COVID-19 & Virginia Renters
Certain Virginia renters can ask for a 60-day eviction stay under Section 44-209, in place until September 29, 2021. Renters can also ask for assistance through the Virginia Rent Relief Program (RRP). Landlords with four or more dwelling units must offer renters behind on their rent a payment plan option.
CDC Eviction Moratorium in the Courts
On August 26, 2021, the U.S. Supreme Court blocked the CDC's extension of its eviction moratorium, which would have been in place through October 3rd. See this article from NPR for more.
On August 13, 2021, a federal judge rejected a challenge to the CDC's new eviction moratorium that is effective through October 3rd. See this article from WTOP for more.
On June 29, 2021, the U.S. Supreme Court denied the request to block the eviction moratorium, meaning it will remain in place until July 31st. See this article from CNN for more.
On June 2, 2021, a three-judge panel from the U.S. Court of Appeals for the D.C. Circuit allowed the eviction moratorium to remain in place while the case is being decided by the courts. On June 3, 2021, the parties who brought the lawsuit against the CDC asked the U.S. Supreme Court to make a decision on the matter. See this article from USA Today for more.
On May 14, 2021, the federal district court judge agreed to stay her ruling regarding the CDC's moratorium on evictions while the Department of Justice is appealing the decision. See this article from The Hill for more.
On May 5, 2021, a federal district court judge in Washington, DC struck down the CDC's moratorium on evictions, which is currently scheduled to end June 30th. The Department of Justice has appealed the decision, and there is a temporary stay of the ruling until at least May 16th. See this article from CNN for more.
CARES Act Section 4023: Renters in Federally-Backed Multifamily Properties
Sections 4023(d) and (e) (15 U.S.C. 9057(d)-(e)) of the Coronavirus Aid, Relief, and Economic Security, or CARES, Act created certain protections for renters in properties with federally-backed multifamily mortgage loans against evictions. A multifamily property is defined as a property having 5 or more dwelling units.
Under section 4023(d), the borrower (i.e. the landlord) of a mortgage on a multifamily property who receives a forbearance under the CARES Act may not, for the period of forbearance:
- Evict, or start the eviction process, of a tenant solely due to failure to pay rent or other fees or charges, or
- Charge any late fees, penalties, or other charges for late payment of rent.
Under section 4023(e), the borrower must give at least 30 days in a notice to vacate to a tenant before the tenant is required to vacate the dwelling unit, and can't issue that notice to vacate until after the expiration of the forbearance.
As of August 6, 2020, the Federal Housing Finance Agency (FHFA) requires borrowers with mortgages backed by Fannie Mae or Freddie Mac who enter into new or modified forbearance periods to inform tenants in writing about the protections available to tenants. In addition, borrowers must allow tenants flexibility to repay back rent over time and not in a lump sum.
On June 3, 2021, the FHFA announced that it was extending COVID-19 forbearance to qualifying multifamily property owners through September 30, 2021, along with the associated protections for tenants.
On June 24, 2021, the USDA announced that the eviction moratorium for multifamily housing communities supported by the USDA would be extended through July 31, 2021.
Use the National Low Income Housing Coalition's look-up tool here to see if the multifamily property you are renting in is subject to the CARES Act.
CARES Act Section 4024: Renters in Any Covered Rental Property
NOTE: The temporary eviction moratorium under section 4024 expired July 24, 2020. See sections below for other protections available.
Section 4024 (15 U.S.C. 9058) of the Coronavirus Aid, Relief, and Economic Security, or CARES, Act created a temporary moratorium on eviction filings regarding renters in covered rental properties.
Covered properties includes any property that:
- Participates in a federal housing program (most are covered, the complete list can be found at 34 U.S.C. 12491(a)(3)),
- Participates in a rural housing voucher program,
- Has a federally backed mortgage loan, or
- Has a federally backed multifamily mortgage loan.
Under section 4024(b), during the 120-day period beginning on March 27, 2020, the landlord cannot:
- Make any filing with a court to begin a legal action to recover possession of the dwelling unit due to the tenant's nonpayment of rent or other fees or charges, or
- Charge fees, penalties, or other charges to the tenant related to the nonpayment of rent.
Under section 4024(c), the landlord must give at least 30 days in a notice to vacate to a tenant before the tenant is required to vacate the dwelling unit, and can't issue that notice to vacate until the eviction filing moratorium period is over.
Federal Eviction Moratorium Periods
NOTE: The CDC eviction moratorium has been struck down as of August 26, 2021.
On August 27, 2020, HUD announced that evictions of tenants from properties secured by FHA-insured Single Family mortgages were suspended until December 31, 2020.
In addition, on August 27, 2020, the Federal Housing Finance Agency (FHFA) announced that it was extending the eviction moratorium for renters in foreclosed homes which were acquired by Fannie Mae and Freddie Mac until at least December 31, 2020. On December 2, 2020, the FHFA extended the moratorium to at least January 31, 2020.
The original temporary moratorium on eviction filings created by section 4024 of the CARES Act expired on July 24, 2020 (the end of the 120 day period beginning on March 27, 2020).
CDC Temporary Eviction Moratorium
What is the order and when does it expire?
On September 4, 2020, the Centers for Disease Control and Prevention (CDC) ordered a moratorium on residential evictions through December 31, 2020. Renters who meet certain conditions and provide a sworn declaration are covered by the moratorium.
On December 27, 2020, President Trump signed the Consolidated Appropriations Act, 2021 (also known as the COVID relief act in news media) into law. This Act extended the CDC Order's temporary halt in residential evictions until January 31, 2021.
On March 28, 2021, the CDC ordered that its moratorium be extended until June 30, 2021.
On June 24, 2021, the CDC ordered that its moratorium be extended until July 31, 2021. The CDC intended this to be the final extension of the moratorium.
On August 3, 2021, due to the spread of the Delta variant, the CDC ordered that its moratorium be extended until October 3, 2021 for renters in counties with a "substantial" or "high" level of community transmission. As of August 12th, almost every county in Virginia has a substantial or high level of community transmission, according to CDC data. NOTE: The CDC eviction moratorium has been struck down as of August 26, 2021.
What do I need to do as a renter?
The Order halts residential evictions for nonpayment of rent. Unlike the first moratorium created by the CARES Act, the Order does not prevent landlords from charging fees, penalties or interest on non-paid or late rent, nor does it prevent landlords from starting the eviction process in court.
Renters need to meet the following requirements to be able to take advantage of the CDC's eviction moratorium under the March 28, 2021 order:
- The renter has used best efforts to obtain all available government assistance for rent or housing;
- The renter either (i) earned no more than $99,000 (or $198,000 if filing jointly) in 2020, or expects to earn no more than $99,000 (or $198,000 if filing jointly) in annual income for 2021, (ii) was not required to report any income in 2020 to the IRS, or (iii) received an Economic Impact Payment (stimulus check);
- The renter 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;
- The renter is using best efforts to make timely partial payments that are as close to the full payment as the renter's circumstances may permit, taking into account other nondiscretionary expenses; and
- Eviction would likely render them homeless — or force them to move into and live in close quarters in a new congregate or shared living setting — because they have no other available housing options.
The renter must also provide a signed declaration to their landlord that they meet the above requirements - the eviction moratorium is not automatic. The CDC has a sample form for use here.
A landlord who violates the CDC's Order may be subject to criminal penalties.
For Virginia renters: The CDC Order does not apply if there are already stronger state or local protections in place. There may be stronger protections in place for you; see more information below on Virginia eviction moratoriums and memos from the Executive Secretary to Virginia judges.
Virginia Eviction Moratoriums
According to a November 18, 2020 news release, the Virginia budget prohibits evictions for non-payment of rent through December 31, 2020, which is stronger than current federal protections. Landlords and tenants must cooperate and apply for rental assistance through the Virginia Rent and Mortgage Relief Program (RMRP) administered by the Department of Housing and Community Development. After January 1, 2021, the budget requires landlords and tenants to work together to access rent assistance, including through the RMRP, before proceeding with an eviction. See also the 60-Day Eviction Stay Under Va. Code § 44-209 section below.
Some localities may offer extra protections for renters. For example, in the County of Arlington, if you rent in one of the properties which is under a Limited Waiver Agreement with the County, the owner or management company may not charge late fees or evict tenants for non-payment of rent due to COVID-19 related loss of income through December 31, 2020.
(The eviction moratorium put in place by the Virginia Supreme Court expired on September 7, 2020.)
60-Day Eviction Stay Under Va. Code § 44-209
The Virginia legislature has also provided homeowners with some foreclosure protections by extending to them the protections of Virginia Code § 44-209, which was created to give certain relief to government employees and contractors during federal government shutdowns. House Bill 340 (Chapter 1202) states that the protections under the statute relating to evictions for nonpayment of rent may be available to tenants affected by affected by COVID-19 during the period for which the Governor has declared a state of emergency.
Virginia Code § 44-209(B) provides that a tenant who is a defendant in an unlawful detainer action in court (how evictions begin in Virginia) for failing to pay rent will be granted a 60-day continuance from the first court date, if the tenant appears on that court date and provides proof that the tenant has been affected by COVID-19.
"Affected by" is defined as a loss of income due to the COVID-19 emergency - the tenant must provide written proof that they are not currently receiving wages or payments from any public or private source. Written proof is (i) a paystub showing zero dollars in earnings for a pay period within the period for which the Governor has declared the COVID-19 state of emergency, (ii) a copy of a furlough notification letter or essential employee status letter indicating the employee's status as nonessential due to the emergency, or (iii) any other documentation deemed appropriate by the court.
This stay period is also tolled during the period of declared judicial emergency. See the Supreme Court of Virginia Orders of Judicial Emergency here.
These protections expire 90 days following the end of the state of emergency declared by the Governor. The Governor let the state of emergency expire as of midnight, June 30, 2021. July 1, 2021 plus 90 days is September 29, 2021.
NEW FOR JULY 1ST, 2021: Protections for Tenants Applying for New Housing who Have a History of Nonpayment of Rent During COVID-19 State of Emergency
Effective July 1, 2021, renters are getting additional protections when applying for new housing if they missed payments or had an eviction during the COVID-19 state of emergency.
A new section in the Virginia Code, Virginia Code § 55.1-1245(I), states that a landlord that can't take an "adverse action" against a rental application based solely on that applicant's payment history or an eviction for nonpayment of rent that happened during the state of emergency declared for COVID-19.
This state of emergency is defined as beginning on March 12, 2020, and ending 30 days after the COVID-19 state of emergency declared by the Governor has expired or been revoked.
If the landlord denies a rental application, the landlord has to provide written notice of the denial and the right for the applicant to assert that a failure to qualify based on payment history or eviction for nonpayment of rent occurred during the COVID-19 state of emergency.
This written notice needs to include the phone number and website of the statewide legal aid agency, and also needs to inform the applicant that they have seven days from the postmarked date of the notice to challenge the application denial.
However, if the landlord provides the notice by email or telephone (presumably meaning a fax if it needs to be a written notice, but the statute doesn't say that specifically), then the applicant only has until the close of business on the next business day to challenge the landlord's decision!
If the applicant does challenge the denial, and the landlord relied on consumer or tenant screening report to make the denial, then the landlord must make a good faith effort to contact the company that made the report and ask them if their recommendation was based only on payment history or an eviction for nonpayment of rent during the COVID-19 state of emergency period.
If the landlord violates these provisions, the applicant can sue the landlord for $1,000 and ask for reimbursement of attorney's fees.
Applicants are only eligible for these protections if the landlord owns more than four rental dwelling units, or has at least a 10% ownership interest in more than four rental dwelling units, in Virginia.
Virginia Code § 55.1-1245(I) will sunset on the later of July 1, 2028, or seven years after the COVID-19 pandemic state of emergency expires.
Virginia Rent and Mortgage Relief Program (RMRP) & Rent Relief Program (RRP)
On February 16, 2021, Governor Northam announced $524 million in new funding for the Virginia Rent Relief Program, or RRP. (This program is replacing the Virginia Rent and Mortgage Relief Program (RMRP), as no new funding is being provided for mortgage payments through this program.)
New Notice & Payment Plan Requirements
Under the new provisions, for a landlord who owns four or fewer rental units, if rent is unpaid when due, the landlord must provide a 14-day notice before starting the eviction process, compared to the standard 5-day notice.
For a landlord who owns four or more dwelling units, if rent is unpaid when due, the landlord must serve the tenant with a written notice of the total amount due and owed. The notice must also:
- Offer the tenant a payment plan under which the tenant shall be required to pay the total amount due and owed in equal monthly installments over a period of the lesser of six months or the time remaining under the rental agreement. The total amount due and owed under a payment plan shall not include any late fees, and no late fees shall be assessed during any time period in which a tenant is making timely payments under a payment plan.
- Inform the tenant that if the tenant fails to either pay the total amount due and owed or enter into the payment plan offered, or an alternative payment arrangement acceptable to the landlord, within 14 days of receiving the written notice from the landlord, the landlord may terminate the rental agreement and proceed to obtain possession of the premises.
If the tenant fails to pay in full or enter into a payment plan with the landlord within 14 days of the notice being served, the landlord may terminate the rental agreement and proceed to evict the tenant.
If the tenant enters into a payment plan and after the plan becomes effective, fails to pay any installment required by the plan within 14 days of its new due date, the landlord may terminate the rental agreement and proceed to evict the tenant, provided that the landlord has sent the tenant a new notice advising the tenant that the rental agreement will terminate unless the tenant pays the total amount due and owed as stated on the notice within 14 days of receipt.
The option of entering into a payment plan or alternative payment arrangement pursuant to this subsection may only be utilized once during the time period of the rental agreement.
Nothing in this subsection shall preclude a tenant from availing themselves of any other rights or remedies available to them under the law, nor shall the tenant's eligibility to participate or participation in any rent relief program offered by a nonprofit organization or under the provisions of any federal, state, or local law, regulation, or action prohibit the tenant from taking advantage of the payment plan.
Utility Shutoff Protections
According to a November 18, 2020 news release, the Virginia budget puts in place a moratorium on utility disconnections, including water and electricity, which will remain in effect until the Governor determines that the economic and public health conditions have improved such that the prohibition does not need to be in place or until at least 60 days after the declared state of emergency ends. The budget includes protections for utility providers dealing with revenue shortfalls and establishes a repayment plan to give customers the opportunity to pay off back debt over a longer period.
Other Helpful Links
- April 21, 2021 memo from Karl R. Hade, Executive Secretary, to Judges and Clerks regarding the extended CDC Moratorium on Evictions.
- February 5, 2021 memo from Karl R. Hade, Executive Secretary, to Judges and Clerks regarding the extended CDC Moratorium on Evictions.
- December 30, 2020 memo from Karl R. Hade, Executive Secretary, to Judges and Clerks regarding the extended CDC Moratorium on Evictions.
- October 30, 2020 memo from Karl R. Hade, Executive Secretary, to Active and Retired Circuit and General District Court Judges regarding CDC Moratorium on Evictions.
- June 5, 2020 memo from Karl R. Hade, Executive Secretary of the Supreme Court of Virginia, to Active and Retired Circuit and General District Court Judges regarding unlawful detainers and writs of eviction.
- May 15, 2020 memo from Karl R. Hade, Executive Secretary, to Active and Retired Circuit and General District Court Judges regarding unlawful detainers and writs of eviction.
- Consumer Financial Protection Bureau’s Protections for Renters page
- Executive Order 13945 (August 8, 2020): Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners
- Stay Home Virginia's Resources for Renters page
- County of Arlington's COVID-19 Coronavirus FAQs for Renters and Landlords
- County of Arlington's Eviction Prevention page
- Housing Opportunities Made Equal of Virginia's Eviction Diversion page
- Princeton University's Eviction Lab
Are you a tenant, and your landlord is not following the law? Or are you a landlord worried about complying with the new COVID-19 laws? Contact us at 1-800-516-8060 to see how D'Lima Law can help you!
Published November 24, 2020. Last updated October 25, 2021.