Virginia Lawyers Weekly VA Lawyers Weekly
A federal judge’s ruling earlier this month that a nationwide eviction moratorium ordered by the Centers for Disease Control and Prevention is unconstitutional has left unanswered questions for Virginia’s landlords and tenants.
U.S. District Judge Dabney L. Friedrich of the District of Columbia wrote that the CDC acted outside of the scope of the Public Health Service Act in creating this order. The name of the case is Alabama Ass’n of Realtors v. U.S. Dep’t of Health and Human Services.
“The question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not,” Friedrich wrote.
The next day, Friedrich granted an emergency stay at the request of the U.S. Department of Justice, which is appealing the decision.
“In the department’s view, that decision conflicts with the text of the statute, Congress’s ratification of the moratorium, and the rulings of other courts,” the statement from the department said.
The CDC first issued a temporary halt in residential evictions in September 2020 to help combat the spread of COVID-19. The order covers all residents who present a declaration to their landlords that they cannot make full payments on their rent and would be homeless if evicted. The original order ran through Dec. 31, but was extended to Jan. 31, 2021, by Congress and subsequently extended twice by the CDC. The current order is set to expire on June 30.
Effect on Virginians
With the emergency stay in place for now, there may be some confusion on what a tenant has to do. In a statement issued shortly after the court’s decision, the Virginia Legal Aid Society advised local tenants and landlords that the moratorium remains in place for now.
Despite this, VLAS Executive Director David Neumeyer recommended tenants continue to use protections they qualify for.
“Tenants should continue to ask for evictions to be stopped and should apply for rental assistance from the Virginia Rent Relief Program,” Neumeyer said in a statement. “This is our recommendation for the foreseeable future, regardless of the CDC moratorium’s legal status.”
In a May 10 statement, HOME of Virginia expressed concern that the decision to end the CDC moratorium could create problems on the systems providing aid to those in need of housing.
“We are concerned that the abrupt end to the moratorium will overwhelm the systems we are building to manage the tremendous need of individuals and families in Central Virginia for eviction prevention programs and rental assistance,” HOME of Virginia president and CEO Heather Crislip said in a statement. A recent U.S. Census Bureau survey found that just over 50,000 Virginians believe it is “somewhat likely” or “very likely” they will be evicted in the next two months.
Eric Dunn, director of litigation for the National Housing Law Project and HOME of Virginia board member, stressed that concerned tenants should know that, for now, the stay means the federal court’s ruling has “no effect whatsoever” on the CDC order.
“Lower federal court decisions are not controlling in state court eviction cases, so it falls to every state court judge hearing an eviction case to decide for himself or herself whether the CDC order is legitimate,” Dunn wrote via email.
For landlords, the CDC order remaining in effect means they could face legal issues should they pursue an eviction in violation of the order. Per the CDC’s order, a person violating the moratorium order “may be subject to a fine of no more than $100,000 if the violation does not result in a death or more than one of year of jail, or both.” If the violation results in a death, the fine could max out at $250,000. Organizations violating the order face $250,000 fines, $500,000 if a violation results in a death.
Options
Although the CDC moratorium is in legal limbo, multiple rental assistance programs at the local and state level are available in Virginia. Ran by the Virginia Department of Housing and Community Development, the Virginia Rent Relief Program will provide rent arrearage payments back to April 1, 2020 and up to three months of future payments. Tenants must meet “certain pandemic related criteria” to qualify for the program.
Through April 21, RRP has provided rental relief payments to 32,480 unique households, totaling over $175 million since the program was launched last summer. Virginia DHCD does not have data yet to show if the court decision has impacted requests for relief one way or the other.
Apart from the statewide system, residents of central Virginia have options at the local level to request aid. Chesterfield County created Chesterfield Emergency Rent and Utility Assistance independent of the statewide Rent Relief Program. Under this system, Chesterfield renters who qualify can request delinquent rental payments dating back to April 1, 2020. Residents cannot be receiving aid from another source in order to qualify for CERA. Fairfax County also has a similar system; they are the only two counties not using the Virginia Rent Relief Program.
“There is help out there,” Crislip said. “We would encourage every renter who has a deficit and might be facing eviction to reach out and see if they are eligible for some of those resources that are out there to pay back rent.”
Crislip acknowledged the Richmond Eviction Diversion Program as another option for Richmond renters. Low-income renters facing eviction due to nonpayment can request assistance through the program, which was launched in 2019 as a partnership between the Greater Richmond Bar Foundation, HOME of Virginia and the Central Virginia Legal Aid Society.
Future of the moratorium
As of press time, there was no update on when an appeal could be heard. Opponents to the stay had until May 12 to file legal papers opposing the stay, according to Reuters.
Dunn called the federal decision “flawed,” saying the court “fail[ed] to recognize the fact that Congress ratified the CDC’s exercise of the authority to restrict evictions” in December.
“The federal court decision last week was only one of several that have ruled upon the legality of the CDC eviction halt order. There are multiple decisions upholding the order and multiple decisions declaring to have been beyond [the] CDC’s authority,” Dunn said.
With a decision potentially coming in the short-term, Crislip emphasized the importance of requesting assistance should the federal court’s ruling be upheld.
“I would not wait. I would be very proactive about seeing if there are resources out there that could help address the back rent and help to keep you in your unit,” Crislip said.
