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Covid and Rental Properties:  What Landlords and Tenants Need to Know 
By Brenda Waugh

Since the Covid-19 pandemic hit last spring, landlords and tenants have struggled to address challenges created by economic losses. Governmental responses include restrictions on evictions to curtail homelessness.

A CDC moratorium on eviction, included in the first two Covid-19 relief bills and extended by executive order, restricts evicting tenants who don’t pay their rent. The tenant must provide written notice to the landlord that:

  • The tenant has experienced a loss in income or reduction in work hours and certifies that their income is less than $99,000.00 per year ($198,000.00 for couples filing jointly);
  • The tenant has sought governmental rental assistance;
  • They may be able to pay a partial payment;
  • If evicted, the tenant would be homeless.

The moratorium doesn’t apply to evictions for any reason other than unpaid rents. The unpaid rent continues to be due, and the landlord may begin the eviction process to regain possession when the moratorium expires. The moratorium is scheduled to expire on March 31, 2021 and has not been included in the 1.9 trillion dollar rescue bill passed by the House of Representatives but may be extended by executive order. A recent federal court judge declared the moratorium unconstitutional in late February. The ruling’s direct impact is limited to the Eastern District of Texas and does not impact evictions in Virginia.

If the moratorium expires, provisions enacted by cities and states may restrict evictions. In Virginia, tenants have a right to a sixty-day continuance in an eviction proceeding so long as they attend the first hearing and demonstrate financial hardship.

Many Virginia landlords must also provide written notice before seeking to evict a tenant. The notice includes the amount due, opportunities for a payment plan, and information about the state relief program before seeking to evict a tenant for nonpayment of rent. In those cases, the landlord may complete the application for those programs.

The Covid Relief bills that have passed Congress and the bill that is now pending assists many landlords suffering a loss of rental payments due to the pandemic. They provide landlords with federally backed single-family (1–4 unit) mortgages with a forbearance. In Virginia, most landlords may enjoy many of the same foreclosure protections as other consumers.

When the renter no longer qualifies for the moratorium, a landlord can regain possession only through an eviction procedure filed in General District Court. While litigation may give some relief, many real estate investment experts recommend that landlords consider mediation an alternative to litigation.

They cite concerns that litigation is costly, can be time consuming, and creates an adversarial relationship that often results in a tenant less likely to pay. Landlords may incur attorney fees when cases go to trial, and long delays can result in court processes. Mediation is a voluntary process involving a neutral facilitator who works with the parties to create a legally binding resolution. It does not carry the risks of trial. In one study, the average cost for evictions, including time expended in document preparation and being in court, ranged from $3,500 to $10,000.

The average cost for mediation, on the other hand, was $89. The Virginia Supreme Court funds a mediation program in the General District Court for all cases, including landlord-tenant cases. Some landlords engage a private mediator before filing when a tenant falls behind in rents to reach a written, enforceable agreement to address arrears and possession of the property.

While a landlord can remove a tenant involuntarily only with a court order, the mediation agreements often prevent that action. Current federal or state restrictions do not preclude pre-suit mediation on eviction.

For more information, the Virginia Lawyer Referral Service may be contacted
at 800-522-7977.

The document for a tenant to apply for the moratorium is located online at https://legalfaq.org/covid/va#national and https://www.cdc.gov/coronavirus/2019-ncov/downloads/declaration-form.pdf.

Resources for landlords can be found at http://www.vacourts.gov/news/items/covid/2020_0605_unlawful_
detainers_and_writs_of_eviction.pdf.

Supreme Court certified mediators are listed online at http://www.courts.state.va.us/courtadmin/aoc/djs/programs/drs/mediation/
mediators.html.

Brenda Waugh is a lawyer/mediator with Waugh Law & Mediation, serving clients in the Blue Ridge region of Virginia and Eastern Panhandle of West Virginia. She has conducted workshops throughout the U.S. and in Canada, and has published articles in periodicals and legal journals in the area of alternative dispute resolution.