Enforcing the CARES Act 30-Day Eviction Notice Requirement

Created June 21, 2022

Updated: February 7, 2023

The federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act), took effect on

March 27, 2020, and imposed a partial residential eviction moratorium that restricted lessors of

“covered properties” from filing new eviction lawsuits for non-payment of rent or other

charges.

The CARES Act and also prohibited “fees, penalties, or other charges to the tenant

related to such nonpayment of rent,” and state that the lessor of a covered property could not

require a tenant to vacate except on 30 days’ notice—which notice could not be given until the

original moratorium period expired.

The initial 120-day moratorium period was never extended and expired on July 24, 2020. Yet

the 30-day CARES Act notice requirement remains in effect. Nevertheless, advocates continue

to report widespread noncompliance with this notice provision and a troubling lack of

consistency in judicial enforcement. A poll of Housing Justice Network members taken in the

late 2021 found that 78% of respondents observed seeing courts in their service areas either

sometimes or always fail to enforce the notice requirement—including 20% of respondents

seeing courts in their service areas decline to enforce the provision at all.

In 2022, NHLP again

surveyed HJN and found that a staggering 88% of respondents reported inconsistent or no

court enforcement of the CARES Act notice requirements.

Determining whether a property is covered

Since initial passage, probably the most challenging aspect of enforcing CARES Act protections

has been determining whether a particular tenant’s rental unit is a “covered dwelling.”

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

See 15 U.S.C. § 9058(b).

See 15 U.S.C. § 9058(c).

National Housing Law Project, “Evictions Survey: What’s Happening on the Ground” at 4 (Fall 2021),

https://www.nhlp.org/wp-content/uploads/NHLP-evictions-survey-2021.pdf

National Housing Law Project, “Rising Evictions in HUD-Assisted Housing: Survey of Legal Aid Attorneys” at 1 (July

2022), https://www.nhlp.org/wp-content/uploads/HUD-Housing-Survey-2022.pdf.

See 15 U.S.C. § 9058(a)(1).

See 15 U.S.C. § 9058(a)(1)(A).

Created June 21, 2022

Updated: February 7, 2023

term “covered property” then includes any property that participates in certain federal housing

programs or that has a federal backed mortgage loan.

• Coverage via participation in a federal housing program

Under the participation in federal housing programs prong, a “covered property” includes any

property that is covered by the Violence Against Women Act.

VAWA coverage extends not

only to HUD-subsidized low-income housing programs (such as public housing and housing

choice vouchers) but also reaches properties participating in the (U.S. Dept. of Agriculture’s)

Rural Development housing programs and the Low-Income Housing Tax Credit program

(administered through the U.S. Dept. of Treasury). Note that while RD vouchers were not

covered under VAWA at the time of passage, the RD voucher program was separately and

explicitly identified as a covered under the CARES Act .

The 2022 reauthorization of VAWA expanded the definition of “covered property” to include

several additional programs by name (including the Section 202 Direct Loan Program,

vouchers,

the federal housing trust fund,

VASH vouchers and other programs for providing

federal housing assistance to veteran families,

and transitional housing for victims of domestic

violence, dating violence, sexual assault, or stalking

), as well as a catch-all provision making

VAWA applicable to:

“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.” Consolidated Appropriations Act, 2022, Pub.L. 117-103, Div. W,

Sec. 601(2)(A), to be codified at 34 U.S.C. § 12491(a)(3)(P).

The changes in the 2022 VAWA reauthorization took effect on October 1, 2022.

See 15 U.S.C. § 9058(a)(2).

The VAWA -covered housing programs include: Public housing (42 U.S.C. § 1437d), Section 8 Housing Choice

Voucher program (42 U.S.C. § 1437f), Section 8 project-based housing (42 U.S.C. § 1437f), Section 202

housing for the elderly (12 U.S.C

. § 1701q), Section 811 housing for people with disabilities (42 U.S.C. § 8013),

Section 236 multifamily rental housing (12 U.S.C. § 1715z–1), Section 221(d)(3) Below Market Interest Rate (BMIR)

housing (12 U.S.C. § 17151(d)), HOME (42 U.S.C. § 12741 et seq.), Housing Opportunities for Persons with AIDS

(HOPWA) (42

U.S.C. § 12901, et seq.), McKinney-Vento Act homelessness programs (42 U.S.C. § 11360, et seq.),

Section 515 Rural Rental Housing (42 U.S.C. § 1485), Sections 514 and 516 Farm Labor Housing (42 U.S.C. §§ 1484,

1486), Section 533 Housing Preservation Grants (42 U.S.C. § 1490m), Section 538 multifamily rental housing (42

U.S.C. § 1490p-2), and Low-Income Housing Tax Credit (LIHTC) (26 U.S.C. § 42). See 34 U.S.C. § 12491(a)(3).

See 15 U.S.C. § 9058(a)(2)(A)(ii).

See Consolidated Appropriations Act, 2022, Pub.L. 117-103, Div. W, Sec. 601(2)(A).

See Consolidated Appropriations Act, 2022, Pub.L. 117-103, Div. W, Sec. 601(2)C).

See

12 U.S.C. § 4568; see Consolidated Appropriations Act, 2022, Pub.L. 117-103, Div. W, Sec. 601(2)(K).

See Consolidated Appropriations Act, 2022, Pub.L. 117-103, Div. W, Sec. 601(2)(L-N).

See Consolidated Appropriations Act, 2022, Pub.L. 117-103, Div. W, Sec. 601(2)(O).

Created June 21, 2022

Updated: February 7, 2023

Under 15 U.S.C. § 9058(a)(2)(A), participation (in a federal housing program affording coverage)

on behalf of any resident makes the entire property a “covered property.” That means if there

is one participating dwelling unit in a property, then all of the other, non-participating dwelling

units in the same property also qualify as occupants of “covered dwellings” entitled to the

notice required by the Act.

• Coverage based on a federally-backed mortgage or multifamily mortgage loan

Federally-backed mortgage loans include loans secured by any lien on a residential property

with 1-4 units that is “made in whole or in part, or insured, guaranteed, supplemented, or

assisted in any way, by any officer or agency of the Federal Government or under or in

connection with a housing or urban development program administered by [HUD] or a housing

or related program administered by any other such officer or agency, or is purchased or

securitized by the Federal Home Loan Mortgage Corporation or the Federal National Mortgage

Association.”

While the Fannie Mae and Freddie Mac-owned loans are best-known for being

covered under the CARES Act, other federally-backed loans include those insured by the Federal

Housing Administration, Veterans Administration, U.S. Department of Agriculture and HUD’s

Section 184 Indian Home Loan Guarantee program. A federally-backed multifamily mortgage

loan has the same definition, except that is secured by a property with five or more dwelling

units.

For advocates representing tenants who themselves participate in housing subsidy programs or

benefit from low-income housing tax credit rent limits, determining that the CARES Act notice

requirement applies should not be difficult. But discerning whether a property has a federally-

backed mortgage loan, receives voucher subsidies on behalf of other residents, or participates

in VAWA-covered programs with respect to tenants other than the advocate’s client can be

considerably more difficult and potentially impossible without cooperation from the landlord or

other third-parties.

Finding out whether a multifamily property is covered by the CARES Act

For multifamily (i.e., 5+ selling unit) properties, a number of public and private databases are

available by which advocates may look up whether they have coverage:

o National Low-Income Housing Coalition

o HUD Multifamily Assisted Properties

See 15 U.S.C. § 9058(b); see also Stacy Burleson v. Sun Plaza Ltd. P’ship, No. D-202-CV-02851 (Bernalillo Cty, New

Mexico, July 13, 2021), https://www.nhlp.org/wp-content/uploads/NM-Order.pdf.

15 U.S.C. § 9058(a)(4).

See 15 U.S.C. § 9058(a)(5).

https://nlihc.org/cares-act

https://www.hud.gov/program_offices/housing/mfh/hsgrent/mfhpropertysearch

Created June 21, 2022

Updated: February 7, 2023

o FHA-insured Multifamily Properties

o Fannie Mae Multifamily Lookup Tool

o Freddie Mac Multifamily Lookup Tool

Note that advocates and reporters reported significant numbers of errors, omissions, and

outdated entries in at least some of these databases—yet these are the best tools available

for ascertaining coverage without cooperation from the housing provider. Of arguably even

greater concern than inaccuracies, some significant potential sources of CARES Act coverage

are simply absent from these lookup tools altogether. This includes multifamily properties

that participate in tenant-based voucher programs (such as housing choice vouchers, RD

vouchers, or the Shelter+Care program) but which receive no other federal financial

assistance, as well as some multifamily properties financed through loans backed by the

Government National Mortgage Association (“Ginnie Mae”)—such a USDA or VA loans. While

Ginnie Mae does have a lookup tool available:

o Ginnie Mae Multifamily Search Pool Search

…the tool is not user-friendly and may not be searched by identifiers commonly available to

tenants, such as street address, development name, or even owner or legal description.

Tenants will also generally not know or have access to information from which to determine

whether other residents participate in tenant-based subsidy programs, particularly as tenant

privacy protections may limit housing authorities or other administrators in disclosing or

identifying properties where participants reside. In one case, a Nebraska trial court found a

landlord’s statement in advertising materials that it accepts housing choice vouchers as

sufficient to establish participation in that program for purpose of CARES Act coverage.

Finding out whether a 1-4 unit property is covered by the CARES Act

Single-family homes and other rental properties with fewer than five units are generally not

listed in publicly-available databases that reveal CARES Act coverage. Though Fannie Mae and

Freddie Mac both maintain lookup tools that borrowers can use to find out if their loans are

owned by either enterprise, running a search in either database requires a user to include the

last four digits of the borrower’s social security number and check a box confirming the user

either owns the property or has the owner’s consent to access the information.

https://hudgishud.opendata.arcgis.com/datasets/hud-insured-multifamily-properties

https://www.knowyouroptions.com/rentersresourcefinder

https://myhome.freddiemac.com/renting/lookup

https://www.ginniemae.gov/investors/investor_search_tools/Pages/multifamily.aspx

See William C. Stanek v. Jessie Reed, No. C120-9102 (Douglas Cty., Nebraska, June 12, 2020),

https://www.nhlp.org/wp-content/uploads/Douglas-County-Order-of-Dismissal.pdf

See https://ww3.freddiemac.com/loanlookup/ and https://www.knowyouroptions.com/loanlookup#.

Created June 21, 2022

Updated: February 7, 2023

An advocate might also be able to detect the presence of a federally-related loan by reviewing

the contents of any mortgages, deeds of trust, or other instruments recorded for a property.

Some federally-insured mortgage loans are likely to have this information in certain public

filings. However, loans subsequently acquired by federal enterprises are not. Also, localities

differ in making mortgage documents available to the public; in some communities, land

records are up-to-date and available on-line, which other communities may require in-person

visits to land records officers.

Though tenants will often lack the ability to determine whether a property is subject to CARES

Act coverage, a landlord should know or have access to the documents from which to find out.

For federal housing programs, these may include housing assistance payments 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 the

notes or mortgage instruments themselves, other closing documents, servicing notices, account

statements, or other correspondence. As noted above, both Fannie Mae and Freddie Mac

maintain websites that borrowers (but not others) may use to look-up whether each enterprise

owns their loan.

Landlords can also contact their servicers to ask about the presence of

federal mortgage insurance.

Given this discrepancy in access to information, courts should find that landlords who file

eviction actions (for nonpayment of rent or other charges) bear the burden of proving and

pleading either that the tenant was given 30 days’ notice or else that the premises is not

covered under the CARES Act. Consistent with this interpretation, a number of state and local

court systems implemented rules and pleading forms for landlords to verify non-application of

the CARES Act during the original 120-day eviction moratorium.

At present, such rules remain

active in Georgia, Iowa, Oklahoma, and New Jersey.

Regrettably, many other courts that

adopted such rules rescinded or allowed them to expire after the 120-day filing moratorium

ended, even though the need to ascertain CARES Act coverage for purposes of the ensuing

notice provision is substantially the same.

See, e.g., Joey Campbell, “How do I know if my loan is FHA insured?” Sapling.com,

https://www.sapling.com/6030875/do-loan-fha-insured, last visited June 13, 2022

See, e.g., Iowa’s CARES Act Landlord Verification Form,

https://www.iowacourts.gov/static/media/cms/CARES_Act_Landlord_Verification_5_D550A0B615603.pdf, and

Michigan Form DC 540, https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/dc504.pdf.

Advocates in jurisdictions that adopted such rules and forms should review the relevant Covid-19 emergency orders

to determine whether these requirements remain in effect.

See Georgia Uniform Superior Court Rule 49: Emergency Dispossessory (May 4, 2020); see Iowa Supreme Court

Order In the Matter of Ongoing Provisions for Coronavirus/Covid-19 Impact on Court Services at pp. 11-12, para 38

May 22, 2020); see Oklahoma Supreme Court Order Regarding the Coronavirus Aid, Relief, And Economic Security

Act, 2020 OK 22 (May 01, 2020); see New Jersey Directives Dir. 21-21 at 2 and attachment 9 at 21-22 (Aug. 23,

2021), New Jersey Request for Residential Warrant of Removal (CN 12836, 2022), https://fill.io/Request-For-

Residential-Warrant-Of-Removal.

See 2020 Ark. 166 (Apr. 28, 2020) (Arkansas rule expired July 25, 2020); Idaho Supreme Court Order In Re

Eviction Moratorium under the CARES Act (May 4, 2020) (expired July 25, 2020); In re: Illinois Courts Response to

COVID-19 Emergency – CARES Act (May 22, 2020 (expired Aug. 24, 2020); Michigan Supreme Court Administrative

Created June 21, 2022

Updated: February 7, 2023

On October 1, 2022, Vermont became the first state to adopt a court rule specifically designed

to enforce the CARES Act notice requirement when Rule of Civil Procedure 9.2 went into

effect.

The rule provides that an eviction complaint must “contain or be accompanied by a

declaration showing either compliance with the 30-day notice requirement of the CARES Act . . .

or that the dwelling from which the plaintiff seeks to evict the tenant is not located on or in a

‘covered property.’”

The Vermont rule, like many of the prior rules, also provided for a form

declaration which lists different avenues of coverage the landlord must decline the applicability

of.

Hopefully more states will see the wisdom of either retaining rules adopted during the

initial filing moratorium or adopting new rule specific to implementing the notice requirement.

Whether or not such a rule is in effect in the jurisdiction, advocates should move to dismiss any

eviction complaint that does not aver the lack of participation in a VAWA-covered program or

RD voucher program or the absence of a federally-backed mortgage loan (for a property with

four or fewer dwelling units) or federally- backed multifamily mortgage loan (for a property with

five or more units). And even if the pleadings contain such averments, advocates should not

accept such claims at face value.

Before trial, advocates should zealously endeavor to learn whether a property is covered using

whatever means are available. This includes conducting formal discovery (if allowed) into the

presence of any contracts the landlord may have with PHAs or federal housing contract

administrators or participation in any tenant-based voucher or subsidy programs, as well as

regarding any financing, liens, or security interests on the property. Even if such investigation is

not successful, courts will likely be more inclined to require landlords to plead or prove the

absence of CARES moratorium coverage when tenants can show they were unable to verify

coverage despite diligent efforts.

When cases come to trial, advocates should utilize cross-examination to ensure that landlords

who fail to give 30 days’ notice have verified the lack of coverage through every possible

means. The general approach should entail asking landlords, as to each federal housing or loan

program it might plausibly participate in, whether (i) the landlord knows if the property

Order 202-08 (Apr. 16, 2020) (expired July 25, 2020); In re Filing an Affidavit of Compliance with Fed. Cares Act in

Landlord-Tenant Cases, Judicial Administration Docket No. 537, (Pa. Jul. 16, 2020) (Pennsylvania rule expired Aug.

24, 2020); South Carolina Supreme Court Order 2022-09-12-01 RE: Rescission of Orders Regarding Certification of

Compliance with the Coronavirus Aid, Relief, and Economic Security Act in Evictions and Foreclosure Forms (Sept.

12, 2021). Texas repeated extended its rule, Texas Supreme Court, Fifteenth Emergency Order Regarding the

Covid-19 State of Disaster, Misc. Docket No. 20-9066 (May 14, 2020), but allowed it to expire on March 31, 2021.

See Texas Supreme Court, Thirty-Fourth Emergency Order Regarding the Covid-19 State of Disaster, Misc. Docket

No. 21-9011 (Jan. 29, 2021) (expired Mar. 31, 2021).

See Vt. R. of Civ. Pr. 9.2.

See Vt. R. of Civ. Pr. 9.2(b).

See Vermont Court Form 100-00031 - Declaration of Compliance with the CARES Act (10/2022,

https://www.vermontjudiciary.org/sites/default/files/documents/100-

00031%20Declaration%20of%20Compliance%20CARES%20ACT_0.pdf.

Created June 21, 2022

Updated: February 7, 2023

participates in the program and (ii) if the landlord claims to know that the property does not

participate, how and by what steps the landlord determined that lack of coverage. Advocates

may consider using the following checklist to guide such cross-examinations:

• Public housing;

• Project-based Section 8 housing or other HUD-subsidized multifamily;

• Housing Choice Voucher program;

• Section 202 housing for the elderly;

• Section 202 direct loan program

• Section 221 below market rate housing;

• Section 236 multifamily housing;

• Section 811 housing for people with disabilities;

• HOME Investment Partnership Program;

• Housing Opportunities for People with Aids;

• McKinney-Vento Act housing programs (including Shelter+Care voucher);

• Section 515 Rural Development rural rental housing;

• Section 514/516 farm labor housing;

• Section 533 USDA preservation grant housing;

• Section 538 USDA multifamily housing;

• Rural housing voucher program;

• Low-income housing tax credit program;

• Federal housing trust fund program

• VASH vouchers (or any other program that provides federal housing assistance to veteran

families);

• Transitional housing for survivors of domestic violence, dating violence, sexual assault, or

stalking;

• Fannie Mae owned mortgage loan;

• Freddie Mac owned mortgage loan;

• HUD Section 184 Indian Home Loan Guarantee

• Ginnie Mae backed mortgage loan:

o Federal Housing Administration

o Veterans Administration

o USDA direct or guarantee loan

• Any other federal program providing affordable housing to low- or moderate-income

persons by means of restricted rents or rental assistance;

• Any other federal program providing affordable housing opportunities as identified through

agency regulations, notices, or any other means

Any time a landlord denies knowledge as to whether the property is covered through any

particular path, or claims the property is not covered under a particular path but demonstrates

an insufficient basis for reaching that conclusion, the court should dismiss the case because the

landlord will have failed to meet its burden to prove the immediate right to possession. In

preliminary proceedings the possibility that a property might be covered tends to at least raise

a triable fact issue, meaning the court should at minimum set a trial date that allows an

opportunity for the parties to investigate and determine whether the property is covered.

Though courts should not require tenants to admit affirmative proof that a property is covered,

Created June 21, 2022

Updated: February 7, 2023

doing so anyway is obviously desirable where such evidence is present.

What about courts that don’t enforce the statute?

With the initial 120-day filing moratorium having long expired, many landlords, attorneys, and

courts appear to have presumed that the CARES Act notice provision must have also have

expired at some time in the past.

This is, of course, inaccurate; the notice provision carries no

expiration date or sunset clause and remains in force as a federal statute codified at 15 U.S.C. §

9058(c). Yet, as enforcement of the CARES Act notice requirement remains spotty and

inconsistent,

advocates should be prepared to correct such misplaced assumptions about the

notice requirement’s duration and other information deficiencies that may contribute to the

problematic compliance.

Importantly, there are now multiple court decisions interpreting and enforcing the CARES Act

notice provision. At the time of this writing, probably the most important of these decisions is a

decision from the intermediate appellate court in Washington State, Sherwood Auburn LLC v.

Pinzón, 521 P.3d 212 (2022). The tenants in Pinzón had fallen behind in rent and were given two

written eviction notices, which (this author) refers to as a “state law” notice and a “CARES Act”

notice.

The state law notice directed the tenants either to pay the delinquent rent or vacate

the premises within fourteen days, and stated that failure to do so “may result in a judicial

proceeding that leads to your eviction from the premises.”

The CARES Act notice referenced

the state law notice, and went on to say that “if a court so orders in any unlawful detainer

action, you may be required to vacate the residential unit in not less than 30 days from the date

of this notice.”

In net effect, the scheme of these notices was to say that the tenants had 14

days in which to pay or vacate, after which a summary eviction suit could be filed—and result in

the tenants’ physical eviction after 30 days.

In the event, the Pinzón tenants neither cured the default nor vacated the premises so the

landlord commenced an eviction lawsuit.

The tenants moved to dismiss, arguing the eviction

notices were deficient and summary proceeding prematurely filed because they landlord had

See, e.g., In re Arvada Village Gardens LP v. Ana Garate, Colorado Supreme Court No. 23SA34, 2023 WL 1101956

(Jan. 27, 2023) (directing landlord to show cause why relief should not be granted on a petition for extraordinary

relief from a trial court ruling that “Subsection (c) [of 15 U.S.C. § 9058] is not independent or separate from

subsection (b), they both expire 120 days from March 27, 2020.").

See supra, notes 3-4.

See Pinzón at 214-15.

Id. at 215.

Id. at 217 (“Sherwood Auburn's preferred interpretation of the notice provision would merely preclude the

superior court from enforcing a breach of a lease agreement during the 30-day notice period. It would not

preclude the landlord from commencing an unlawful detainer action during that time.”).

See Pinzón at 215.

Created June 21, 2022

Updated: February 7, 2023

not given them the full 30 days in which to vacate the premises.

The trial court, however,

ruled that although the notices could have been confusing as to the actual deadline to vacate ,

the tenants must not have been actually confused because they remained in the premises

beyond 30 days—and, in fact, the landlord did not commence the eviction lawsuit until more

than 30 days after the notices were given.

The trial court entered judgment for the landlord

and the tenants appealed.

The Court of Appeals set up the core issue as whether the CARES Act notice provision “requires

that tenants residing in ‘covered dwellings’ receive an unequivocal 30-day notice to pay rent or

vacate the premises before the landlord may commence an unlawful detainer action [or] simply

prohibits state trial courts from evicting tenants during the 30-day period following service of a

pay or vacate notice[.]”

For numerous reasons, the Court embraced the former interpretation.

First, the Pinzón court highlighted the statutory text of the CARES Act, which imposes the 30-

day notice restriction on lessors (of covered dwelling units)—not on courts or judicial officers.

“Sherwood Auburn[‘s] interpretation of the CARES Act notice provision,” the panel observed,

“would replace the word ‘lessor’ with the words ‘superior court.’”

Next, the court recognized that interpreting the CARES Act notice provision only to require 30

days’ notice before a judicial eviction could be executed would render the federal notice

provision meaningless.

In the court’s words:

“In Washington, where our state's unlawful detainer statute provides for a 14-day pay or vacate

notice in residential tenancies, a landlord subject to the CARES Act would nevertheless be

permitted to commence an unlawful detainer action after 14 days. Thus, the CARES Act would

provide no additional protection for tenants.”

Critically, the court rejected the landlord’s argument that even if an eviction case is filed after

14 days, tenants still benefit by being assured the right to remain in possession an additional 16

days because “service of the pay or vacate notice is the landlord requiring the tenant to quit the

premises.”

As the panel went on to explain, “it is the landlord—not the superior court—that

See Id. at 215.

See Id. at 214-15 (eviction notices served Dec. 21, 2021, unlawful detainer action commenced Feb. 12, 2022).

See Id. at 215

Id. at 216-17.

See Pinzón at 217.

Id. at 217.

Id. at 217-18.

See Pinzón at 218.

Id. at 218 (italics in original); see also 15 U.S.C. § 9058(c) (“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…”).

Created June 21, 2022

Updated: February 7, 2023

requires the tenant to vacate the premises” by serving a notice to vacate, “[t]he superior court

simply enforces that requirement if the tenant refuses.”

“Indeed,” wrote the court, “only after

the proper notice is provided and the cure period has expired can the tenant be said to be

unlawfully detaining the premises.”

Finally, the Court of Appeals made clear the dual notices the landlord provided in Pinzón were

confusing and thus deficient as a matter of law, for having failed to “unequivocally inform [the

tenants] that, pursuant to the CARES Act, they had 30 days from the date of notice to cure the

alleged nonpayment of rent or to vacate the premises.”

Implicit in the ruling was the court’s

rejection of any requirement for actual confusion on the part of the tenant; rather, “when the

notice provided does not accurately convey the correct time period to cure or vacate, the

notice is not sufficient.”

Though state appellate decisions are obviously not binding on courts in other states, Pinzón

should serve as highly persuasive authority in trial courts throughout the U.S.—and especially in

states that, like Washington, follow the rule that a landlord may not commence a summary

eviction proceeding until the deadline to vacate has expired and tenant’s continued occupancy

has become unlawful and in violation of the landlord’s right to possession.

Appendix 1 to this

memorandum shows that substantially every U.S. state and territory follows this basic rule at

least to some extent.

Advocates should note the Pinzón landlord has filed a petition seeking discretionary review in

the Washington Supreme Court, and that appellate cases remain pending in at least one other

jurisdiction (Colorado) at the time of this writing.

Otherwise, two additional reported trial court decisions reflect judicial acknowledgement of the

CARES Act notice provision. Both primarily concerned the question of whether compliance the

30-day notice is required for eviction cases based on grounds other than nonpayment of rent

(or other charges)—but in answering that question, backhandedly acknowledged the duty to

give that notice in nonpayment cases. One of those cases was West Haven Housing Authority v.

Armstrong, in which the court ruled on a statutory construction analysis that that “the 30-day

notice requirement is applicable to nonpayment of rent cases only and not to cases such as this

one brought for serious nuisance.”

Id. at 218.

See Pinzón at 217, citing Indigo Real Est. Servs., Inc. v. Wadsworth, 169 Wn. App. 412, 421, 280 P.3d 506 (2012)

(“Once a tenant is in the status of unlawful detainer, the landlord may commence an unlawful detainer action by

serving a summons and complaint.”).

See Pinzón at 221.

See Id. at 221, citing IBC, LLC v. Heuft, 141 Wn. App. 624, 633; 174 P.3d 95 (2007).

See Pinzón at 217.

See West Haven Housing Authority v. Armstrong, 2021 WL 2775095 (Conn. Super. Ct. Mar. 16, 2021), citing

Nwagwu v. Dawkins, BPH-C-21-5004438S (March 2, 2021, Spader, J.).

Created June 21, 2022

Updated: February 7, 2023

The second case, Watson v. Vici Community Development Corp., was a disability discrimination

action in U.S. District Court.

But the case also involved a separate claim seeking a declaratory

judgment to invalidate an eviction lawsuit the defendant had filed against the tenant in August

2020 without having given the 30 days' notice required by the CARES Act. The defendant

admitted having filed the eviction suit without serving the CARES Act notice but claimed that

notice was not required because the action was not based on nonpayment of rent:

"Instead, they assert that section 9058(c)’s notice requirement does not apply because its

eviction filing was not based upon the “nonpayment of rent.” See, 15 U.S.C. § 9058(b).

Defendants maintain that they commenced the August 25, 2020 eviction proceeding because

there was no valid lease agreement in existence (the lease agreement had been non-renewed in

March, 2019 and it expired at the end of May, 2019) and they sought to remedy an alleged

jurisdictional defect in the July 2019 eviction filing."

The court found the factual question as to the landlord's reason for the eviction precluded

summary judgment for either party—effectively holding that, if the eviction was indeed

motivated by nonpayment of rent (or other charges), then it was unlawful due to

noncompliance with the CARES Act.

In addition to court decisions, advocates may wish to consider drawing attention to various

administrative or regulatory materials reflecting the continuing viability of the CARES Act

notice. Perhaps of greatest importance is Vermont Rule of Civil Procedure 9.2, as discussed

above.

Otherwise, the HUD Office of Multifamily Housing Programs issued guidance to

multifamily owners on April 26, 2021, making clear that “[n]otwithstanding the expiration of

the CARES Act eviction moratorium, the CARES Act 30-day notice to vacate requirement for

nonpayment of rent, in [15 U.S.C. § 9058](c)(1), is still in effect for all CARES Act covered

properties.”

HUD’s Office of Public and Indian Housing issued a notice on October 7, 2021,

directed to the special attention of housing authorities, multifamily housing owners and

operators, and other stakeholders, stating similarly that, as of then, “the CARES Act provision

requiring 30-days’ notice to vacate for nonpayment of rent remains in effect for all CARES Act-

covered properties, including both public housing and properties assisted under HUD’s project-

based rental assistance programs.”

The Federal Housing Finance Administration announced

on September 14, 2022, its interpretation of “CARES Act section 4024(c)(1) to permanently

require a 30-day notice to vacate. As a result of this statute, the Enterprises changed both

See Watson v. Vici Cmty. Dev. Corp., No. CIV-20-1011-F, 2022 WL 910155 at 9-10 (W.D. Okla. Mar. 28, 2022).

Watson, 2022 WL 910155 at *10.

Id. at 10 (“The court concludes the issue as to defendants’ reason for commencing the August 25, 2020 eviction

proceeding and whether they violated the CARES Act is for one trial.”).

See supra notes 28-29.

HUD OFFICE OF MULTIFAMILY HOUSING PROGRAMS, “Questions and Answers for Office of Multifamily Housing

Stakeholders” at 18 (Q. 25) (Last Updated Aug. 9, 2021),

https://www.hud.gov/sites/dfiles/Housing/documents/MF_COVID-19%20QA_8_4_21.pdf

HUD PIH Notice 2021-29 (Oct. 7, 2021), https://www.hud.gov/sites/dfiles/PIH/documents/PIH-2021-29.pdf

Created June 21, 2022

Updated: February 7, 2023

existing and future loan agreements to require a 30-day notice to vacate at multifamily

properties with Enterprise-backed mortgages.”

The Consumer Financial Protection Bureau has posted extensive information on its website

advising tenants that they may “have the right to a CARES Act 30-day notice before [a] landlord

can ask [them] to leave or file an eviction” and describing different types of covered tenancies

and resources to find out if a property is covered.

These federal resources exist in addition to

information and materials from many states and local governments and nonprofit organizations

advising of the CARES Act notice requirement and to whom it pertains.

Alternative grounds that require 30-day notice prior to eviction for some HUD tenants

HUD published an interim final rule (IFR), Extension of Time and Required Disclosures for

Notification of Nonpayment of rent, which went into effect on November 8, 2021.

The IFR

mandates HUD housing providers to give 30-day notice to public housing and PBRA tenants

prior to eviction for nonpayment of rent. The 30-day notice must include information about

local emergency rental assistance programs. The IFR applies when HUD determines an

extended notice period is necessary to allow tenants more time to access federal funding when

the President has declared a national emergency. In the case of the Coronavirus pandemic,

HUD published supplemental guidance detailing the Secretary’s determination for making the

IFR effective during the current public health crisis.

The notice is still in effect, and per the

White House Blueprint for a Renters Bill of Rights, HUD intends to issue a notice of proposed

rulemaking “to build upon the previously issued [IFR and] propose to require that PHAs

administering a public housing program and owners of project-based rental assistance

properties provide no less than 30 days advanced notification of lease termination due to

nonpayment of rent.”

Letter from Sandra L. Thompson of FHFA to Diane Yentel of NLIHC and Shamus Roller of NHLP (Sept. 14, 2022);

see also FHFA.gov, “Tenant Protections for Enterprise-Backed Rental Properties in Response to Covid-19 (rev’d

Sept. 14, 2021), https://www.fhfa.gov/Media/PublicAffairs/Pages/Tenant-Protections-for-Enterprise-Backed-

Rentals_7282021.aspx.

See CONSUMER FINANCIAL PROTECTION BUREAU, “Protections for renters in multi-family housing or federally

subsidized housing,” https://www.consumerfinance.gov/coronavirus/mortgage-and-housing-assistance/renter-

protections/federally-subsidized/#30-day-notice, last visited June 14, 2022.

86 Fed. Reg. 55693 (Oct. 7, 2021).

DEP’T. OF HOUS. & URBAN DEV., Supplemental Guidance to the Interim Final Rule, Extension of Time and Required

Disclosures for Notification of Nonpayment of Rent PIH 2021-29 (Oct. 7, 2021).

DOMESTIC POLICY COUNCIL AND NATIONAL ECONOMIC COUNCIL, “White House Blueprint for a Renters Bill of Rights” at 17

(January 2023), https://www.whitehouse.gov/wp-content/uploads/2023/01/White-House-Blueprint-for-a-

Renters-Bill-of-Rights-1.pdf.

Created June 21, 2022

Updated: February 7, 2023

Appendix A: Ripeness of summary eviction proceedings by jurisdiction

Eviction lawsuits become ripe only once the plaintiff has acquired the present right to

possession. See 36A C.J.S., Forcible Entry & Detainer, § 7 (Sept. 2020). This has significance for

interpretation and enforcement of the CARES Act notice provision, 15 U.S.C. § 9058(c), because the

CARES Act provision entitles a tenant in a covered dwelling unit to at least 30 days’ notice before

eviction for nonpayment of rent or other charges. If a landlord does cannot acquire the right to

possession of a covered dwelling unit without first giving 30 days’ notice, then effectively this rule bars a

landlord in such jurisdiction from commencing a summary eviction lawsuit until 30 days’ notice to

vacate has been given and the deadline to vacate has expired. As the chart below indicates, substantially

every jurisdiction follows this basic rule to a greater or lesser extent. Notably, in some states a trial court

lacks subject matter jurisdiction over a premature eviction suit, such that the defense is non-waivable,

non-curable, and may be raised at any time, whereas in other states a court that is given jurisdiction

over summary eviction matters is considered always to have subject matter jurisdiction in such cases. In

the latter states, a premature filing will preclude judgment for the landlord, but the defense may be

subject to waiver.

Jurisdiction

Authority

Alabama

Follows rule, moderate

clarity

Moss v. Hall, 245 Ala. 612, 613, 18 So. 2d 368, 369 (1944) (“Our holdings are

to the effect that the provisions of Section 6, Title 31, Code of 1940, have

reference to a notice for the termination of the tenancy; and where such

notice is necessary to terminate the tenancy, still another ten-days' notice

must be given as condition precedent to institution of the unlawful detainer

suit under Section 967, Title 7, Code of 1940. This question is discussed in

Myles v. Strange, 226 Ala. 49, 145 So. 313, cited approvingly in the more

recent case of Garrett v. Reid, 244 Ala. 254, 13 So.2d 97. And the latter case

was approvingly cited upon this point in Hackney v. Griffin, 244 Ala. 360, 13

So.2d 772.”)

Alaska

Follows rule, high

clarity

Caswell v. Ahtna, Inc., 511 P.3d 193, 200 (Alaska 2022), reh'g denied (June

23, 2022) (affirming dismissal of premature eviction suit; “Alaska Statute

09.45.110 allows a lessor to file an FED action ‘on or after the date the

tenant or person in possession unlawfully holds possession of the dwelling

unit or rental premises by force.’ The statutory definition of ‘unlawful

holding by force” includes when ‘following service of a written notice to

quit ... a person in possession continues in possession of the premises ... at

the expiration of the time limited in the lease or agreement under which

that person holds.” AS 09.45.090(b)(2)(F)(i). ‘The service of a notice to quit

upon a tenant or person in possession does not authorize an action to be

maintained against the tenant or person for the possession of the premises

... until the expiration of the period for which that tenant or person may

have paid rent for the premises in advance.’ AS 09.45.130.”)

Arizona

Follows rule, high

clarity

Alton v. Tower Cap. Co., 123 Ariz. 602, 604, 601 P.2d 602, 604 (1979)

(“Tower claims that, because the September 8th letter informed Alton that

forcible entry and detainer proceedings would begin if he did not pay rent

by September 15, the five day notice requirement of A.R.S. s 12-1173(A)(1)

was met. We disagree. To allow the five day notice to be given before rent

is due and unpaid strips the notice requirement of any meaning. A landlord

Created June 21, 2022

Updated: February 7, 2023

could thereby inform his tenant each month, five days before rent was due,

that he intended to commence forcible entry and detainer proceedings if

rent was not paid on time. It is clear to this Court that A.R.S. s 12-1173 was

not intended to authorize this type of action. We hold, therefore, that the

written demand to surrender, which is a prerequisite to filing a forcible

entry and detainer action against a month to month tenant whose rent is

due and unpaid can only be made after rent has become due and unpaid.

Accordingly, a proper demand to surrender the premises was never made

upon defendant and the trial court incorrectly found that defendant had

committed a forcible detainer.”).

See also Bank of New York Mellon v. De Meo, 227 Ariz. 192, 195, 254 P.3d

1138, 1141 (Ct. App. 2011) (dismissing eviction case for failure to provide

90-day eviction notice required by Protecting Tenants at Foreclosure Act:

“Obviously, a five-day notice, even when followed by an unannounced 90–

day delay, is at best misleading. The noticed tenant could reasonably

conclude that all arrangements to vacate the property and relocate must be

concluded within the five-day notice period.”)

Arkansas

Follows rule, low clarity

Whitner v. Thompson, 188 Ark. 240, 65 S.W.2d 28, 30 (1933) (rejecting

appellant’s argument that unlawful detainer action had been filed without

the required three days’ notice because “the day of serving the notice may

be counted. The notice was served on appellant to vacate on September 2,

and suit was not brought until September 5, which was after three days'

notice had expired, counting the day of service.”).

California

Follows rule, high

clarity

Hsieh v. Pederson, 23 Cal. App. 5th Supp. 1, 7, 232 Cal. Rptr. 3d 701, 705–06

(Cal. App. Dep't Super. Ct. 2018) (“Where an unlawful detainer proceeding

is based on the tenant's breach, the cause of action does not arise until the

expiration of the notice period without the default being cured by the

tenant. (§ 1161, subd. 2; Downing v. Cutting Packing Co. (1920) 183 Cal. 91,

95-96, 190 P. 455.) The complaint cannot be filed until the full notice period

has expired, since the tenant is not guilty of unlawful detainer until the full

three days—or in the instant matter, 14 days—have expired. (Nicolaysen v.

Pacific Home (1944) 65 Cal.App.2d 769, 773, 151 P.2d 567 [‘tenancy is not

terminated upon the giving of the notice but upon the expiration of the

period therein specified’]; Lamanna v. Vognar (1993) 17 Cal.App.4th Supp.

4, 6, 22 Cal.Rptr.2d 501 [‘cause of action for unlawful detainer does not

arise until the three days required for proper notice have expired without

the tenant having paid the rent during that time”].) A complaint which is

filed prior to expiration of the full notice period can be dismissed as

premature. (Lamanna v. Vognar, supra, 17 Cal.App.4th at pp. Supp. 7-8, 22

Cal.Rptr.2d 501 [landlord's complaint was premature and had to be

dismissed]; Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1,

7, 167 Cal.Rptr. 353.)”).

Created June 21, 2022

Updated: February 7, 2023

Colorado

Follows rule, high

clarity

Hix v. Roy, 139 Colo. 457, 459, 340 P.2d 438, 439 (1959) (“[I]t has been the

law in this state that in an action for unlawful detainer the plaintiff to

recover must aver and prove a demand in writing for possession of the

premises as required by the statute, C.R.S. '53, 58–1–1 to 58–1–26. In this

instance the demand was defective in that (a) it did not unequivocally

terminate the lease pursuant to the terms thereof; (b) suit was brought

prior to January 17, 1959, the announced date of termination; (c) it was

conditional, and (d) the co-lessor did not join in the notice.”) (underline

added).

Connecticut

Follows rule, high

clarity

Towers v. Kelly, 199 Conn. App. 829, 837, 238 A.3d 732, 737 (2020) (“If the

tenant fails to vacate the premises within the designated time, the landlord

may cause a complaint to be served; see General Statutes § 47a-23a; and

the merits may be decided by the Superior Court.”); see also Lampasona v.

Jacobs, 209 Conn. 724, 730, 553 A.2d 175, 179 (1989) (“[B]ecause proper

notice to quit is a jurisdictional necessity, in order to determine whether

there was proper notice in this case the court had to determine which

summary process provision, §§ 47a–23 or 21–80, controlled. The dispositive

question in resolving which summary process scheme applied was whether

the defendant was such a resident of the plaintiff's mobile home park. If he

was such a resident, § 21–80 applied and the notice to quit had to be for a

duration of sixty days, and if he was not a resident, the general summary

process provision, § 47a–23, applied and an eight day notice to quit would

have been sufficient. The court, O'Connell, J., on remand, found that . . . the

defendant was a resident of the park. As a resident, the court applied the

summary process procedure for mobile home park residents pursuant to §

21–80 and found that the plaintiff had not given the defendant the required

sixty day notice to quit under subsection (b)(3)(B). Upon its finding, the

court dismissed the plaintiff's case for lack of subject matter jurisdiction

and did not rule on the merits of the plaintiff's constitutional claims.”

Delaware

Follows rule as to

nonpayment of rent,

high clarity

Appears to follow the

rule as to holdover

after lease expiration in

residential tenancies,

low clarity

Del. Code Ann. tit. 25, § 5502(a) (“A landlord or the landlord's agent may,

any time after rent is due … demand payment thereof and notify the tenant

in writing that unless payment is made within a time mentioned in such

notice, to be not less than 5 days after the date notice was given or sent,

the rental agreement shall be terminated. If the tenant remains in default,

the landlord may thereafter bring an action for summary possession of the

dwelling unit or any other proper proceeding, action or suit for

possession.”) (underline added).

Del. Code Ann. tit. 25, § 5702 (Unless otherwise agreed in a written rental

agreement, an action for summary possession may be maintained under

this chapter because:

(1) The tenant unlawfully continues in possession of any part of the

premises after the expiration of the rental agreement without the

permission of the landlord or, where a new tenant is entitled to possession,

without the permission of the new tenant; …

Created June 21, 2022

Updated: February 7, 2023

(10) A rental agreement for a commercial rental unit provides grounds for

an action for summary possession to be maintained[.]”

District of Columbia

Follows rule, high

clarity

Tatum v. Townsend, 61 A.2d 478, 480 (D.C. 1948)(“Here we are dealing with

a special statute which throws its protective cloak around all tenants of

dwelling property in the District of Columbia and says that no landlord shall

have the right to disturb their possession unless he can show that one of

the excepted situations exists. This cannot mean, as we read the Act, that a

landlord may sue first, at a time when he has no right to sue, and then by a

new set of circumstances which he manages to develop later on, obtain a

valid judgment.), cited with approval in Zanakis v. Brawner Bldg., Inc., 377

A.2d 67, 68 (D.C. 1977).

Florida

Follows rule in

residential tenancies,

moderate clarity

Compliance with

unlawful detainer

procedures is not

jurisdictional, but

failure to give required

lease termination

notice will preclude

entry of judgment for

landlord.

Bell v. Kornblatt, 705 So. 2d 113, 114 (Fla. Dist. Ct. App. 1998) (holding that

trial court had subject matter jurisdiction in summary eviction suit “even

assuming that the three-day notice failed to substantially comply with the

requirements of section 83.56(3) . . . Compliance with the statutory notice

requirement is merely a condition precedent to an eviction action under

part II of Chapter 83” – with Part II of Chapter 83 pertaining to residential

landlord-tenant relations); court notes further that a purported waiver of

an eviction notice, though permissible in non-residential tenancies, would

be “inapplicable to residential tenancies, since it provides that a provision

in a rental agreement is void to the extent that it ‘purports to waive ... the

rights, remedies, or requirements set forth in this part,’” citing Florida

Statutes Ann. Sec. 83.41(a)(a)); see Inv. & Income Realty, Inc. v. Bentley, 480

So. 2d 219, 220 (Fla. Dist. Ct. App. 1985) ("A statutory cause of action

cannot be commenced until the claimant has complied with all the

conditions precedent. Perry-Morse Seed Co. v. Hitchcock, 426 So.2d 958

(Fla.1983). Since the landlord failed to comply with the notice

requirements, this action was properly dismissed.").

See also Fla. Stat. Ann. § 83.59 (“If the rental agreement is terminated and

the tenant does not vacate the premises, the landlord may recover

possession of the dwelling unit as provided in this section.”)

Georgia

Follows rule, low clarity

Ga. Code Ann. § 44-7-50(a) “In all cases when a tenant holds possession of

lands or tenements over and beyond the term for which they were rented

or leased to such tenant or fails to pay the rent when it becomes due and in

all cases when lands or tenements are held and occupied by any tenant at

will or sufferance, whether under contract of rent or not, when the owner

of such lands or tenements desires possession of such lands or tenements,

such owner may, individually or by an agent . . . demand the possession of

the property so rented, leased, held, or occupied. If the tenant refuses or

fails to deliver possession when so demanded, the owner or the agent . . .

may immediately go before the judge of the superior court, the judge of the

state court, or the clerk or deputy clerk of either court, or the judge or the

clerk or deputy clerk of any other court with jurisdiction over the subject

Created June 21, 2022

Updated: February 7, 2023

matter, or a magistrate in the district where the land lies and make an

affidavit under oath to the facts.”

Trumpet v. Brown, 215 Ga. App. 299, 300, 450 S.E.2d 316, 317 (1994)

(“OCGA § 44–7–50 provides that in cases where a tenant fails to pay rent

when it becomes due, the owner may demand possession of the property.

If, after demand, the tenant fails to deliver possession of the property, the

owner may file an action to recover possession.“).

Outfront Media, LLC v. City of Sandy Springs, 356 Ga. App. 405, 408, 847

S.E.2d 597, 604 (2020) (“Under Georgia law, once a lease has been

terminated and the tenant refuses to vacate, the tenant becomes a tenant

holding over beyond the term of the lease, and the landlord is entitled to

institute a dispossessory proceeding.”).

But see Green Room, Inc. v. Confederation Life Ins. Co., 215 Ga. App. 221,

222, 450 S.E.2d 290, 292 (1994) (“Because a demand for possession would

have been useless, Confederation was not required to make it.”), quoting

Henderson v. Colony West, 175 Ga.App. 676, 678(2), 332 S.E.2d 331 (1985)

(“[I]t is not necessary for a landlord to prove a demand for possession when

it appears that the demand, if made, would be refused.”)

Guam

Follows rule, high

clarity

Archbishop of Guam v. G.F.G. Corp., 1997 Guam 12, ¶¶ 10-11 (Guam Oct.

17, 1997) (“Guam's unlawful detainer statute, 21 G.C.A. § 21103, was

derived from California's former unlawful detainer statute, Cal. Civ. P.Code

§ 1161. Unlike a common law breach of contract action, the purpose of an

unlawful detainer action is to recover possession. Proceedings in an

unlawful detainer action are intended to be summary in nature and are

required by law to be expedited. 21 G.C.A. § 21120. Also, because an

unlawful detainer action is a summary remedy, the unlawful detainer

statute must be complied with strictly. Cal–American Income Property Fund

IV v. Ho, 161 Cal.App.3d 583, 585, 207 Cal.Rptr. 532 (Cal.Ct.App.1984). To

maintain a valid unlawful detainer action under Guam law, the landlord

must establish that the tenant has defaulted in the payment of rent, is in

possession of the property without the landlord's permission, and that the

tenant has been served with a valid notice demanding payment or

surrender of possession. 21 G.C.A. § 21103. To be valid, the default notice

must be served at least five days prior to the filing of the action, must state

the amount of rent which is due, and must be served within one year of the

date that the rent became due. 21 G.C.A. § 21103(b)). (underline added).

21 G.C.A. § 21103. Unlawful Detainer Defined. “(a) When he continues in

possession, in person or by subtenant, of the property, or any part thereof,

after the expiration of the term for which it is let to him, without the

permission of his landlord . . . (b) When he continues in possession . . . after

default in the payment of rent, pursuant to the lease or agreement under

which the property is held, and five (5) days' notice in writing, requiring its

Created June 21, 2022

Updated: February 7, 2023

payment, stating the amount which is due, or possession of the property,

shall have been served upon him . . .”

Hawaii

Follows rule, high

clarity

But tenant must move

for dismissal before

commencement or trial

or waives prematurity

defense (i.e., not

jurisdictional)

Winston v. Lee, 102 Haw. 334, 76 P.3d 577 (2003), amended on

reconsideration in part (Nov. 12, 2003) (“Termination of a lease is not a

prerequisite element of summary possession.); see also 4000 Old Pali Rd.

Partners v. Lone Star of Kauai, Inc., 10 Haw. App. 162, 187–88, 862 P.2d

282, 293 (1993) (“[I]f the tenant, before the expiration of the cure period or

the commencement of the trial, moves for dismissal of the landlord's

complaint on the ground that it was filed prematurely, landlord's complaint

should be dismissed . . . On the other hand, if the tenant, after the

expiration of the cure period and the commencement of the trial, moves

for dismissal of the complaint on the ground that it was filed prematurely, it

would be an unreasonable benefit to the tenant, burden on the landlord,

preference for form over substance, and waste of judicial resources to

dismiss the complaint and require the landlord to file a new complaint. In

that situation, the landlord's complaint should not be dismissed.”).

Indiana

Follows rule, low clarity

O'Day v. Hanes, 111 Ind. App. 617, 40 N.E.2d 366, 370 (1942) (“The court in

disposing of the matter, in speaking of the action for possession of real

estate and for damages for the detention thereof by the tenant after his

possession became unlawful, we think correctly held that the proceeding

under said statutes is possessory in its nature and that the wrongful

possession of the defendant is of the gist of the action; that the proceeding

sounds in tort; that in the detention of the premises after the termination

of the tenancy, the occupant is a tort-feasor…”) discussing Campbell v.

Nixon, 2 Ind. App. 463, 28 N.E. 107 (1891).

Iowa

Follows rule, high

clarity

AHEPA 192-1 Apartments v. Smith, 810 N.W.2d 25 (Iowa Ct. App. 2011)

(“AHEPA's FED cause of action was premised upon the ground that Smith

was holding over after the termination of the lease accrued when the lease

was terminated. According to the notice provided to Smith, he was

informed the lease was terminated on October 31, 2010. The FED petition

filed November 2 was not barred by section 648.18 as clearly thirty days

had not expired between the date of termination of the lease and the date

of filing the FED action.”); see also Bernet v. Rogers, 519 N.W.2d 808, 811

(Iowa 1994) (Iowa FED action proper once occupant’s continued possession

has become unlawful)

Kansas

Follows rule, high

clarity

Gunter v. Eiznhamer, 165 Kan. 510, 516, 196 P.2d 177, 181 (1948) (3-day

termination “notice statute prescribes the time which must elapse ‘before

commencing the action’ for possession.”)

Kentucky

Follows rule, high

clarity

Shinkle v. Turner, 496 S.W.3d 418, 421–22 (Ky. 2016) (“In Kentucky, a

tenant is guilty of a forcible detainer when he refuses to vacate the

premises after his right of possession has ended. KRS 383.200(a) provides:

‘A forcible detainer is ... [t]he refusal of a tenant to give possession to his

Created June 21, 2022

Updated: February 7, 2023

landlord after the expiration of his term[.]’ [B]y operation of KRS 383.195,

Shinkle's tenancy and right of possession did not terminate until one month

after being notified to remove himself from the premises. It follows that he

could not be guilty of forcible detainer until after his right of possession

ended. KRS 383.210(1) creates a statutory cause of action for ‘a person

aggrieved by a forcible entry or detainer.’ To assert a valid claim for forcible

detainer, the plaintiff must allege a current and immediate right to

possession of the premises; otherwise, he is not ‘aggrieved by a forcible

detainer.’ Turner . . . alleges [Shinkle] unlawfully and forcibly detain[s] the

premises, and demand(s) possession of the premises be delivered to

Plaintiff.’ … These allegations were obviously inaccurate when made

because Shinkle's one-month period to vacate had not yet expired, and

thus his right of possession had not yet ended. Because Turner did not yet

have the right to possession of the premises, he was manifestly not ‘a

person aggrieved by a forcible entry or detainer.’ He had no statutory right

at that time to commence the action asserting the claim. A forcible detainer

action focuses upon and determines which party is entitled to present

possession of the property at the commencement of the action, not at

some later date. Bledsoe v. Leonhart, 305 Ky. 707, 205 S.W.2d 483, 484

(1947) (“The question for decision was whether or not appellant was guilty

of forcible detainer at the time the [forcible detainer] warrant was issued.”)

(emphasis added)”).

Louisiana

Follows rule, low clarity

Louisiana State Museum v. Mayberry, 348 So. 2d 1274, 1276 (La. Ct. App.

1977) (not abuse of discretion to dismiss eviction suit based on defective

notice, but noting court had option allowing landlord to amend the notice;

“[i]f the lessee fails to vacate after the notice required by Article 4701 of

the Code of Civil Procedure, he may be cited summarily to show cause why

he should not be ordered to surrender possession of the premises to the

lessor.”); see also New Orleans Hat Attack, Inc. v. New York Life Ins. Co., 95-

0055 (La. App. 4 Cir. 11/30/95), 665 So. 2d 1186, 1189 (1995) (“When a

lessee's right of occupancy ceases for any reason, the lessor is entitled to

utilize summary eviction proceedings to obtain possession[.]”).

Maine

Follows rule, high

clarity

Rubin v. Josephson, 478 A.2d 665, 668 (Me. 1984) (“[T]he plaintiffs'

contention that forfeiture or expiration of the term is not a prerequisite to

maintenance of a forcible entry and detainer action is only correct if the

legislature, when amending the statute in 1933, intended to relieve the

lessor of the obligation of alleging and proving expiration or forfeiture. Such

does not appear to be the case. The legislative history surrounding the 1933

amendment gives no indication of an intent to change the statute in such

manner.”).

Maryland

Follows rule, high

clarity

Hunter v. Broadway Overlook, 458 Md. 52, 58, 181 A.3d 745, 749 (2018)

(“The landlord does not have a viable claim on which to base its complaint

of breach of lease until the notice period has expired and the tenant has

refused to comply with the notice to vacate. Furthermore, ‘it is not

Created June 21, 2022

Updated: February 7, 2023

appropriate to find that a defective notice became effective through the

simple passage of time. The obligation to provide advance notice is a

forward-looking requirement intended to allow the tenant to plan for the

future.’”), quoting Curtis v. U.S. Bank Nat'l Ass'n, 427 Md. 526, 539, 50 A.3d

558, 566 (2012).

Massachusetts

Follows rule, high

clarity

Adjartey v. Cent. Div. of Hous. Ct. Dep't, 481 Mass. 830, 835, 120 N.E.3d

297, 304 (2019) (“Before filing a summary process action in court, a

landlord must serve his or her tenant with a ‘notice to quit’ informing the

tenant that after a specified period of time, the landlord intends to evict

the tenant. Once the period specified in the notice to quit has ended, a

landlord may serve his or her tenant with a ‘summons and complaint’

specifying, among other things, the reasons for the requested eviction and

the entry date by which the case will be commenced in the court.”), citing

Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 122, 113 N.E.3d 303

(2018) (“legally effective notice to quit is a condition precedent to a

summary process action and part of the landlord's prima facie case”).

Michigan

Follows rule, moderate

clarity

Park Forest v. Smith, 112 Mich. App. 421, 425, 316 N.W.2d 442, 444 (1982)

(M.C.L. § 600.5714(1)(b)(iii); M.S.A. § 27A.5714(1)(b)(iii) permits a landlord

to recover possession of a premises only after termination of a tenant's

month to month tenancy by notice to quit. If a tenant refuses to vacate the

premises after being served with a notice to terminate the tenancy,

summary eviction proceedings are then commenced.”); Ypsilanti Hous.

Comm'n v. O'Day, 240 Mich. App. 621, 628, 618 N.W.2d 18, 22 (2000)

(“Because defendant did not receive one month's notice of the termination

of her lease as required by subsection 34(1), the summary proceedings in

the district court were premature, and thus defendant's resultant eviction

was improper.”)

Minnesota

Follows rule, high

clarity

But note: MN does not

require pre-suit notice

in some non-payment

cases

See Hoglund-Hall v. Kleinschmidt, 381 N.W.2d 889, 895 (Minn. Ct. App.

1986) (reversing eviction judgment because “no written notice of

termination was given the Kleinschmidts prior to service of the unlawful

detainer summons and complaint,” as was required by lease in federal rural

housing program); but see also Minneapolis Cmty. Dev. Agency v.

Smallwood, 379 N.W.2d 554, 556 (Minn. Ct. App. 1985) (“landlord's right of

action for unlawful detainer is complete upon a tenant's violation of a lease

condition”); see also, c.f., Minn. Stat. § 504B.147(b) (“If a tenant neglects or

refuses to pay rent due on a tenancy at will, the landlord may terminate the

tenancy by giving the tenant 14 days notice to quit in writing.”).

Mississippi

Follows rule, low clarity

Glenn v. Caldwell, 74 Miss. 49, 20 So. 152, 153 (1896) (unlawful detainer

cause of action accrues against occupant “after the expiration of his right”)

Missouri

McIlvain v. Kavorinos, 236 S.W.2d 322, 327 (Mo. 1951) (“there could be no

unlawful detainer until after the notice [to vacate] was given and the time

provided therein had expired.”); Gordon v. Williams, 986 S.W.2d 470, 473

Created June 21, 2022

Updated: February 7, 2023

Follows rule, high

clarity

(Mo. App. 1998) (“There can be no unlawful detainer action until the lease

has been terminated”), citing Davidson v. Kenney, 971 S.W.2d 896, 899

(Mo. App. 1998).

But see KC Tenants v. Byrn, 504 F. Supp. 3d 1026, 1029 (W.D. Mo. 2020)

(CDC eviction halt order which prohibited “any action by a landlord ... with

a legal right to pursue eviction or a possessory action, to remove, or cause

the removal of a covered person” did not prohibit “activity preceding an

eviction, including lawsuits”), vacated, No. 4:20-CV-00784-HFS, 2022 WL

3656453 (W.D. Mo. Aug. 24, 2022).

Montana

Follows rule, low clarity

but MT law based on

California law

Boucher v. St. George, 88 Mont. 162, 293 P. 315, 318 (1930)

Nebraska

Follows rule, moderate

clarity

Connell v. Chambers, 22 Neb. 302, 34 N.W. 636, 640 (1887) (“In order to

give any effect to the statute requiring notice to be given before the

commencement of summary proceedings against a tenant holding over

after the termination of his lease, we must hold that such notice must,

either in direct terms or by clear and unmistakable implication, point out a

day upon which the tenant is required to quit, which day must be at or after

the termination of the lease.”); I.P. Homeowners, Inc. v. Morrow, 12 Neb.

App. 119, 127–28, 668 N.W.2d 515, 522 (2003) (“The statutory notice is not

for the purpose of terminating the tenancy but is a necessary preliminary to

bringing the action and is jurisdictional.”), quoting 2 Edward Cole Fisher,

Practice and Procedure in Courts of Limited Jurisdiction in Nebraska § 398

at 736 (1950)

Nevada

Follows rule, moderate

clarity

Roberts v. Second Jud. Dist. Ct. in & for Washoe Cnty., Dep't 2, 43 Nev. 332,

185 P. 1067, 1069 (1920) (“Before a landlord can resort to the summary

remedy of an action for unlawful detainer under subdivision 2, he must

terminate the tenancy by serving a notice to quit possession as required

therein. The notice to quit, being a part of the statutory definition of the

offense, necessarily enters into the gist of the action, and must be made to

appear by express averment in the complaint.”).

New Hampshire

Follows rule, low clarity

Liam Hooksett, LLC v. Boynton, 157 N.H. 625, 629, 956 A.2d 304, 307 (2008)

(“After the landlord provides the tenant with proper notice, see RSA 504:2–

:5,:12, the landlord may commence a possessory action based upon

nonpayment of rent by filing a writ in district court. See RSA 540:13”); see

also Buber & Brideau v. Blais, 79 N.H. 516, 112 A. 396, 396 (1920) (“It is

suggested that this action cannot be maintained because no entry on the

demanded premises has been shown, but it is conceded that the plaintiffs

gave the defendant a notice to quit on a definite day, which was more than

seven days after the day the notice was served on him, and P. S. c. 246, § 4,

Created June 21, 2022

Updated: February 7, 2023

as amended by Laws 1905, c. 57, provides that such a notice is equivalent

to entry for condition broken.”)

New Jersey

Follows rule, high

clarity

Hous. Auth. of City of Newark v. Caldwell, 247 N.J. Super. 595, 598, 589 A.2d

1088, 1089 (Law. Div. 1991) (“All of the subsections in N.J.S.A. 2A:18–61.2,

imposing time periods for a Notice to Quit, actually refer not to the time

periods of the Notice to Quit, but rather to the time periods “prior to the

institution of the action.” The significance is that filing a complaint before

the expiration of the required period means that the cause of action has

not yet accrued. The consequence is that the court has no jurisdiction to act

in a summary dispossess action.”

New Mexico

Follows rule, high

clarity

New Mexico Motor Corp. v. Bliss, 27 N.M. 304, 201 P. 105, 108 (1921)

New York

Follows rule but

determines ripeness by

time of service, not

time of filing. High

clarity

Langdoc v. Warden, 71 Misc. 3d 211, 215, 141 N.Y.S.3d 678, 681–82 (N.Y.

Sup. Ct. 2021) (“Here, service represents the critical moment in a holdover

action. Indeed, the law provides for the initiation of a holdover proceeding

via Order to Show Cause ‘on the day of the expiration of the lease’ (RPAPL

733)—which means that a holdover proceeding technically can be

commenced in anticipation of a tenant holding over. This lends support to

the proposition that service of the Petition rather than its filing is the key to

determine ripeness. After all, it is the service of the Petition, not its filing,

that places the tenant under legal compulsion to respond. Therefore, the

court holds that commencement occurs upon service for the purposes of

determining ripeness in the context of a notice to quit.”)

North Carolina

Follows rule but

determines ripeness by

time of service, not

time of filing. High

clarity.

Cherry v. Whitehurst, 216 N.C. 340, 4 S.E.2d 900, 901 (1939) (“The

defendant contends that the action should have been dismissed for the

reason that it appears it was commenced on December 31, 1938, before

the expiration of the term, and therefore before the cause of action

accrued[.] Plaintiff . . . contends that it was commenced on January 2,

1939, and that defendant's motion for dismissal was properly denied.

…

An action is commenced when the summons is issued against the

defendant, C.S. § 404, and a civil action is commenced by issuing a

summons, C.S. § 475. So the question presented is when was the summons

issued in this action, on December 31, 1938, or on January 2, 1939. If on the

former date the defendant's motion to dismiss should have been granted, if

on the latter date the motion should have been denied.”).

North Dakota

Follows rule, moderate

clarity

Gasic v. Bosworth, 2014 ND 85, ¶ 7, 845 N.W.2d 306, 308 (“An eviction to

recover possession of land may be maintained when a lessee holds over

after a lease termination or expiration of the lessee's term or fails to pay

rent for three days after the rent is due. N.D.C.C. § 47–32–01(4).”); see also

Created June 21, 2022

Updated: February 7, 2023

Nelson v. Johnson, 2010 ND 23, 778 N.W.2d 773

Ohio

Follows rule, moderate

clarity

Amick v. Sickles, 2008-Ohio-3913, ¶ 17, 177 Ohio App. 3d 337, 341, 894

N.E.2d 733, 736 (“Appellant also correctly points out that before any

complaint may be filed in forcible entry and detainer, R.C. 1923.04(A)

requires a three-day notice.”); Voyager Vill. Ltd. v. Williams, 3 Ohio App. 3d

288, 290, 444 N.E.2d 1337, 1340 (1982) (“In general, a park operator

desiring to file a complaint in forcible entry and detainer against a tenant of

residential premises must first serve both a notice of termination of

tenancy and notice under R.C. 1923.04(A) upon the tenant before he files

his complaint.”)

Oklahoma

Follows rule, high

clarity

Bonewitz v. Home Owners Loan Corp., 1942 OK 431, 191 Okla. 654, 132 P.2d

644, 644 (“Defendants contend that proof of service of notice to terminate

tenancy for nonpayment of rent and proof of service of the three day

notice to vacate before filing the action was not properly made. We agree

with this contention.”); see also Watson v. Vici Cmty. Dev. Corp., No. CIV-

20-1011-F, 2022 WL 910155, at *9 (W.D. Okla. Mar. 28, 2022) (“The CARES

Act requires certain landlords to give tenants at least 30 days’ notice to

vacate a covered dwelling before filing a petition for eviction. See, 15 U.S.C.

§ 9508(c).”).

Oregon

Follows rule, high

clarity

C.O. Homes, LLC v. Cleveland, 366 Or. 207, 219, 460 P.3d 494, 501 (2020)

(“A landlord may not file an action for the return of possession until after

the expiration of the time period provided in the notice terminating the

tenancy. ORS 105.115(2)(b).”).

Pennsylvania

Follows rule, low clarity

Mercer Cnty. Agric. Soc. v. Barnhardt, 313 Pa. Super. 206, 212–13, 459 A.2d

811, 815 (1983) (“[Al]though the notice to quit, delivered on November 8,

1978, was ineffective to terminate the tenancy on the stated date of

December 10, 1978, was effective to terminate the periodic tenancy on

December 30, 1978, which was the ‘earliest possible date after the date

stated.’ This ruling will not affect the verdict and judgment entered in the

instant matter, since the Agricultural Society did not file its action for a writ

of ejectment until March 3, 1980, and the court did not reach a verdict until

November 25, 1980. Therefore, there was no ejectment until well after

appellant's term had expired.”); see also Fulton Terrace Ltd. P'ship v. Riley, 4

Pa. D. & C.4th 149, 153 (Com. Pl. 1989)

Puerto Rico

Follows rule but does

not require pre-suit

notice in nonpayment

cases

32 L.P.R.A. § 2821(“The action of unlawful detainer (eviction) may be

initiated by [any] person or persons entitled to the enjoyment of such

property or by persons claiming under them.”); see also Mora Dev. Corp. v.

Hilda Gonzalez De Sandin, 118 D.P.R. 733 (P.R. 1987).

Created June 21, 2022

Updated: February 7, 2023

Rhode Island

Follows rule, moderate

clarity

Whitman v. Curtin, 72 R.I. 341, 344, 51 A.2d 185, 186 (1947) (“In those

instances where the service of a notice to quit the premises is prescribed it

is a necessary step antecedent to the right to pursue the legal remedy to

eject.”

South Carolina

Follows rule, moderate

clarity

Richland Drug Co. v. Moorman, 71 S.C. 236, 50 S.E. 792, 793–94 (1905)

(“The duty of the magistrate to issue his warrant of ejectment does not

arise *794 until after the expiration of five days from service of notice to

quit, and upon its appearing that the defendant, being a trespasser, refuses

or neglects to quit after such notice.”)

South Dakota

Follows rule, moderate

clarity

Meservy v. Stoner, 50 S.D. 147, 208 N.W. 781, 782 (1926) (“The statute

means that the three days' notice must be given before the summons can

be issued. This statute makes the service of the notice jurisdictional. In

special statutory proceedings of this class, substantial compliance with the

statute is a jurisdictional requirement.”)

Tennessee

Follows rule, high

clarity

Morrison v. Smith, 757 S.W.2d 678, 681 (Tenn. Ct. App. 1988)

Texas

Follows rule, high

clarity

Geters v. Baytown Hous. Auth., 430 S.W.3d 578, 584 (Tex. App. 2014)

(“BHA's combined notice to terminate and notice to vacate delivered to

Geters expressly allowed her 30 days to vacate the premises. Geters

received those notices on June 11, 2012, and therefore had until July 11,

2012 to vacate under their terms. BHA, however, filed its forcible detainer

action in justice court earlier, on June 28, 2012. This was a clear violation of

section 24.005(a).”)

Utah

Follows rule, moderate

clarity

Sovereen v. Meadows, 595 P.2d 852, 854 (Utah 1979) (“Until the tenancy is

terminated by proper notice to quit there is no unlawful detainer. The

notice to quit is necessary to give rise to the cause of action. Where a

landlord commences suit without first terminating the tenancy by giving

proper notice to quit, the tenant can certainly appear and show his tenancy

is lawful. When it appears that the tenancy has not been terminated by

proper notice, the court should dismiss the suit on the grounds that there is

no cause of action.”), citing Carstensen v. Hansen, 107 Utah 234, 152 P.2d

954 (1944).

Vermont

Follows rule, low clarity

Case law unclear but multiple decisions hold that proper notice is required

before tenant may be evicted. See Houle v. Quenneville, 173 Vt. 80,, 787

A.2d 1258 (2001); see Vermont Small Bus. Dev. Corp. v. Fifth Son Corp.,

2013 VT 7, 193 Vt. 185, 67 A.3d 241 (2013).

Virgin Islands (US)

Oliver v. Bonelli, No. ST-08-CV-497, 2009 WL 10742398, at *3 (V.I. Super. Ct.

Jan. 21, 2009) (“Under V.I. Code Ann. tit. 28, § 843 (1996), the written

notice to quit “must have been served upon the tenant or person in

Created June 21, 2022

Updated: February 7, 2023

Follows rule, moderate

clarity

possession for a period of [thirty] 30 days before the commencement of

such action” to regain possession of the property.”)

Virginia

Follows rule, low clarity

Compliance with

unlawful detainer

procedures is not

jurisdictional, but

failure to give required

lease termination

notice will preclude

entry of judgment for

landlord

Johnson v. Goldberg, 207 Va. 487, 490, 151 S.E.2d 368, 370 (1966) (“It is

settled in Virginia that if the defendant holds the land not adversely, but

under the plaintiff, a notice to quit, or a demand of possession, must be

shown before an action of unlawful detainer can be maintained.”); Parrish

v. Fannie Mae, 292 Va. 44, 50, 787 S.E.2d 116, 121 (2016) (Unlawful

detainer is an action against a defendant who lawfully entered into

possession of real property but whose right to lawful possession has since

expired. It is brought by a plaintiff lawfully entitled to possession at the

time of suit, which the defendant is then unlawfully withholding.”), citing

Allen v. Gibson, 25 Va. 468, 473 (1826); but see also In Re Bonner __ WL ___

(2023) (“Contrary to the petitioners’ contention, we discern no limitation

on that jurisdiction in the interplay of statutes found in other Titles of the

Code that prescribe how and when a landlord may initiate an unlawful

detainer action . . . The petitioners also misread Parrish v. Fed. and Johnson

v. Goldberg as holding that adequate notice of a lessor’s intent to terminate

a lease for non-payment of rent or the lessor’s right to possess the subject

premises are prerequisites to a court’s subject matter jurisdiction over an

unlawful detainer action[.]”) (underline added, internal citations omitted).

Washington

Follows rule, high

clarity

Sherwood Auburn LLC v. Pinzón, 521 P.3d 212, 217 (2022); see Wooding v.

Sawyer, 38 Wn.2d 381, 387; 229 P.2d 535, 539 (1951) (“Until the notice has

been served and has remained uncompiled-with for a period of three days

after its service, the tenant, though in arrears in his rent, is rightfully in

possession, but thereafter he is guilty of unlawful detainer.”); Christensen v.

Ellsworth, 162 Wn.2d 365, 371; 173 P.3d 228, 231 (2007) (“a tenant is guilty

of unlawful detainer four days after the notice is properly posted and

mailed. Once a tenant is guilty of unlawful detainer under RCW

59.12.030(3), a landlord may commence an unlawful detainer action...”);

IBF, LLC v. Heuft, 141 Wash. App. 624, 633, 174 P.3d 95, 100 (2007) (“when

IBF served Heuft with a summons and complaint for unlawful detainer on

March 31, 2006, which was only nine calendar days after Heuft received

notice, it did not comply with the notice period to which Heuft was entitled.

Although IBF did not file its complaint with the court until 20 calendar days

after giving Heuft notice, it misled her by serving the summons before the

10-day notice period expired.”) (italics in original).

West Virginia

Follows rule, moderate

clarity

Lewis v. Welch Wholesale Flour & Feed Co., 90 W. Va. 471, 111 S.E. 158, 160

(1922) (“After notice to the tenant at will, of the execution of the lease,

expiration of the reasonable time allowed by it, and demand for vacation,

the plaintiff was entitled also to invoke the remedy[.]”)

Wisconsin

Hotel Hay Corp. v. Milner Hotels, 255 Wis. 482, 487, 39 N.W.2d 363, 366

(1949)

Created June 21, 2022

Updated: February 7, 2023

Follows rule, high

clarity

Wyoming

Follows rule, moderate

clarity

Knight v. Boner, 459 P.2d 205, 207 (Wyo. 1969) (“upon her failure to vacate

after proper notice terminating the tenancy, the plaintiff was well within his

rights in bringing an action for unlawful detainer”)