VIRGINIA EVICTIONS AND THE COVID-19 PANDEMIC – TEN STEP EVICTIONS GUIDE FOR LANDLORDS AND TENANTS

 **Note per the Virginia Supreme Court’s Order dated August 7, 2020, all rent-related evictions are stayed until September 7, 2020. Landlords may still pursue non-rent related evictions** [see related post: Coronavirus and Lease Terminations – Top Legal Queries]

See also this Visual Representation of the Virginia Eviction’s Process.

Fox and Moghul has received several queries on this issue. Landlord’s often call asking, “How Can I evict my tenant in Virginia during the pandemic?” Accordingly, this article is meant to serve as a guide for both Virginia landlords and tenants with respect to evictions during the pandemic.

There is a very specific process that landlords must follow to evict tenants who have breached their leasing contracts in Virginia. As a landlord, you must follow these steps very carefully to not only protect your property rights, but the legal rights of the tenant as well. Furthermore, both state and federal governments have enacted a new set of legislation related to the pandemic that modify and/or alter the present evictions landscape in Virginia (Virginia landlord-tenant act 2021). Please read the steps outlined in this article carefully.

Whether a tenant fails to pay rent or breaches your contract through other means (such as damaging your property), you need to provide notice prior to evicting. This notice is different depending on the type of breach to occur. You then have the ability to take the eviction to trial if the tenant refuses to leave, and recover any costs you have sustained during the eviction process. This process starts by filing an unlawful detainer and attending an administrative hearing to state your case.

Below is more information to keep in mind regarding the eviction process in Virginia – from the specific laws in play to the process for going to trial. 

1. The Common Law and The Virginia Residential Landlord and Tenant Act 

Unlike other states, Virginia has two entirely different sets of laws that govern landlord-tenant relationships:

• Virginia Common Law, Virginia Code § 55-225 et seq. (Repealed effective October 1, 2019)
• The Virginia Residential Landlord and Tenant Act (“VRLTA”), Virginia Code § 55.1-1200 et seq.

The general rule in this regard is that the VRLTA applies to the “occupancy in all single-family and multifamily residential dwelling units and multifamily dwelling unit(s),” unless certain exemptions detailed under the law are met.

The legal regime that the parties adopt to govern their landlord-tenant relationship can have significant consequences related to the eviction process. This analysis also does not apply to commercial landlord-tenant relationships, as those relationships are entirely a product of the lease negotiated between the landlord and the commercial tenant. Moreover, the information provided herein is subject to change depending on the specific provisions in any residential lease.

2. Grounds for Evicting A Tenant

Regardless of which statutory regime governs your landlord-tenant relationship, there are two broad categories that generally provide a legal basis to evict a tenant.

• Nonpayment of rent. This is one of the most common grounds for eviction and occurs when the tenant materially breaches the contract by failing to pay rent. The landlord can initiate eviction by issuing a five-day pay or quit notice. Note that this ground for eviction is typically subject to the tenant’s right of redemption, which means that the tenant may stop the eviction by paying the landlord full past due amount, including any court costs and attorney’s fees, on or before the first unlawful detainer return date. This right of redemption can only be exercised once in any given calendar year.
• Non-rent related breach of the lease. These breaches concern scenarios where the tenant has breached the lease for some non-rent related reason like keeping a pet on the premises in violation of the lease or playing loud music every night that causes a nuisance. These breaches can be classified into two general categories: (a) remedial or curable breaches and (b) nonremedial breaches. The former concerns circumstances where the tenant’s breach of the lease is of a type that can be remedied, such as keeping a pet on the premises that can be removed. Under the VRLTA, such a breach requires the landlord to issue a 21/30-day notice to cure to the tenant. This notice specifies the act or omission constituting the breach and provides 21 days for the tenant to cure such breach, failing which the lease will terminate in 30 days if the breach is not cured. The latter concerns cases where the breach of the lease cannot be remedied, such as if the tenant has intentionally damaged the premises or is consuming illegal drugs or narcotics on the premises. The landlord can then terminate the lease by giving a 30-day notice of termination under VRLTA.

The double damages statute for intentional acts of destruction by the tenant. Virginia Code § 55-214 (now § 8.01-178.2) allows a landlord to recover double damages in cases where the tenant has engaged in “wanton” acts of waste on the premises. Oftentimes, this is a useful tool for landlord’s whose property has been maliciously and intentionally destroyed by the tenant.

3. Filing the Unlawful Detainer

Evictions Process In Virginia

Once the required formalities related to notice to the tenants are satisfied, the next step in the eviction process is to file an unlawful detainer (“UD”). The clerk of the court will note a “return date” on the UD, which is the initial date when the parties must attend in court with respect to the eviction. Note that the return date is not the trial date. It is simply an administrative proceeding where the court determines if there is any dispute, and if so, when to set the matter for trial and whether the parties wish to file any pleadings. Most return dates are typically scheduled within three to four weeks from the date of filing.[1]

4. THE IMPACT OF COVID-19 OR THE CORONAVIRUS PANDEMIC ON VIRGINIA EVICTIONS.

As COVID-19 (hereinafter referred to as the “Pandemic”) began to spread in Virginia, the Virginia General Assembly conveyed, and enacted legislation designed to assist those affected by the 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.

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 below and the rental property is not a covered property nor is the tenant a furloughed employee/contractor.

5. PANDEMIC RELATED ISSUES BEFORE FILING THE UNLAWFUL DETAINER.

The following considerations must be addressed BEFORE filing the UD:

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. Again, the protections under the CARES At terminated on July 25, 2020, but Courts are still requiring the Pandemic Affidavit to be filed with the Court.

6. The Pleadings – Bill Of Particulars And Grounds Of Defense 

If the eviction is a contested matter, then the court will set a trial date. If either party wishes for the other side to state the factual and legal basis for their eviction and/or any defenses thereto, then either side may move for pleadings. The judge will order the landlord to file a document known as a bill of particulars, and the tenant will respond by filing a grounds of defense, which details the tenant’s legal defenses related to the eviction.

7. Trial Date

If the matter is set for trial, then the parties will have to appear in court to litigate the case on the scheduled trial date. If the landlord prevails, then the landlord may or may not be able to recover his attorney’s fees depending on the terms of the lease.

8. 10-Day Statutory Appeal Period Under Virginia Code § 8.01-129

If the court gives a judgment in favor of the landlord, then the judge will set the appeal bond amount. The tenant then has a 10-day statutory appeal time frame within which to file for appeal to the circuit court and post the required bond amount. If the tenant appeals, then he gets a proverbial second bite at the appeal by having another trial in circuit court de novo.

9. Writ Of Eviction

If the tenant does not appeal the judgment, then the landlord may file the writ of eviction (Form DC-469) with the court. The clerk will process the writ and forward it to the sheriff’s department, which will then execute the writ by posting a 72-hour notice to vacate on the property. This can typically take between one and four weeks.

10. Do Not Engage In Self-Help

Self-help in Virginia is only available in the commercial context. It is imperative that a residential landlord not engage in any self-help prior to move out or lock out date scheduled by the sheriff.

Virginia Code 55-225.1 states: “A landlord may not recover or take possession of a residential dwelling unit by (i) willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required to be supplied by the landlord under a rental agreement or (ii) refusal to permit the tenant access to such unit unless such refusal is pursuant to an unlawful detainer action from a court of competent jurisdiction and the execution of a writ of possession issued pursuant thereto.”

If a landlord violates this provision, then he may be liable for damages to the tenant. This is why you should always be hyper-aware of your rights, the rights of the tenant and the correct legal process for eviction in the state of Virginia.

Please contact Fox and Moghul for more information on this issue.

[1] Due to the backlog caused by the Pandemic, the timing of the return date is variable.