Rule 9.2.Special pleading requirements in residential eviction proceedings

Reporter’s Notes—2025 Amendment: Rule 9.2 was adopted September 13, 2022, effective October 1, 2022, to effectuate requirements of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law No. 116-136, 15 U.S.C. § 9058. The promulgation order provided that the rule would expire September 30, 2025, and directed the Advisory Committee to review the operation of Rule 9.2 and recommend whether to terminate, extend, or revise the rule. V.R.C.P. 9.2(b) enforces an existing notice requirement in 15 U.S.C. § 9058(c)(1). As such, V.R.C.P. 9.2 is made permanent and remains in effect.

Reporter’s Notes—2024 Amendment: Rule 9.2(c) is deleted. Rule 9.2(c) provided that the court could take appropriate action when there was sufficient evidence that a tenant had applied for funds from the Vermont Emergency Rental Assistance Program (VERAP). VERAP was closed to new applications on October 1, 2022. By January 1, 2024, all pending applications were processed, and available funds exhausted. Therefore, Rule 9.2(c) is deleted as obsolete.

Reporter’s Notes: Rule 9.2 is based on Administrative Order 49, ¶ 21, which expired on September 30, 2022. Paragraph 21 established special pleading requirements for certain residential eviction actions. Rule 9.2(a) states that the rule applies to all actions for eviction of a tenant from residential housing based solely or in part on nonpayment of rent. Rule 9.2(b) implements a notice provision of the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act applicable to evictions from dwellings financed by federally backed loans or participating in certain federal programs. The CARES Act states that the lessor of a covered dwelling unit “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.” 15 U.S.C. § 9058(c)(1). This rule takes no position whether the CARES Act requires a 30-day notice to vacate in cases of eviction other than for reasons of nonpayment of rent and for which Vermont law otherwise permits shorter than 30 days actual notice. See, e.g., 9 V.S.A. § 4467(b)(2) (providing 14-day notice for termination based on criminal activity, illegal drug activity, or acts of violence). Rule 9.2(b)(1) requires that a complaint in an action covered by this rule must contain or be accompanied by a declaration showing either compliance with the 30-day notice requirement of the CARES Act, or that the dwelling from which eviction is sought is not located on or in a “covered property” as defined in 15 U.S.C. § 9058(a)(2). “Declaration” refers to a statement made under penalty of perjury. See V.R.C.P. 11(e). This word is used purposefully in lieu of the language in A.O. 49, ¶ 21(a), which required that the plaintiff “certify” compliance or inapplicability. Rule 9.2(b)(3), like A.O. 49, ¶ 21(b), provides that the court may dismiss a case filed without the declaration. Under Rule 9.2(b)(2), the declaration must be made using the form approved by the State Court Administrator and published on the Judiciary website. It is important for plaintiffs to use the court form because the CARES Act requires plaintiffs to make specific statements for property not covered by the CARES Act, after a full investigation of the circumstances of the property, that no unsatisfied mortgage on the property is subject to a federally backed mortgage, and that the property does not benefit from any federal housing program. To determine whether the property is subject to a federally backed mortgage, the form requires the plaintiff to search in two databases to see whether unsatisfied mortgages are federally backed: KnowYourOptions.com/loanlookup (Fannie Mae) and FreddieMac.com/mymortgage (Freddie Mac). The plaintiff must attach a copy of the first page of any unsatisfied mortgages on the property at issue, as well as copies of the results of the searches in these two databases. These burdens are placed on plaintiff because this information is available to property owners while tenants do not necessarily know whether the properties are financed by federally backed loans or participating in certain federal housing programs. Administrative Order No.49, ¶ 21(d) was adopted to address delays in provision of federal funds available through the Vermont Emergency Rental Assistance Program (VERAP) to pay back rent and forestall evictions from residential housing. As of October 1, 2022, VERAP stopped accepting new applications, but the program will continue to process applications pending as of September 30, 2022. Under Rule 9.2(c), when either party presents the court with sufficient evidence that the tenant filed a VERAP application before October 1, 2022, the court may take appropriate action in fashioning a rent escrow order or writ of possession, including adjusting the timing of issuance of the order or writ, or adjusting the timing and amount of payment. The CARES Act notice requirement has no current expiration date. Pursuant to the promulgation order, the Advisory Committee is to review the operation of this rule and to advise the Court when appropriate, but not later than July 1, 2023, whether the rule should be terminated in whole or in part, extended, revised, or made permanent. In the absence of further order, the rule will be of no effect in any civil action commenced on or after September 30, 2025.