What legal protections did Virginia tenants have against eviction during the COVID-19 pandemic in summer 2020?

Plain-English summary

In July 2020, twelve House Democrats asked AG Mark Herring what eviction protections were in place for Virginians during the COVID-19 pandemic. The AG's answer walked through three layers.

Layer 1: Federal CARES Act. Section 4024 of the CARES Act (Pub. L. 116-136) made it unlawful for a landlord of a "covered dwelling" to file an action to recover possession for nonpayment of rent during a 120-day moratorium running from March 27, 2020. "Covered dwelling" caught a broad set of federally subsidized or federally backed properties (HUD public housing and Section 8, USDA Rural Housing, LIHTC properties, Fannie Mae/Freddie Mac/FHA/VA-backed mortgages, plus federally backed multifamily). After the 120 days, a landlord still had to provide 30 days' notice to vacate before filing. The earliest a CARES-covered unlawful detainer could be filed in Virginia was August 26, 2020. The AG also concluded that the "may not make ... any filing" language was prohibitory enough to deprive Virginia general district courts of subject-matter jurisdiction over premature filings.

Layer 2: HB 340 (2020 Va. Acts ch. 1202). The General Assembly's emergency bill extended a mandatory 60-day continuance to any tenant defendant in an unlawful-detainer action for nonpayment of rent who was "affected by" the pandemic, meaning experiencing a loss of income tied to COVID. The tenant had to appear at the initial return date with written proof (a zero-dollar paystub, a furlough or essential-employee letter, or other documentation the court deems appropriate). Where the proof requirements are met, "shall grant a 60-day continuance" leaves the court no discretion. The 60-day continuance runs concurrently with overlapping state or federal protections in time, but does not preclude a tenant from claiming both protections sequentially, the CARES Act blocks filings, while HB 340 acts after filings exist. The protection extends 90 days past the end of the declared state of emergency.

Layer 3: Other branches. The Supreme Court of Virginia can declare a judicial emergency under § 17.1-330 and pause or modify unlawful-detainer deadlines. It did so on March 16, 2020, and extended the order through August 9, 2020. By the Sixth Order, the Court allowed courts to resume hearing unlawful detainers and issuing writs of eviction effective June 29, 2020. Individual courts retained "good cause" discretion to continue cases under Rule 7A:14. The General Assembly can pass further eviction legislation, and the Governor has both constitutional and statutory emergency powers to act in this space.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The CARES Act's eviction moratorium was Section 4024 of the Coronavirus Aid, Relief, and Economic Security Act of 2020. Section 4024(b) made it unlawful for the landlord of a covered dwelling to file an action to recover possession for nonpayment of rent for 120 days from enactment (March 27, 2020). Section 4024(c) added a separate 30-day notice-to-vacate requirement after the moratorium ended. Section 4023 added independent multifamily-mortgage forbearance protections that could extend protections beyond August 26 for tenants in certain federally backed multifamily properties.

The AG's jurisdictional-bar holding rests on the prohibitory language "may not make, or cause to be made, any filing." Under Virginia cases like Marrison v. Fairfax Cty. Dep't of Family Servs., 59 Va. App. 61 (2011) and Fredericksburg D.S.S. v. Brown, 33 Va. App. 313 (2000), "prohibitory or limiting language" in a statute is mandatory, and courts cannot exercise subject-matter jurisdiction until the plaintiff complies. The federal cases the AG cites (MSP Recovery, Perez, In re Foreclosure of Tax Liens) similarly read "may not" as jurisdictional.

HB 340, codified in part as § 44-209, was the state-law mechanism. The bill is described as extending coverage from federal-shutdown-affected tenants (the original § 44-209 audience) to all tenants affected by the COVID emergency. "Affected by" required experiencing a loss of income from a public or private source due to the emergency and proving the loss with one of three documentation paths.

For judicial-branch tools, § 17.1-330 authorizes the Supreme Court of Virginia to declare a judicial emergency lasting up to 21 days at a time, with possible extension for the duration of a communicable-disease threat. Section 16.1-93 and Supreme Court Rule 7A:14 separately preserve general district courts' discretion to grant continuances "for good cause shown," which can include pandemic conditions.

Common questions

Q: I rent and lost income to COVID. Can my landlord still evict me?
A: Under this 2020 opinion, two protections may help: (1) if your housing is "covered" under CARES Act § 4024, your landlord could not file a nonpayment unlawful detainer until at least August 26, 2020; and (2) under HB 340, if you appear at the return date and show you lost income due to COVID, the court must grant a 60-day continuance. The protections do not cancel rent owed, they delay the eviction proceeding.

Q: How do I know if my housing is "covered" under the CARES Act?
A: Coverage falls into three buckets: (1) properties participating in federal housing programs listed in the Violence Against Women Act and the Rural Housing Voucher Program; (2) single-family or 1-4 unit homes with federally backed mortgages (Fannie Mae, Freddie Mac, FHA, VA, USDA); and (3) multifamily properties (5+ units) with federally backed multifamily mortgage loans. Tenants can ask the landlord for the property's coverage status or check publicly available tools that map covered properties.

Q: What was the "written proof" requirement under HB 340?
A: Per the bill: (i) a paystub showing zero dollars in earnings for a pay period during the emergency, (ii) a furlough notice or essential-employee letter, or (iii) any other documentation the court deemed appropriate. The bar was deliberately easy to clear.

Q: I'm a landlord. Could I still evict for reasons other than nonpayment?
A: Yes. The CARES Act moratorium only covered nonpayment of rent, fees, or charges. Lease violations, criminal activity, and other non-financial grounds were not covered. State-law HB 340 protection also applied only to nonpayment unlawful detainers.

Q: Did this opinion freeze rent obligations?
A: No. Both CARES § 4024 and HB 340 were procedural, they delayed eviction proceedings, not the underlying duty to pay rent. Tenants owed back rent regardless, and landlords could still pursue judgments for unpaid rent through other procedural mechanisms.

Q: Can a court evict me anyway if I don't bring proof?
A: HB 340 required the tenant to appear and present written proof of COVID-related income loss. Without that, the mandatory continuance does not trigger. Individual courts retained "good cause" discretion under Rule 7A:14 to continue cases on other equitable grounds.

Citations and references

Federal:

• CARES Act, Pub. L. No. 116-136, §§ 4023, 4024 (Mar. 27, 2020)

Virginia statutes:

• Va. Code § 16.1-93 (General district court continuances)
• Va. Code § 17.1-330 (Judicial emergency)
• Va. Code § 44-146.14 (Emergency powers of Governor)
• Va. Code § 44-146.16 (Disaster definitions)
• Va. Code §§ 55.1-1200 to -1262 (VRLTA)

Cases:

• Marrison v. Fairfax Cty. Dep't of Family Servs., 59 Va. App. 61, 717 S.E.2d 146 (2011) (Virginia Court of Appeals; mandatory statutory language and subject-matter jurisdiction)
• Fredericksburg D.S.S. v. Brown, 33 Va. App. 313, 533 S.E.2d 12 (2000) (Virginia Court of Appeals)
• Moore v. Commonwealth, 259 Va. 405, 527 S.E.2d 415 (2000) (Virginia Supreme Court)
• Avery v. Virginia Retirement Sys., 33 Va. App. 210, 532 S.E.2d 348 (2000) (Virginia Court of Appeals)
• MSP Recovery Claims, Series LLC v. The Progressive Corp., 2019 WL 5448356 (N.D. Ohio Sept. 17, 2019) (federal district court)
• Perez v. General Packer, Inc., 790 F. Supp. 1464 (C.D. Cal. 1992) (federal district court)
• In re: Foreclosure of Tax Liens by City of Utica, 175 A.D.3d 1047, 107 N.Y.S.3d 798 (N.Y. App. Div. 2019) (New York appellate court)

Executive orders:

• Executive Order No. 51 (Northam) (Mar. 12, 2020), as amended May 26, 2020

Session laws:

• 2020 Va. Acts ch. 1202 (HB 340, eviction continuance for pandemic-affected tenants)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2020/20-033-Price-et-al.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

July 15, 2020

[Addressed to twelve members of the Virginia House of Delegates: Marcia S. "Cia" Price; Lashrecse Aird; Jeion A. Ward; Patrick A. Hope; Marcus B. Simon; Paul E. Krizek; Kelly K. Convirs-Fowler; Jeffrey M. Bourne; Kathy K.L. Tran; Alex Q. Askew; Chris L. Hurst; Lee J. Carter.]

Dear Delegates:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You have asked what legal mechanisms can bar evictions across Virginia during the COVID-19 pandemic.

Applicable Law and Discussion

A global pandemic presents not only a public health crisis, but also an economic one. Many Virginians, particularly those who are employed in the service sector or work in jobs that must be performed outside the home, are vulnerable to the economic volatility created by the coronavirus outbreak. They may struggle to maintain housing while meeting the needs of their families for food and medical care. Housing stability is critical to the wellbeing of individuals who are severely impacted by the pandemic. It is also crucial in a public health emergency in which containment of the virus depends in large measure on individuals remaining at home whenever possible and not being forced to seek shelter or experience homelessness.

I. Current COVID-related restrictions on evictions

1. Federal CARES Act

To address the profound impact of the COVID-19 pandemic, on March 27, 2020, the federal government enacted the Coronavirus Aid, Relief, and Economic Security Act (the "CARES Act"), which contains multiple provisions to address the economic impact of COVID-19, including a temporary moratorium on eviction filings.[1] This law governs eviction filings in Virginia, barring General District Courts from hearing certain unlawful detainer cases.

a) Coverage

The bar on evictions (described in "b" below) under the CARES Act applies, in short, to "covered dwellings," which are rental homes in certain properties subsidized or backed by the U.S. government. Specifically, CARES Act protections extend to dwellings in properties that: (1) participate in federal assistance programs, (2) are subject to a federally backed mortgage loan, or (3) are subject to a multi-family federally backed mortgage loan. First, the ban on evictions extends to dwellings in properties that participate in federal housing programs covered under the Violence Against Women Act.[2] These programs include the following:

1. Department of Housing and Urban Development (HUD)
   a. Public housing (42 U.S.C. § 1437d)
   b. Section 8 Housing Choice Voucher Program (42 U.S.C. § 1437f)
   c. Section 8 project-based housing (42 U.S.C. § 1437f)
   d. Section 202 housing for the elderly (12 U.S.C. § 1701q)
   e. Section 811 housing for people with disabilities (42 U.S.C. § 8013)
   f. Section 236 multifamily rental housing (12 U.S.C. § 1715z-1)
   g. Section 221(d)(3) Below Market Interest Rate (BMIR) housing (12 U.S.C. § 1715l(d))
   h. HOME Investment Partnerships Program (42 U.S.C. § 12741 et seq.)
   i. Housing Opportunities for Persons with AIDS (HOPWA) (42 U.S.C. § 12901, et seq.)
   j. McKinney-Vento Act homelessness programs (42 U.S.C. § 11360, et seq.)

2. Department of Agriculture
   a. Section 515 Rural Rental Housing (42 U.S.C. § 1485)
   b. Sections 514 and 516 Farm Labor Housing (42 U.S.C. §§ 1484, 1486)
   c. Section 533 Housing Preservation Grants (42 U.S.C. § 1490m)
   d. Section 538 multifamily rental housing (42 U.S.C. § 1490p-2)

3. Department of Treasury
   a. Low-Income Housing Tax Credit (LIHTC) (26 U.S.C. § 42)

The CARES Act also extends to dwellings in properties that participate in the Rural Housing Voucher Program under Section 542 of the Housing Act of 1949[3] even though this program was not included in the covered housing programs in the 2013 Violence Against Women Act reauthorization.[4]

Second, dwellings in properties that are subject to a federally backed mortgage loan, e.g., a single-family mortgage owned or securitized by Fannie Mae or Freddie Mac or insured, guaranteed or otherwise assisted by the federal government, including mortgages issued by the Federal Housing Administration and the Department of Veterans Affairs, and the Department of Agriculture's direct and
guaranteed loans, are covered by the CARES Act.[5]

The third category of CARES Act covered dwellings are those in properties with federally backed multifamily mortgage loans, i.e. federally backed mortgage loans on properties designed principally for the occupancy of 5 or more families.[6]

b) Eviction Protections

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[7] during the moratorium prescribed in the Act. The federal eviction moratorium does not suspend actions that were filed before the moratorium took effect, nor does it prohibit actions that are based on reasons other than nonpayment of rent or other fees or charges. I note also that the CARES Act does not tie "nonpayment of rent" to an economic hardship caused by COVID-19.

Section 4024(b) of the CARES Act states that a landlord may not "make or cause to be made, any filing [in court] to initiate a legal action to recover possession of [a] covered dwelling from the tenant for nonpayment of rent or other fees or charges" during "the 120-day period beginning on the date of enactment of this Act." Following expiration of the 120-day period, the landlord "may not require the tenant to vacate the covered dwelling unit" unless the landlord issues a notice to vacate and at least thirty days have passed.[8] Under Virginia law, an unlawful detainer constitutes an action "requiring a tenant to vacate."[9] It follows that in Virginia, the CARES Act requires that a landlord wait for the 120 days as prescribed in the CARES Act, in addition to thirty days following notice to vacate, before he or she may file an unlawful detainer against a tenant in a covered dwelling for nonpayment of rent.

The practical application of the CARES Act in Virginia is as follows. A landlord of a covered dwelling must wait at least 120 days from the passage of the CARES Act on March 27, 2020 before they are permitted to provide a notice to vacate to a tenant for nonpayment of rent. Consequently, a landlord must wait until at least July 26, 2020 before providing a notice to vacate the premises. Only after thirty days have passed since issuance of the notice is the landlord permitted to file an action to recover possession of a dwelling covered by the CARES Act, i.e., a summons for unlawful detainer. 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.[10]

c) Lack of Jurisdiction

The CARES Act removes a court's ability to exercise its subject matter jurisdiction to hear unlawful detainers. When a statute contains "prohibitory or limiting language" the statute is considered mandatory and a court cannot exercise its subject matter jurisdiction unless and until the plaintiff complies with statutory requirements.[11]

Section 4024(b) of the CARES Act states that the landlord "may not make, or cause to be made, any filing with the court ... to initiate a legal action to recover possession ...." Consistent with ordinary use, the phrase "may not" has been found by several courts to exemplify the type of prohibitory language that is considered mandatory, thereby depriving a court of its ability to exercise subject matter jurisdiction.[12]

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.

2. 2020 Virginia Acts, ch. 1202 (House Bill 340)

a) Coverage

On April 22, 2020, the General Assembly passed as an emergency House Bill 340,[13] 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."[14] "Affected by" means "experienc[ing] a loss of income from a public or private source due to the Emergency" and the ability to prove the same (i.e., that the tenant is "not currently receiving wages or payments ... as a result of the Emergency").[15]

b) Interaction with the CARES Act

Although House Bill 340 provides that "[t]he 60-day continuance provided by this enactment shall run concurrently with any period of eviction protection provided by any other state or federal law,"[16] it does not preclude tenants who have received eviction protection under the CARES Act from also receiving the 60-day continuance. The intent appears to be to prevent the conversion of multiple protections that operate at the same time into "consecutive" protections. The CARES Act period of eviction protection, however, does not operate at the same time as the 60-day continuance period. Rather, the CARES Act period necessarily occurs before the filing of an unlawful detainer, while the 60-day continuance period occurs after the filing of an unlawful detainer.

Because the protections do not overlap and thus cannot be stacked, in my opinion tenants may receive both the CARES Act protections and the protections of the 60-day continuance.

c) Eviction Protections

If a tenant appears at the initial court date listed on the summons for unlawful detainer and provides "written proof" to the court of his or her COVID-19-related loss of income, House Bill 340 provides that the court shall grant a 60-day continuance.[17] "Written proof" means "(i) a paystub showing zero dollars in earnings for a pay period within the period for which the Governor has declared a state of emergency ... in response to the novel coronavirus (COVID-19) pandemic ..., (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.[18]

d) Mandatory Provisions

The protections afforded by House Bill 340 extend for 90 days after the end of the State of Emergency, which is currently ongoing and indefinite.[19] Any tenant who qualifies under the terms of House Bill 340 is entitled to the continuance. The statutory language "shall grant a 60-day continuance" does not give the court discretion in whether to grant the continuance or for how long.

II. Other Entities With Authority

1. Judicial

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.[20] A judicial emergency may be declared "when a disaster, as defined in § 44-146.16, substantially endangers or impedes the operation of a court, the ability of persons to avail themselves of the court, or the ability of litigants or others to have access to the court or to meet schedules or time deadlines imposed by court order, rule, or statute."[21] An order declaring a judicial emergency order "may suspend, toll, extend, or otherwise grant relief from deadlines, time schedules, or filing requirements imposed by otherwise applicable statutes, rules, or court orders in any court processes and proceedings," including unlawful detainers.[22] The duration of a judicial emergency order can be up to 21 days and may be extended for additional periods not to exceed 21 days by a majority of the justices of the Supreme Court.[23] Moreover, "[i]n the event of a communicable disease of public health threat, as defined in § 44-146.16, a majority of the justices of the Supreme Court may extend such order for the duration of the threat."[24]

The Court declared a COVID-19-related judicial emergency on March 16, 2020, and has issued several subsequent orders to extend the emergency through August 9, 2020. While unlawful detainer actions for non-payment of rent were suspended for a time, the Court's Sixth Order states: "Effective June 29, 2020, courts may resume hearing all unlawful detainer actions and issuing writs of eviction."[25]

Additionally, individual courts have considerable discretion to grant continuances, as stated in the Code of Virginia and the Rules of the Supreme Court of Virginia. Section 16.1-93 of the Code, applicable to General District Courts states: "The court may make such provisions as to costs and continuances as may be just." Rule 7A:14 of the Rules of the Supreme Court of Virginia, which specifically governs General District Courts, permits continuances to be granted "for good cause shown." A court may consider the pandemic conditions under the "good cause" analysis.

2. Legislative

Subject to constitutional constraints, the General Assembly can pass legislation placing limitations on evictions[26] as it did during the 2020 Reconvened Session. It also possesses the power to pass legislation authorizing localities to place limitations on evictions.[27]

3. Executive

The Governor has both statutory and executive authority to issue emergency orders. The Constitution of Virginia vests "[t]he chief executive power of the Commonwealth" in the Governor.[28] In addition to the Governor's executive power under the Constitution of Virginia, the Virginia Emergency Services and Disaster Law of 2000 "confer[s] upon the Governor ... emergency powers."[29] Whether any particular executive order is an appropriate exercise of emergency power depends on the scope of the executive order and the facts and circumstances.

Conclusion

In short, the CARES Act, as well as the recent enactments of the General Assembly, contain various protections for those facing potential eviction in Virginia. Additionally, the branches of Virginia government each possess tools that, depending on the facts and circumstances, may be used to aid those facing eviction.

With kindest regards, I am,

Very Truly Yours,

Mark R. Herring
Attorney General

1. Coronavirus, Aid, Relief, and Economic Security Act ("CARES Act"), Pub. L. No. 116-136, § 4024 (2020). The full text of the CARES Act may be accessed at https://www.congress.gov/bill/116th-congress/house-bill/748/text/enr.

2. See 34 U.S.C. § 12491(a).

3. 42 U.S.C. § 1490r.

4. CARES Act, § 4024(a)(2)(A)(ii).

5. CARES Act, § 4024(a)(4).

6. CARES Act, § 4024(a)(5).

7. Referred to collectively hereinafter as "non-payment of rent."

8. CARES Act, § 4024(c).

9. See Va. Code Ann. § 55.1-1245; § 55.1-1251.

10. I note that the CARES Act sets out separate protections in Section 4023 that may apply if landlord is a borrower on a federally backed multifamily mortgage. In circumstances where those protections apply, eviction protection may extend beyond August 25, 2020. See CARES Act, § 4023.

11. See Marrison v. Fairfax Cty. Dep't of Family Servs., 59 Va. App. 61, 68-69, 717 S.E.2d 146, 149 (2011); see also Fredericksburg D.S.S. v. Brown, 33 Va. App. 313, 319, 533 S.E.2d 12, 15 (2000) ("'A court's authority to exercise its subject matter jurisdiction over a case ... may be restricted by a failure to comply with statutory requirements that are mandatory in nature and, thus, are prerequisite to a court's lawful exercise of its jurisdiction."') (quoting Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d 415, 417 (2000)); Avery v. Virginia Retirement Sys., 33 Va. App. 210, 215, 532 S.E.2d 348, 350 (2000).

12. See MSP Recovery Claims, Series LLC. v. The Progressive Corp., Case No. 1:18CV2273, 2019 WL 5448356, at *9 (N.D. Ohio Sept. 17, 2019); Perez v. General Packer, Inc., 790 F. Supp. 1464, 1470 (C.D. Cal. 1992); In re: Foreclosure of Tax Liens by Proceeding in Rem Pursuant to Article 11 of Real Prop. Tax Law by City of Utica, 175 A.D.3d 1047, 1048, 107 N.Y.S.3d 798, 799 (N.Y. App. Div. 2019).

13. 2020 Va. Acts, ch. 1202 (codified in part as Va. Code Ann. § 44-209).

14. See generally Exec. Order No. 51, Extending Declaration of a State of Emergency Due to Novel Coronavirus, as amended May 26, 2020 (extending the emergency first declared on March 12, 2020). Section § 1 of the second enactment clause of House Bill 403 extends eviction continuance provisions to any tenants affected by the pandemic during the period of the emergency, not only those affected by federal government shutdown as referenced in § 44-209(B).

15. Id., enactment clause two, § 5.

16. Id., enactment clause two, § 4.

17. Id., enactment clause two, § 1; Va. Code Ann. § 44-209(B).

18. Id., enactment clause 2, § 5.

19. See Exec. Order No. 51, Extending Declaration of a State of Emergency Due to Novel Coronavirus, as amended May 26, 2020.

20. Va. Code Ann. § 17.1-330.

21. Id. at subsection A.

22. Id. at subsection D.

23. Id. at subsection E.

24. Id. at subsection E.

25. Supreme Court of Virginia, In Re: Sixth Order Extending Declaration of Judicial Emergency in Response to COVID-19 Emergency (June 22, 2020).

26. See, e.g., Va. Code Ann. § 55.1-1200 to -1262 (Virginia Residential Landlord and Tenant Act).

27. See, e.g., Va. Const., art. IV, § 14 ("The authority of the General Assembly shall extend to all subjects of legislation not herein forbidden or restricted ....").

28. Va. Const. art. V, § 1.

29. Va. Code Ann. § 44-146.14(a).