Attorney General Mark Herring Outlines Tenant Protections During COVID-19 Pandemic

“As the coronavirus continues to drastically impact communities across the Commonwealth, and as we continue to ask Virginians to stay home to prevent further spread, it is crucial for people to know what their options are,” said Attorney General Herring. “The pandemic has taken a very real toll on Virginia’s economy and tens of thousands of Virginians, many of whom are hourly workers, have found themselves without a source of income during these difficult times. We are still in the middle of a state of emergency and a public health crisis and it’s so important for Virginians to be able to stay in their homes to keep themselves, their families, and their communities safe.”

Federal CARES Act Protections

In his advisory opinion, Attorney General Herring explains that there are both federal and state protections in place for tenants during this time. First, he discusses the federal CARES Act “which contains multiple provisions to address the economic impact of COVID-19, including a temporary moratorium on eviction filings.” In this case, covered properties include “rental homes in certain properties subsidized or backed by the U.S. government”, which means properties that:

• participate in federal assistance programs;
• are subject to a federally backed mortgage loan;
• are subject to a multi-family federally backed mortgage loan.

Attorney General Herring also explains that the CARES Act says a landlord cannot evict a tenant for not paying rent during the moratorium period that’s outlined in the Act saying: “The CARES Act makes it unlawful for the landlord of a covered dwelling to file an action in court to evict a tenant for non-payment of rent or other fees or charges during the moratorium prescribed in the Act.” “That means the earliest an unlawful detainer may be filed against a tenant living in a dwelling covered by the CARES Act is August 26, 2020.”

Additionally, Attorney General Herring says that “because the CARES Act uses prohibitory language to make it unlawful for landlords to file unlawful detainers seeking possession of covered dwellings for nonpayment of rent before August 26, 2020, courts presented with these cases lack subject matter jurisdiction to adjudicate them.”

According to the RVA Eviction Lab, 1,055 eviction filings in Richmond, Henrico and Chesterfield courts fall under the protections put in place by the CARES Act, and 131 of those cases were filed after the moratorium went into effect on March 27, 2020.

State Protections

In April, the General Assembly passed HB340, which “extends a right to a continuance to tenants who are defendants in unlawful detainer proceedings for the nonpayment of rent who are ‘affected by’ the pandemic ‘during the period for which the Governor has declared a state of emergency.’” As Attorney General Herring explains in the opinion, this means that any Virginian sued for their rent payment during the State of Emergency who can provide written proof that they have lost their source of income because of the COVID-19 pandemic “tenants may receive…the protections of [a] 60-day continuance.”

Supreme Court of Virginia Actions

Attorney General Herring also highlights that “the Supreme Court of Virginia has the power to declare judicial emergencies during which unlawful detainer cases can be stayed, continued, or otherwise have deadlines and filing requirements modified.” The Supreme Court issued an initial judicial emergency on March 16, 2020, suspending all non-emergency evictions, and have since issued subsequent orders extending the emergency through August 9, 2020, but non-emergency evictions do not fall under the extended emergencies and “individual courts have considerable discretion to grant continuances.”

Legislative and Executive Actions

Attorney General Herring notes that “the General Assembly can pass legislation placing limitations on evictions…[and] It also possesses the power to pass legislation authorizing localities to place limitations on evictions.” Additionally, he notes that “the Governor has both statutory and executive authority to issue emergency orders.”