Bill would end exception that prevented indigent people from appealing evictions

Today, the House of Virginia passed Sen. Jennifer McClellan’s (D-Richmond) bill (SB 474), removing the requirement that indigent Virginians pay appeal bonds in order to have their eviction cases heard. 

The bill passed 65-35 bipartisan vote after passing the Senate with bipartisan support in February.  The House companion bill carried by Delegate Jeffrey M. Bourne (D-Richmond) likewise passed the House and Senate.  Both bills now go to Gov. Glenn Youngkin’s desk for signature.

“These bills will ensure that every Virginian gets equal access to our court system, regardless of their income,” Sen. McClellan said. “By giving indigent people the right to appeal their evictions, these bills will help people stay in their homes during appeals and avoid unfair evictions. I’m pleased to see them pass the House and Senate with bipartisan support and look forward to the governor’s signature.”

Under current Virginia law, eviction appeals are one of a handful of exceptions in which indigent people must post an appeal bond to have their case heard in circuit court. Appeal bonds in eviction cases can be considerably high, costing anywhere from a few hundred dollars to several thousands of dollars. This effectively prevents most indigent individuals from appealing their cases and staying in their homes. Due to the lack of appeals, any mistakes made by general district court judges often fly under the radar and are left uncorrected. 

“Everyone should have fair and equal access to our justice system, regardless of their income level,” said Del. Bourne. “These bills ensure that all tenants are able to appeal an eviction decision, which is a critical protection. Thank you to Senator McClellan and all of the advocates who worked tirelessly to pass this legislation.”

Sen. McClellan’s and Delegate Bourne’s bills allow judges to waive the requirement for an indigent defendant in civil actions to post an appeal bond in an eviction appealed from the general district court.

“Our justice system only works if all Virginians have equal access to the courts, including equal opportunities to appeal judicial decisions they believe to be incorrect,” said Christie Marra, Director of Housing Advocacy at the Virginia Poverty Law Center. “Yet for over a decade, low-income tenants have effectively been denied the opportunity to appeal judicial decisions in nonpayment eviction cases because the law required them to post bond with money they did not have. These bills remedy this injustice by allowing low-income tenants to appeal without posting bond, and thereby providing these low-income tenants the same access to our justice system that higher-income tenants have enjoyed all along.”

“These bills finally place all low-income tenants on the same footing as other Virginians and offers them the ability to have their eviction judgments reviewed on appeal in Circuit Court, just like everybody else,” said Victoria Horrock, Senior Supervising Attorney with the Legal Aid Justice Center. “These bills are a critical step forward in fulfilling the Constitutional guarantees of fairness and due process for all, and the promise of true access to justice for low-income Virginians–especially when basic needs like shelter are at stake.”

McClellan’s and Bourne’s bills also set a clear standard for determining whether a defendant is indigent in civil cases, bringing it in line with the definition for criminal cases. Virginia’s current law has been unclear, leading to significant confusion.

“The Virginia Code itself does not generally define indigent in the civil context nor specifically define ‘indigent’ in the context of court jurisdiction,” wrote Arlington lawyer Steven A. Krieger in the Georgetown Journal on Poverty Law and Policy in 2020. “The definition of indigency seems to fluctuate depending on the statutory context.”

While this legislation will allow people the chance to appeal their eviction on the basis of nonpayment, it will not change the requirement that tenants pay ongoing rent while an appeal is pending, and it will not prevent landlords from adding a claim for additional unpaid rent to the issues decided upon by the circuit court on appeal.