Attorney General weighs in on CARES Act evictions

            On July 15, Attorney General Mark Herring released an advisory opinion concerning legal mechanisms that could affect evictions in Virginia.  Among these the Attorney General discussed the effect of the CARES Act Moratorium.  AG Herring says the following concerning the CARES Eviction Moratorium:  “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.  Under Virginia law, an unlawful detainer constitutes an action “requiring a tenant too vacate.”  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. . . 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.”  (emphasis added by the Attorney General)  The full text of the opinion can be found here:  https://www.oag.state.va.us/files/Opinions/2020/20-033-Price-et-al.pdf

            I disagree with this timeline and with the AG’s analysis.  First, it is true that the owner must provide a 30-day notice to vacate.  The exact wording is:  “The lessor of a covered unit (1) may not require the tenant to vacate the covered dwelling unit before the date that is 30 days after the date on which the lessor provides the tenant with a notice to vacate; and (2) may not issue a notice to vacate under paragraph (1) until after the expiration of the period described in subsection (b).”  The requirement is that the lessor provide the notice to vacate, not the court. 

In addition, if an unlawful detainer is itself a notice to vacate and is interpreted as having been issued by the landlord rather than the court, no prior 30-day notice should be required by the lessor, as long as the eviction is not held until at least 30 days from its issuance.  Nothing in the language of the Act requires that enforcement of the notice to vacate cannot begin until the end of the notice period as asserted in the opinion.  Furthermore, the filing of an unlawful detainer itself is not a guarantee that the tenant will be forced to vacate, as the tenant may exercise his or her right of redemption.

            But most convincing to me is the AG’s citation of Sec. 55.1-1251 in support of his assertion that an unlawful detainer case is a notice to vacate.  The second paragraph of 55.1-1251 states:  “In any unlawful detainer action brought by the landlord, this section shall not be construed to prevent the landlord from being granted by the court a simultaneous judgment for money due and for possession of the premises without a credit for any security deposit. Upon the tenant vacating the premises either voluntarily or by a writ of eviction, security deposits shall be credited to the tenant's account by the landlord in accordance with the requirements of § 55.1-1226.”  This code section defines the writ of eviction, rather than the unlawful detainer itself, as the Notice to Vacate.