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New Laws Passed in Virginia for Protections from Eviction and Mortgage Foreclosure

This year the Virginia Assembly has passed fourteen new laws that provide new protections for tenants and homeowners.   Some of these laws are playing a decisive role in the courts as unlawful detainer actions are being filed at record numbers and foreclosures loom over homeowners and residential rental unit owners.  This summer alone, there were over 6,000 eviction hearings scheduled between July 20 and Aug. 7 this year.[1]  And since the Virginia Supreme Court has lifted the moratorium on evictions based on nonpayment eviction proceedings have increased significantly.  In Fairfax County alone it is purported by the Eviction Prevention and Intervention Team that they have processed over 700 cases.

Several new recently enacted or amended laws regarding pending foreclosures and evictions have given protections to homeowners and renters.

Federal Government Shutdowns and COVID-19 Pandemic Protections

Under Virginia Code Section 44-209, federal employees, federal contractors, and employees of federal contractors who are affected by a United States federal government shutdown of 14 consecutive days or longer are given temporary protections from evictions or foreclosures.  HB 340 extends those same protections to anyone affected by the novel coronavirus (COVID-19) pandemic public health crisis during the period from which the Governor of Virginia declares a state of emergency plus 90 days.[2]  The following protections are available:

  • A 60-day stay on any unlawful detainer actions; and
  • A 30-day stay of foreclosure proceedings for homeowners, and owners who rent to a tenant, who request a stay. The bill requires that the request for a stay of foreclosure proceedings be within 90 days of a closure of the United States government or 90 days following the end of such closure, whichever is later.

Those protected during a federal government shutdown must provide written proof which includes:

  1. a paystub issued by a federal government agency showing zero dollars in earnings for a pay period within the period of any closure of the United States government;
  2. a copy of a furlough notification letter or essential employee status letter indicating the employee’s status as nonessential; or
  3. a letter from a company under contract with the United States government issued and signed by an officer or owner of the company or by the company’s human resources director stating that the employee’s not receiving payment from the contractor is directly attributable to a closure of the United States government.

Similarly, those seeking protection from eviction during the COVID 19 Pandemic State of Emergency must also come to court with written proof of not getting paid during the pandemic.  It is important to remember these protections are for evictions due to nonpayment, not for other reasons.[3]

Unlawful Ouster, Exclusion or Diminution of Services – Ex Parte Communications

An amendment to Virginia Code Section 55.1-1243 allows tenants to get temporary relief.  If the General District Court Judge finds that the tenant made a good faith effort to notify the landlord of the filing, the General District Court Judge can grant a temporary ex parte order granting relief.  A full hearing must be scheduled to be held within five days of the order.  This law also allows for a prevailing tenant to receive actual damages and attorney’s fees.[4]

Expungement of Eviction Litigation

Current Virginia law leaves eviction proceedings to stay on the court record for 10 years, even if the lawsuit is dismissed.  The amendment to Virginia Code Section 8.01-130.01 does not take effect until January 1, 2022.  Once it does, persons with earlier eviction litigation may petition the court to expunge any eviction lawsuit that was dismissed or when more than six months have passed since the complaint was nonsuited.  Starting in January 2022, the General District Court will automatically expunge any such suit if it is dismissed or six months have passed since it was nonsuited.[5]

 

[1] https://richmond.com/news/state-and-regional/virginia-supreme-court-does-not-extend-evictions-moratorium-effect-on-tenants-unclear-amid-federal-action/article_8fbe6bda-13bc-5f91-acd6-460b27efaffc.html

[2] Recently passed HB5005 provides that, pursuant to the Governor’s declaration of a state of emergency under Virginia Code Section 44-146.17, no landlord shall terminate a residential tenancy, or take any action to obtain possession of a dwelling unit for nonpayment of rent through December 31, 2020, unless such eligible tenant refuses to apply for Virginia Rent and Mortgage Relief Program assistance and refuses to cooperate with the landlord in applying for rental assistance through the Virginia Rent and Mortgage Relief Program.

[3]https://lis.virginia.gov/cgi-bin/legp604.exe?201+sum+HB340&201+sum+HB340;

https://law.lis.virginia.gov/vacode/title44/chapter7/section44-209/

[4] https://law.lis.virginia.gov/vacode/title55.1/chapter12/section55.1-1243/

[5] https://law.lis.virginia.gov/vacode/title8.01/chapter3/section8.01-130.01/

© Caulkins & Bruce PC, 2020.  The information presented is for informational purposes only.  You should not construe it as legal advice or a legal opinion on any specific fact or circumstances.

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