On September 1, 2020, the Centers for Disease Control and Prevention (“CDC”) issued an order imposing a temporary eviction moratorium, effective immediately after publication on September 4 through December 31, 2020 (the “Order”). Under the Order, landlords may not evict tenants if the reason is based on the tenant’s failure to timely pay rent. 

The Order may be challenged in court, and the Governor’s office has not yet commented on the Order, so its applicability in Virginia is uncertain at this time. The Order does not apply in any state or local area that has an existing moratorium on residential evictions that provides the same or greater level of public-health protection as the requirements in the Order. The Supreme Court of Virginia’s eviction moratorium remains in effect until September 7. Even assuming Virginia’s moratorium “provides the same or greater” protection as the Order, without action by the Supreme Court of Virginia or the General Assembly, the Order will likely apply to Virginia after September 7 unless further action is taken at the state level.

The Order’s reach is far greater than the eviction moratorium under the CARES Act. Previously, the federal eviction moratorium applied to landlords with federally backed mortgages on rental properties. The Order applies to “Covered Persons,” which includes “any tenant, lessee, or resident of a residential property who provides to their landlord, the owner of the residential property, or other person with a legal right to pursue eviction or a possessory action, a declaration under penalty of perjury indicating that:

1. The individual has used best efforts to obtain all available government assistance for rent or housing;
2. 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;
3. 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, extraordinary out-of-pocket medical expenses;
4. 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
5. 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” (the “Declaration”).

A copy of the Declaration can be found here. A tenant who executes the Declaration “or a similar declaration” under penalty of perjury and provides it to the landlord is protected from eviction due to failure to timely pay rent. [MT1] 

The Order does not relieve any individual of any obligation to pay rent (including late fees, penalties, or interest), which presumably must be paid at some point. The Order does not prohibit evictions based on: (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 or similar housing-related payment (including non-payment or late payment of fees, penalties or interest).

Many questions remain about the Order. As we continue to evaluate its scope and impact, we recommend that members use the Declaration and temporarily cease using NVAR Forms K1387 (Request Due to Economic Hardship – Lease) and K1388 (Notice Regarding Request Dur to Economic Hardship – Lease) until after the Order expires on December 31, 2020 or the order is rescinded. NVAR will provide updates as additional information becomes available.

You can review National Association of Realtors® President Vince Malta’s response to the Order here. For more information on NVAR’s efforts on behalf of you and your clients at the local and state level related to this issue, click here.

As always, contact the Legal Hotline if you have any additional questions or concerns.