally backed multifamily mortgage loan.”3

    Other Federal Statutes Cross-referenced in CARES Act. The language of covered property is expansive and for most tenants applies through CARES Act section 4024(a)(2)(A)(i) or VAWA.4 Covered housing programs as defined in VAWA include programs such as Section 8 housing and properties that are eligible for the low-income housing tax credit (LIHTC).

    In 2022, through bipartisan legislation in the Consolidated Appropriations Act of 2022,5 VAWA’s covered housing program was expanded. As amended, the law includes “any other Federal housing programs providing affordable housing to low- and moderate-income persons by means of restricted rents or rental assistance, or more generally providing affordable housing opportunities, as identified by the appropriate agency through regulations, notices, or any other means.”6

    Since the start of the pandemic, many tenants have received rent assistance through programs such as emergency rental assistance under the Consolidated Appropriations Act, 20217 (hereinafter ERA1) and emergency rental assistance under the American Rescue Plan Act of 20218 (hereinafter ERA2). Both ERA1 and ERA2 should meet the definition under the expanded VAWA of a federal program providing affordable housing to low-income persons by means of rental assistance. Thus, any property receiving funds under ERA1 or ERA2 for any given month must provide 30-day termination notices for all tenants.

    The definition of covered dwelling does not require that the tenant be enrolled in any of the programs. Instead, covered property is defined as any property that “participates.” The requirements of enrollment in the housing program are met by the property itself rather than by the tenant. The tenant must have occupied the dwelling with a valid tenancy. Therefore, any protections that one tenant receives under CARES Act section 4024 apply to every tenant in the property. As a result, ERA1 and ERA2 funds received by a landlord for any tenant would put the entire property under the protections of the CARES Act.

    Identifying Specific Properties to which CARES Act Notice Provision Applies

    Identifying CARES Act properties can be challenging. Tenants can use publicly accessible resources to find covered properties for multifamily housing in federal programs. There is a searchable public database for CARES Act properties for multifamily housing that is insured by the Federal Housing Administration, securitized by Fannie Mae or Freddie Mac, or associated with federal programs such as the LIHTC, the U.S. Department of Housing and Urban Development, or the U.S. Department of Agriculture. The National Low Income Housing Coalition operates the database, which is searchable by city or zip code for all properties that are within these categories.9

    In contrast, much more difficult to find are properties that are subject to the CARES Act because of receipt of federally backed mortgage loans for single-family rental homes of one to four units or because of rental assistance payments made to the property owner through ERA1 or ERA2 programs. A person must make an appointment with the county register of deeds to confirm if any mortgage loans for single-family rental homes are federally backed.

    Determining whether ERA1, ERA2, or other individual-based federally funded program payments such as Section 8 apply to a property can be done only by engaging in formal discovery procedures or by obtaining a statement that the tenant or another tenant in the property receives rental assistance though these programs.

    Due to the difficulties faced by defendants, most of whom are self-represented, on an accelerated eviction schedule, courts should still require the CARES Act affidavit that was filed in many counties during the moratorium. Without a statement as to the CARES Act’s applicability, a court cannot accurately assess the termination notice required to establish the prima facia elements in an eviction action.


    Congress deemed it appropriate to extend notice requirements for tenancies touched by federal programs in the CARES Act. The 30-day notice is relevant for a significant number of tenancies under federal law going forward, and lawyers, judges, and court commissioners should familiarize themselves with the new requirements.


    1 Pub. L. No. 116-136, 134 Stat. 281, § 4024(c) (March 27, 2020).

    2 15 U.S.C. § 9058.

    3 Id.

    4 34 U.S.C. § 12491(a).

    5 Pub. L. No. 117-103, 136 Stat. 49 (March 15, 2022).

    6 34 U.S.C. § 12491(a)(3)(P).

    7 Pub. L. No. 116-260, 134 Stat. 1182 (Dec. 27, 2020).

    8 Pub. L. No. 117-2, 135 Stat. 4 (March 11, 2021).

    9 Nat’l Low Income Hous. Coalition, CARES Act, (last visited Jan. 17, 2023).

    » Cite this article: 96 Wis. Law. 33-35 (February 2023).

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