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New Eviction Requirements In The Covid-19 Landscape

As COVID-19 began to spread in Virginia, the Virginia General Assembly conveyed, and enacted legislation designed to assist those affected by the Pandemic. This article is meant to provide an overview of the new requirements for Unlawful Detainer ("UD") proceedings during the COVID-19 Pandemic ("Pandemic").

The Pandemic caused closure of United States' government facilities thereby causing massive furloughs of government employees and contractors. In response, the Virginia Assembly enacted Va. Code § 44-209 (Closure of United States government; civil relief for furloughed employees and contractors), which provides a 60-day stay of UD proceedings for tenants who were (1) furloughed United States government employees/contractors or (2) were employees of a company under contract with the United States government who was furloughed or not receiving wages/payments due to closure of the United States government. Therefore, if a Landlord attempts to evict a tenant who was furloughed under the above circumstances, the Court will issue a 60-Day stay to the proceeding.

Further, the Coronavirus Aid, Relief, and Economic Security Act ("CARES Act") provided additional protections and relief for Tenants affected by the Pandemic. This includes a 120-day moratorium (ends on July 25, 2020) against charging penalties or late fees for failure to pay rent and a 30-day notice requirement to the tenant instructing them to vacate the property.

The following considerations must be addressed BEFORE filing the Unlawful Detainer:

1. Is the rental property a "covered property" as defined under CARES Act § 4024(a)(2)(A)?

a. Is the rental property subject to a federally backed mortgage loan or federally backed multifamily mortgage loan? (See CARES Act § 4042 (A)(2)(B))

i. Is the mortgage on the rental property owned by Freddie Mac or Fannie Mae?

ii. Is the mortgage of the rental property guaranteed, provided by, or insured by the U.S. Department of Housing and Urban Development?

iii. Is the mortgage on the rental property guaranteed, provided by, or insured by the U.S. Department of Veteran Affairs?

iv. Is the mortgage on the rental property guaranteed, provided by, or insured by the U.S. Department of Agriculture?

b. Does the rental property participate in federal assistance programs, which includes but is not limited to the following programs:

i. Violence Against Women housing (§ 41411(a) of the Violence Against Women Act)

ii. Housing Choice Vouchers

iii. Section 8 Project-Based Rental Assistance

iv. Rural housing programs

v. Low Income Housing Tax Credit (LIHTC) program

2. Is the tenant a furloughed employee/contractor as described under Va. Code § 44-209 (discussed above)?

If the rental property is a covered property then Landlords cannot initiate UD proceedings until the moratorium ends, subject to the 30-day notice requirement. If the tenant is a furloughed employee/contractor under Va. Code § 44-209, then a 60-day stay will be applied to the UD proceeding.

Courts are also requiring Landlord to file along with the UD (Form DC-421) and Service Members Civil Relief Act Affidavit (Form DC-418) a specific Pandemic Affidavit. Courts such as Fairfax County General District and Loudoun General District Court have a standard affidavit which can be obtained through the Clerk of the Court. Landlords will have to check with the court the rental property is located for that court's affidavit. The purpose of the affidavit is to affirm that the Landlord has read the relevant provisions cited above and the rental property is not a covered property nor is the tenant a furloughed employee/contractor.

It is important to note that the CARES Act's protections terminate on July 25, 2020. These protections may be modified or extended if Congress enacts further legislation. For more information, please contact Fox & Moghul at 703-652-5506

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