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Virginia Eviction Update Re: CDC Order dated Sept 4, 2020 Instituting An Eviction Moratorium Until December 31, 2020

This article contains important updates and clarifications to the recent CDC order.Please contact our office if you are a Virginia Landlord seeking to evict tenant(s) for non-payment of rent, or other breaches of the terms of the tenancy.

The CDC issued an order on Sept 4, 2020, instituting an eviction moratorium until December 31, 2020, for “covered person(s).”

COVERED PERSON:

A tenant is a “covered person” if they provide the Landlord with a Declaration stating 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, or 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.

All adult individuals named on the lease must submit this declaration to the Landlord/Court in order to be protected by the Order. The Declaration acts as an oath to the Court, therefore the individual can be subject to perjury charges if their Declaration is false.

Due to an onslaught of lawsuits against the CDC including one initiated by a Virginia landlord (see Richard Lee Brown v. U.S. Centers for Disease Control and Prevention, Case No.: 1:20-cv-03702-WMR), the CDC has issued clarifications to their Order.

The clarifications most relevant to our practice are the following:

What can a landlord do if a tenant has declared that they are a covered person under the CDC Order, but the landlord does not believe the tenant actually qualifies?

The Order does not preclude a landlord from challenging the truthfulness of a tenant’s declaration in any state or municipal court. The protections of the Order apply to the tenant until the court decides the issue as long as the Order remains in effect.

What if individuals act in bad faith when completing and submitting the declaration?

Anyone who falsely claims to be a covered person under this Order by attesting to any material information which they do not believe to be true may be subject to criminal penalties under 18 U.S.C. § 1621 (perjury) or other applicable criminal law.

What are the penalties for a landlord, owner of a residential property, or other person with a legal right to pursue an eviction or a possessory action violating this Order?

Several laws ( 18 U.S.C. §§ 3559 and 3571, 42 U.S.C. § 271, and 42 C.F.R. § 70.18) say that a person who violates the Order may be subject to a fine of no more than $100,000 or one year in jail, or both, if the violation does not result in death. A person violating the Order may be subject to a fine of no more than $250,000 or one year in jail, or both, if the violation results in a death or as otherwise provided by law. An organization violating the 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. These are criminal penalties and are determined by a court of law. CDC has no involvement in these penalties.

How does the federal government intend to enforce this Order?

The U.S. Department of Justice prosecutes violations of this Order.

Contact Fox and Moghul for further assistance.

Fox & Moghul - Real Estate

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