Update (March 29, 2021): The CDC residential eviction moratorium is extended to June 30, 2021.
Local attorney Brenda Waugh brings broad-based conflict resolution to her practice. The Observer invited her to comment on this timely topic.
Since the Covid-19 pandemic hit last spring, landlords and tenants have struggled to address challenges created by economic losses. Governmental responses include restrictions on evictions to curtail homelessness. A moratorium on eviction (issued through the Centers for Disease Control), included in the first two Congressional Covid-19 relief bills and extended by executive order, restricts evicting tenants who don’t pay their rent. For the moratorium to apply, the tenant must provide written notice to the landlord that:
- The tenant has experienced a loss in income or reduction in work hours and certifies that their income is less than $99,000.00 per year ($198,000.00 for couples filing jointly).
- That the tenant has sought governmental rental assistance.
- That the tenant may be able to pay a partial payment.
- If evicted, the tenant would be homeless.
The moratorium doesn’t apply to evictions for any reason other than unpaid rents. The unpaid rent continues to be due, and the landlord may begin the eviction process to regain possession when the moratorium expires.
The current moratorium is scheduled to expire on March 31, 2021, and has not been included in the 1.9 trillion dollar rescue bill signed by the President on March 11, 2021, but may be extended by executive order [on March 29, 2021, the CDC extended the residential eviction moratorium to June 30, 2021]. A recent federal court judge declared the moratorium unconstitutional in late February. The ruling’s direct impact is limited to the Eastern District of Texas and does not impact evictions in Virginia or West Virginia.
If the moratorium expires, provisions enacted by cities and states may restrict evictions. While West Virginia has not enacted any eviction restrictions, the state has received $200 million for renter assistance to assist both tenants and landlords. The program opened for application on March 18 and will be administered through the Housing Development Fund (WVHDF). Information and applications are available through the WVHDF website.
The Covid Relief bills passed by Congress assist many landlords suffering a loss of rental payments due to the pandemic by providing landlords with federally backed single-family (1 to 4 unit) mortgages with a forbearance. Additionally, landlords may utilize many of the same foreclosure protections as other consumers in West Virginia.
When the renter no longer qualifies for the moratorium, a landlord regains the property only through an eviction procedure filed in the Magistrate Court. In March 2020, WV Attorney General Patrick Morrisey issued letters reminding landlords of the requirements imposed by state law before evictions.
While eviction litigation may provide relief, many real estate investment experts recommend that landlords consider mediation an alternative. They cite concerns that litigation is costly, can be time-consuming, and creates an adversarial relationship that often results in a tenant being less likely to pay. Landlords may incur attorney fees when cases go to trial, and long delays can result in court processes. Mediation is a voluntary process involving a neutral facilitator who works with the parties to create a legally binding resolution. It does not carry the risks of trial. In one study, the average cost for evictions, including time expended in document preparation and being in court, ranged from $3500-$10,000.00. The average cost for mediation, on the other hand, was $89.00.
Neighboring states such as Maryland and Virginia offer free mediation services to landlords and tenants seeking to avoid litigation costs. In West Virginia, free mediation is available only through a program in Monongalia County. Some landlords retain a private mediator before or after filing suit when a tenant falls behind in rents. Mediation often results in a written, enforceable agreement to address arrears and grant possession of the property. Current federal or state restrictions do not preclude pre-suit mediation on the eviction.
For more information, the West Virginia State Bar operates a free hotline where legal questions may be answered by a volunteer lawyer: 1-800-642-3617.
The West Virginia Legal Services website provides up-to-date information on this topic also.
The document for a tenant to apply for the moratorium can be downloaded from the CDC website (click here).
West Virginia State Bar trained lawyer-mediators are listed on the WVBar website.
Mountaineer Rental Assistance Program information on the WV Housing Development Fund website.
About the Author: Brenda Waugh, MA JD, is a lawyer/mediator with Waugh Law & Mediation, serving clients in the Blue Ridge region of Virginia and Eastern Panhandle of West Virginia. A graduate of the University of Virginia, West Virginia University, and Eastern Mennonite University, she has conducted workshops throughout the United States and in Canada and has published articles in periodicals and legal journals in the area of alternative dispute resolution. Web: BrendaWaugh.com; email: firstname.lastname@example.org; phone 304-728-3660 or 540-501-5501.
This article has been updated to reflect the extension of the CDC residential eviction moratorium to June 30, 2021 and the availability of the Mountaineer Rental Assistance Program. Originally published March 5, 2021By Brenda Waugh