On September 1, 2020, the Centers for Disease Control and President Trump filed an order to temporarily halt residential evictions. Although we anticipate legal challenges to the order and the Governor has yet to comment on the order, this is what we know so far:
The order, which is effective starting on September 4, 2020 through December 31, 2020, states that “a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action [“landlord”] shall not evict any tenant, lessee, or resident of residential property [“tenant”] who provides the proper declaration from any residential property.” The language of the order appears to also prohibit the filing of unlawful detainers. Although this federal order is effective starting September 4, 2020, Virginia’s current eviction moratorium, which expires September 7, 2020, supersedes it. Therefore, landlords in Virginia would not have to follow the federal order until September 8, 2020.
For a tenant to be covered by this moratorium, every adult on the lease must provide the landlord a declaration under penalty of perjury indicating five things:
- The individual has used best efforts to obtain all available government assistance for rent or housing;
- The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
- The individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or any extraordinary unreimbursed medical expense likely to exceed 7.5% of one’s adjusted gross income for the year;
- The individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other nondiscretionary expenses; and
- Eviction would likely render the individual homeless— or force the individual to move into and live in close quarters in a new congregate or shared living setting— because the individual has no other available housing options (g. any available, unoccupied residential property, or other space for occupancy in any seasonal or temporary housing, that would not violate Federal, State, or local occupancy standards and that would not result in an overall increase of housing cost to such individual).
If a tenant provides this declaration, a landlord is prohibited from evicting or causing the eviction of that tenant for the nonpayment of rent. This includes a prohibition on filing unlawful detainers. The prohibition on eviction is limited to nonpayment of rent. The order specifically states that it does not apply to evictions based on a tenant (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent (including non-payment or late payment of fees, penalties, or interest).
If a violation does not result in a death, a person that violates this order may be subject to a fine of no more than $100,000 or one year in jail, or both. If a violation results in a death, a person who violates this order may be subject to a fine of no more than $250,000 or one year in jail, or both, or as otherwise provided by law. An organization violating this order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law.
We will continue to work with NAR and other stakeholders and update you as more details about this order emerge.