Woodrock River Walk LLC v. Lloyd Rice ( 2024 )

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges O’Brien, Ortiz and Senior Judge Humphreys
Argued at Lexington, Virginia
WOODROCK RIVER WALK LLC
OPINION BY
v. Record No. 1860-23-3 JUDGE DANIEL E. ORTIZ
OCTOBER 8, 2024
LLOYD RICE, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
J. Christopher Clemens, Judge
Patrick R. Pettitt (Senex Law, PC, on briefs), for appellant.
Jarryd Smith (Legal Aid Society of Roanoke Valley, on brief), for
appellees.
Under the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, a
landlord may not require a tenant to vacate the premises until 30 days after receiving a notice to
vacate. Here, Woodrock River Walk, LLC issued a notice of failure to pay rent, which stated
that, in accordance with Virginia law, Lloyd Rice and Christine Andrade (collectively Rice) must
pay their owed rent within five days or their lease would be terminated. The notice also
informed Rice that under the CARES Act, they were not required to leave their premises for 30
days. Twenty-nine days later, Woodrock initiated an eviction by filing a summons for unlawful
detainer. The circuit court ruled that the summons violated the CARES Act and dismissed the
eviction proceeding. Woodrock appeals, arguing that only the execution of a writ of eviction
requires a tenant to vacate.
We reverse and remand for three reasons. First, the plain language of the CARES Act
does not prevent a landlord from filing a summons during the 30-day period following the notice
to vacate. Second, a summons does not require a tenant to leave the premises. A landlord
cannot compel a tenant to vacate until an officer executes a writ of eviction; thus, it is only the
execution of a writ during the 30-day timeframe that would violate the CARES Act. Third,
although Woodrock terminated Rice’s lease, requiring Rice to promptly move out under Code
§ 55.1-1233, the federal CARES Act preempts Code § 55.1-1233’s promptness requirement and
grants the tenant 30 days to remain on the premises after receiving a notice to vacate. Based on
this, the circuit court erred when it found that Woodrock’s initial unlawful detainer summons
violated the CARES Act.
BACKGROUND
The following facts are not in dispute. On December 7, 2022, Woodrock issued a notice
of failure to pay rent to Rice. The notice stated that Rice must pay the full amount of their owed
rent within five days, or their lease would be terminated and Woodrock could “proceed to obtain
possession of the [d]welling as provided in Virginia Code § 55.1-1251.” The notice, however,
also explained that Rice was “not required to vacate the [d]welling during the 30-day CARES
Act [n]otice period.”
After Rice failed to pay, Woodrock filed a summons for unlawful detainer in the City of
Salem General District Court (GDC). Woodrock filed the summons on January 5, 2023—29
days after issuing the notice. The GDC dismissed the unlawful detainer without prejudice.
Woodrock appealed to the Salem Circuit Court.
In response, Rice filed a motion to dismiss on special plea, asserting that Woodrock’s
summons violated the CARES Act. Rice argued that under the CARES Act, a landlord cannot
require a tenant to leave their property until 30 days after the tenant receives notice, and here the
summons was issued 29 days after Rice received notice. Woodrock filed a memorandum in
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opposition1 to Rice’s motion, claiming that the 30-day requirement under the CARES Act only
applied to writs of eviction, not to summonses for unlawful detainers. In its September 27, 2023
final order, the circuit court denied Woodrock’s memorandum in opposition and granted Rice’s
motion to dismiss on special plea.2 At the hearing, the court stated that after the landlord
provides notice, the CARES Act requires the landlord to wait 30 days before filing a summons.
Woodrock appeals.
ANALYSIS
I. Standard of Review
Because this appeal solely centers on the statutory interpretation of the CARES Act and
Virginia landlord tenant law, we apply a de novo standard of review. L.F. v. Breit, 285 Va. 163,
176 (2013).
II. Actions in an Eviction Proceeding
In 2020, Congress enacted the federal CARES Act in response to the COVID-19
pandemic and the economic crisis it created. CARES Act, Pub. L. No. 116-136, 134 Stat. 281
(2020). Section 9058 of the CARES Act provides protection to tenants in covered housing units
1
Woodrock styled this filing as a “Demurrer and Memorandum in Opposition to
Defendants’ Motion to Dismiss on Special Plea.” The Court is unclear on how a plaintiff could
file a demurrer in response to a motion to dismiss on special plea. Accordingly, we will treat the
filing only as a memorandum in opposition.
2
The final order also states that the parties agreed:
[T]here was no dispute about the underlying case, that the
proffered Lease, Ledger, Notice of Failure to Pay Rent, and Tenant
Rights & Responsibilities, were all true and correct copies, and that
they combined to establish a prima facie case for all amounts
claimed due by Plaintiff as set forth in the Bill of Particulars and/or
Memorandum in Opposition to Defendants’ Motion to Dismiss on
Special Plea.
The memorandum in opposition states that Rice owes $15,624.25 in rent, $398 in late fees, $60
in court costs, reasonable attorney fees, and 6% interest from the date of judgment.
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whose landlords receive financial benefits from certain federal programs. Under 15 U.S.C.
§ 9058(c)(1), 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.” As a matter of first impression, we must decide whether either filing a summons for
unlawful detainer or terminating a lease requires a tenant to vacate their premises. If so, a
landlord violates the CARES Act if they take either action during the 30 days following the
issuance of a notice to vacate. First, we analyze whether a summons mandates that tenants leave
their premises. Second, we examine if the termination of a lease requires tenants to vacate their
premises.
A. A summons for unlawful detainer does not require a tenant to vacate their premises.
Examining the plain language of the CARES Act, we analyze whether the circuit court
properly interpreted the statute when it held that a summons for unlawful detainer issued within
the 30 days after providing notice violated the CARES Act. “Under basic rules of statutory
construction, we examine a statute in its entirety, rather than by isolating particular words or
phrases.” Cummings v. Fulghum, 261 Va. 73, 77 (2001). We “‘presume that the legislature chose,
with care, the specific words of the statute’ and that ‘[t]he act of choosing carefully some words
necessarily implies others are omitted with equal care.’” Va. Elec. & Power Co. v. State Corp.
Comm’n, 300 Va. 153, 163 (2021) (alteration in original) (quoting Wal-Mart Stores E., LP v. State
Corp. Comm’n, 299 Va. 57, 70 (2020)). And when the legislature “uses two different terms in the
same act, it is presumed to mean two different things.” Klarfeld v. Salsbury, 233 Va. 277, 284-85
(1987) (quoting Forst v. Rockingham Poultry Mktg. Coop., Inc., 222 Va. 270, 278 (1981)).
Adhering to these rules of statutory construction, we examine both the subsection at issue,
15 U.S.C. § 9058(c), and the preceding subsection, 15 U.S.C. § 9058(b). As noted above, 15 U.S.C.
§ 9058(c) states that a landlord “may not require the tenant to vacate” until 30 days have passed
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from when the landlord provided the notice to vacate. Subsection 9058(b)(1) prevents landlords
from “mak[ing], or cau[sing] 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 a period of 120 days after the enactment of the CARES Act. While we note that
this subsection of the statute has expired, it was passed by Congress at the same time as subsection
9058(c), in response to the COVID-19 pandemic. And under this language, a summons for
unlawful detainer—which is filed with a court to initiate an eviction action—is a type of covered
“filing.” Thus, during the covered 120-day period, a landlord could not file a summons for unlawful
detainer. In contrast, subsection (c) does not mention filings, including a summons. If Congress
had intended to include filings within this subsection, it would have said so, as it does in the directly
preceding subsection. 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.
As filings are not mentioned in 15 U.S.C. § 9058(c), the only way for a summons to
violate the CARES Act would be if it required a tenant to vacate their premises. This is not the
case. The Supreme Court has specified that an
[u]nlawful detainer is an action against a defendant who lawfully
entered into possession of real property but whose right to lawful
possession has since expired. It is brought by a plaintiff lawfully
entitled to possession at the time of suit, which the defendant is
then unlawfully withholding. The validity of the plaintiff’s right of
possession is an issue that, when disputed, must be determined in
the adjudication of the unlawful detainer action.
Parrish v. Fannie Mae, 292 Va. 44, 50 (2016) (citation omitted). Thus, a summons for unlawful
detainer is merely the initial filing that begins the eviction proceeding. If a premises “is
unlawfully detained by the person in possession thereof,” a landlord or other person entitled to
possession may file a summons for unlawful detainer. Code § 8.01-126. This summons
“authorize[s] the removal of the tenant or other person in possession,” as opposed to mandating
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the tenant to vacate upon service of the summons. Id. (emphasis added). 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.
In fact, there are many steps after a court issues a summons before a landlord can compel
the tenant to vacate. After a summons is issued, served, and returned, “the case [is] heard and
determined by the judge of a general district court.” Code § 8.01-126. At this hearing, if a
tenant offers a redemption tender3 or if the tenant or a third party pays all owed fees the court
may dismiss the action under Code § 55.1-1250(B) and (C). If payment is not made, the court
may issue a judgment for the landlord for possession of the premises at the same hearing,
subsequent hearings, or trial. Based on the judgment, the landlord may request a writ of eviction.
Code § 8.01-129. If the court grants the writ, an officer may not execute the writ until after the
expiration of the tenant’s ten-day appeal period. Id. An officer must serve a notice of intent to
execute the writ at least 72 hours before the eviction. Id. Even then, the writ of eviction will be
canceled if the tenant or a third party pays the landlord all amounts owed “48 hours before the
date and time scheduled by the officer” executing the writ. Code § 55.1-1250(D). 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. Thus, only an officer’s execution of a writ during the 30-day window
3
A “‘redemption tender’ means a written commitment to pay all rent due and owing as of
the return date, including” associated fees “within 10 days of such return date.” Code
§ 55.1-1250(B).
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violates the CARES Act; issuance of a summons before 30 days has passed does not violate the
Act.
The circuit court specified that it was relying on the reality of the Virginia eviction
process in making its ruling. It stated that “a judge does not see the writ. The writ is in the
clerk’s office . . . . [I]f previous paperwork that was entered by the judge is appropriately
complied with on the writ, then the writ just goes out. The judge [does not] sign the writ.”
According to the circuit court, this means that the only time a judge would be able to prevent a
writ from being issued during the 30 days would be at the filing of a summons stage. But there
is no need for circuit courts to take this preventive action because we hold the issuance of a writ
during the 30-day window is lawful under the CARES Act. It is only when an officer executes a
writ during the 30-day window that the CARES Act is violated. In practice, given the multi-step
requirements of an eviction, an officer will rarely be able to execute a writ during the 30 days.4
But if an officer executes a writ during the 30-day window, this is unlawful, and the tenant may
assert their rights accordingly.
4
First, when a tenant has failed to pay, the landlord must issue a notice of failure to pay
to the tenant and provide the tenant with a minimum of five days to pay or quit. Code
§ 55.1-1245(F). Second, the summons must be signed, issued, and served, which we will assume
takes a day. Code § 8.01-126(B). Third, an initial hearing on the summons must occur “as soon
as practicable,” but at least ten days after the summons is served. Id. At this hearing, the court
may issue a judgment of possession and a writ of eviction, which an officer may not enforce
during the tenant’s ten-day appeal period. Code § 8.01-129. This means that in a best-case
scenario a writ will not be enforced for 26 days. Given the realities of how long it takes to serve
a tenant and schedule a hearing, and the possibility of multiple hearings—for example, if a trial
is requested—it is highly likely that in most cases, the eviction process will take more than 26
days.
We do recognize that there are different statutory requirements for notice depending on
the grounds for eviction and that these varying requirements change this timeframe calculation.
Despite these differing time frames, the same principle holds: under the CARES Act, an officer
may not enforce a writ of eviction until at least 30 days after a notice to vacate.
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Here, Woodrock filed a summons 29 days after issuing a notice of failure to pay. As a
summons does not require a tenant to leave their premises, Woodrock’s action did not violate the
CARES Act.
B. Termination of a lease does not require a tenant to vacate their premises.
We next turn to whether a notice terminating a lease violates the CARES Act. Adhering
to Code § 55.1-1245(F), Woodrock’s notice stated that if Rice did not pay the amounts due
within five days, then Woodrock would terminate Rice’s lease. As Rice did not pay, Woodrock
validly terminated the lease under Virginia law. Rice argues that terminating their lease during
the 30-day window violated the CARES Act because “[t]he lease is the instrument that gives
[Rice] the right to remain in the dwelling unit, [and] if the lease terminated [then] they have no
right to remain in the unit.”
The CARES Act refers to “provid[ing] the tenant with a notice to vacate” as the action
that triggers the 30-day timeframe. Here, Woodrock issued a notice of failure to pay to the
tenant in accordance with Code § 55.1-1245. 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. Code § 55.1-1233 states that “[a]t the
termination of the term of tenancy, whether by expiration of the rental agreement or by reason of
default by the tenant, the tenant shall promptly vacate the premises.” There is a clear conflict
between this and 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. Thus,
the state law here is preempted by the federal CARES Act. Maretta v. Hillman, 283 Va. 34, 40
(2012) (“[S]tate law . . . is preempted ‘to the extent that it actually conflicts with federal law.
Such a conflict arises when compliance with both federal and state regulations is a physical
impossibility.’” (quoting Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153
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(1982))). This does not mean, as Rice asserts, that a landlord may not terminate a lease during
the 30-day window. It only means that after a landlord terminates a lease, the tenant need not
immediately vacate. 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. This
interpretation adheres to the purpose of the CARES Act—to provide protection to tenants by
allowing them to remain in their premises for additional time despite receiving a notice to vacate.
Here, the notice complied with both Virginia law and the CARES Act. The notice
followed Code § 55.1-1245(F) by informing Rice that they had five days to pay their rent and
late fees, or their lease would be terminated. It also adhered to the CARES Act by instructing
Rice that they were not required to vacate until 30 days after receiving the notice to pay or quit.
We therefore find that Woodrock’s notice was lawful.
CONCLUSION
Neither a summons nor a notice of termination of a lease requires a tenant to vacate the
premises. A landlord has a legal right to remove a tenant from their premises only when an officer
executes a writ of eviction, after a landlord complies with multiple procedural stages in the eviction
process. Therefore, the CARES Act is violated only when an officer executes a writ during the 30
days after a landlord has served a notice to vacate. Because the circuit court erroneously found that
the summons violated the CARES Act, we reverse and remand this matter.5
Reversed and remanded.
5
Because we conclude the circuit court erred in its interpretation of the CARES Act, we
need not reach Woodrock’s remaining assignments of error.
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