Unlawful detainer summons does not violate CARES Act

Filing a summons for unlawful detainer doesn’t violate the federal law that prevents a landlord from requiring a tenant vacate within 30 days of notice to vacate, the Court of Appeals of Virginia has held in a matter of first impression.

The tenants claimed their landlord’s issuance of summons required them to vacate within 30 days after receiving a five-day notice to quit violated the Coronavirus Aid, Relief, and Economic Security, or CARES, Act. The circuit court agreed and dismissed the unlawful detainer case.

But Judge Daniel E. Ortiz found that Virginia’s lengthy unlawful detainer process provided “various opportunities for an eviction to be cancelled” before a tenant must vacate.

“Thus, only an officer’s execution of a writ during the 30-day window violates the CARES Act; issuance of a summons before 30 days has passed does not violate the Act,” the judge said, adding that the CARES Act preempted conflicting state law.

Joined by Senior Judge Robert J. Humphreys and Judge Mary Grace O’Brien, Ortiz reversed and remanded Woodrock River Walk LLC v. Rice (VLW 024-7-309).

Attorneys for the parties did not respond to a request for comment.

Unlawful detainer

Woodrock River Walk issued a notice of failure to pay rent to residential tenants Lloyd Rice and Christine Andrade. Although Woodrock would terminate the tenants’ lease if they didn’t pay within five days, the notice didn’t require them to vacate for 30 days per the CARES Act.

The tenants didn’t pay; 29 days after issuing the notice, Woodrock initiated an eviction by filing a summons for unlawful detainer. The tenants moved to dismiss, asserting that Woodrock violated the CARES Act.

The circuit court dismissed Woodrock’s case, reasoning that the CARES Act requires a landlord to wait 30 days after providing notice to terminate a lease before filing a summons for unlawful detainer.

Woodrock appealed.

Required to vacate?

The CARES Act — 15 U.S.C. § 9058(c)(1) — provides that a landlord “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.”

Ortiz said it was a matter of first impression whether either filing a summons for unlawful detainer or terminating a lease required a tenant to vacate their premises.

Under § 9058(b)(1), landlords are prohibited from “mak[ing], or caus[ing] to be made, any filing with the court of jurisdiction to initiate a legal action to recover possession of the covered dwelling from the tenant for nonpayment of rent or other fees or charges” for 120 days after the CARES Act passed.

Although that period has passed, Ortiz noted that § 9058(c) lists a summons for unlawful detainer as a type of covered filing.

“Thus, during the covered 120-day period, a landlord could not file a summons for unlawful detainer,” the judge explained.

However, he added that subsection (c) doesn’t mention filings or summonses.

“If Congress had intended to include filings within this subsection, it would have said so, as it does in the directly preceding subsection,” Ortiz wrote. “Given this, we find that Congress did not intend 15 U.S.C. § 9058(c) to prevent landlords from filing a summons during the 30 days after a landlord provides notice.”

Initial filing

Having determined that the only way for a summons to violate the CARES Act would be if it required a tenant to vacate their premises, Ortiz looked to the Supreme Court of Virginia’s opinion in Parrish v. Fannie Mae for further guidance.

The Parrish court specified that an unlawful detainer action is brought by a plaintiff lawfully entitled to possession against a defendant who is unlawfully withholding under an expired right of possession. Disputes over the validity of a plaintiff’s claim are adjudicated.

“Thus, a summons for unlawful detainer is merely the initial filing that begins the eviction proceeding,” Ortiz said. “This summons ‘authorize[s] the removal of the tenant or other person in possession,’ as opposed to mandating the tenant to vacate upon service of the summons.” (emphasis added)

And Va. Code § 55.1-1251 states that “[i]f the rental agreement is terminated, the landlord may have a claim for possession … and such claims may be enforced, without limitation, by initiating an action for unlawful detainer.” (emphasis added)

“The terms ‘authorize’ and ‘enforced’ demonstrate that a summons is simply a step in the enforcement of an eviction action; the landlord does not yet have the legal right to remove the tenant,” Ortiz wrote.

The judge then described the steps required after a court issues a summons before a landlord can compel a tenant to vacate, saying a tenant or third party could cancel a court-ordered writ of eviction.by paying the landlord all amounts owed within 48 hours of service.

“Based on this lengthy process — which contains various opportunities for an eviction to be canceled — we find that it is only when an officer executes the writ that a landlord has the legal power to remove the tenant from the premises,” Ortiz wrote.

He concluded that an officer’s execution of a writ of eviction within the 30-day window would violate the CARES Act, but not the issuance of a summons for unlawful detainer.

Ortiz rebuffed the circuit court’s concern that a judge would only be able to prevent a writ from being issued during the 30 days at the summons stage. There was no need for preventative action because the issuance of a writ during the 30-day window was lawful under the CARES Act.

“In practice, given the multi-step requirements of an eviction, an officer will rarely be able to execute a writ during the 30 days,” the judge said. “But if an officer executes a write during the 30-day window, this is unlawful, and the tenant may assert their rights accordingly.”

Lease termination

The tenants also contended that Woodrock’s notice of lease termination violated the CARES Act because it removed their right to remain in possession within the 30-day window.

But the CARES Act refers to providing a tenant with a notice to vacate as the action that triggers the 30-day window.

“We interpret this notice as a notice to vacate under the CARES Act because it terminated Rice’s lease after five days for failure to pay, and the termination of the lease mandated Rice vacate,” Ortiz wrote.

He said Va. Code § 55.1-1233 — which requires a tenant to promptly vacate the premises after termination of their tenancy — conflicted with the CARES Act “as it is impossible for a landlord to both require the tenant to move out promptly and not to require the tenant to move out during the 30-day timeframe.”

Here, the CARES Act preempted state law, which only meant that a tenant need not immediately vacate after a landlord terminates their lease.

“Rather, under the CARES Act, the landlord may not mandate that the tenant leave the premises for 30 days after the tenant receives notice of failure to pay,” Ortiz said.

The circuit court erred by finding that the initial unlawful detainer summons violated the CARES Act because Woodrock’s notice complied with state and federal law, the judge concluded.