Many Virginians have experienced financial stress during the current health emergency. For renters, financial problems can quickly put them at risk of eviction for late rent, and for some landlords and property owners, loss of rental income can make it difficult to meet their own financial responsibilities.
Federal eviction moratorium
On Sept. 4, 2020, the U.S. Centers for Disease Control and Prevention (CDC) ordered a national halt of residential evictions for late rent through Dec. 31, 2020, to try to contain the spread of illness from moving, homelessness and congregate living. Congress extended the moratorium through Jan. 31, 2021, and President Biden has already extended it through March 31, 2021.
The federal order only applies in a state (or other federal or tribal jurisdiction) with no identical or more generous residential eviction moratorium. (The link goes to a CDC FAQ document that does not reflect the moratorium extension to March 31, 2021.) As of this writing in Jan. 2021, the CDC moratorium applies in Virginia because we currently have no state moratorium.
The CDC order allows landlords to begin eviction proceedings in state or local courts against renters late on rent, but landlords may not enforce resulting judgments for evictions. (Eviction proceedings that began before Sept. 4, but that have not yet been executed, are covered by the moratorium.) Any past-due rent will still be due after the moratorium ends.
The order only protects against eviction for nonpayment of rent and can still proceed for violation of other lease provisions or for illegal activity.
Tenants must take action
Moratorium protection has these requirements:
- Renters must try to obtain available rent assistance such as from the Virginia Rent and Mortgage Relief Program (RMRP, funded by the federal CARES Act to assist renters impacted by the public health crisis).
- Renters must have lost income or incurred expenses because of the health crisis.
- They must pay as much rent as possible on time.
- They must meet annual income limits.
- Renters must have major income or wage loss, decrease in hours or wages, job loss or extraordinarily high medical costs.
- An eviction would likely cause homelessness or congregate living.
The tenant must sign a sworn CDC declaration form (or an equivalent or translated version) that they meet all these requirements and give it to their landlord. If there are multiple people on a lease, each must execute a declaration, unless an exception applies for some who file taxes jointly. (Knowingly untrue allegations on the form may result in criminal liability.)
What about landlords?
Residential landlords have no legal duty to bring the CDC order to tenants’ attention. However, landlords must comply with the moratorium or risk potential jail time and fines. If they believe something in a tenant’s declaration of eligibility is false, the landlord may challenge it in court.
What happens in Virginia when the CDC order expires?
When the federal moratorium expires on March 31, 2021 (unless the date changes again), and short of another legal development, Virginia eviction law will apply. In late 2020, the legislature and governor enacted eviction relief for tenants late on rent because of the health care emergency. Most provisions end on June 30, 2021. They include:
- Renters who can prove in eviction proceedings that they are late on rent because of the health crisis may request a 60-day extension for time to pay late rent and prevent eviction. This provision expires 90 days after the Virginia state of emergency ends.
- The law caps late fees.
- Utility disconnection is often suspended.
- Landlords must give written notice of late rent, giving tenants 14 days to pay (up from five days) or to agree to a payment plan (certain smaller landlords do not need to offer a payment plan). The notice must contain specific disclosures and refer the tenant to government websites. The landlord must apply for RMRP for the tenant or assist them in doing so. If the tenant has not paid after 14 days, refused to cooperate in seeking RMRP, is found ineligible for rent assistance or defaulted on a payment plan, the landlord may seek a court order to evict.
Federal or Virginia state laws may change on short notice. It is important to stay up to date on legal developments impacting eviction for late rent during the public health emergency. Given the fast-changing laws, you should consult with an experienced attorney to make sure you are up to date on your rights as both a landlord and a tenant.