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How do I evict a tenant in Virginia?

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Answered by: Faisal Moghul

Located in Fairfax, VAMoghul Law PLLC

Fairfax, VA
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There is a very specific process that landlords must follow to evict tenants who have breached their leasing contracts in Virginia. As a landlord, you must follow these steps very carefully to not only protect your property rights, but the legal rights of the tenant as well. 

Whether a tenant fails to pay rent or breaches your contract through other means (such as damaging your property), you need to provide notice prior to evicting. This notice is different depending on the type of breach to occur. You then have the ability to take the eviction to trial if the tenant refuses to leave, and recover any costs you have sustained during the eviction process. This process starts by filing an unlawful detainer and attending an administrative hearing to state your case. 

Below is more information to keep in mind regarding the eviction process in Virginia – from the specific laws in play to the process for going to trial. 

1. The Common Law And The Virginia Residential Landlord And Tenant Act 

Unlike other states, Virginia has two entirely different sets of laws that govern landlord-tenant relationships: 

  • Virginia common law, Virginia Code § 55-225 et seq.
  • The Virginia Residential Landlord and Tenant Act (“VRLTA”), Virginia Code § 55-248.2 et seq 

The general rule in this regard is that the VRLTA applies to the “occupancy in all single-family and multifamily residential dwelling units and multifamily dwelling unit(s),” unless the parties opt out of the VRLTA, or if certain exemptions detailed under the law are met. 

The legal regime that the parties adopt to govern their landlord-tenant relationship can have significant consequences related to the eviction process. This analysis also does not apply to commercial landlord-tenant relationships, as those relationships are entirely a product of the lease negotiated between the landlord and the commercial tenant. Moreover, the information provided herein is subject to change depending on the specific provisions in any residential lease. 

2. Grounds For Evicting A Tenant

Regardless of which statutory regime governs your landlord-tenant relationship, there are two broad categories that generally provide a legal basis to evict a tenant. 

  • Nonpayment of rent. This is one of the most common grounds for eviction and occurs when the tenant materially breaches the contract by failing to pay rent. The landlord can initiate eviction by issuing a five-day pay or quit notice. Note that this ground for eviction is typically subject to the tenant’s right of redemption, which means that the tenant may stop the eviction by paying the landlord full past due amount, including any court costs and attorney’s fees, on or before the first unlawful detainer return date. This right of redemption can only be exercised once in any given calendar year.
  • Nonrent-related breach of the lease. These breaches concern scenarios where the tenant has breached the lease for some nonrent-related reason like keeping a pet on the premises in violation of the lease or playing loud music every night that causes a nuisance. These breaches can be classified into two general categories: (a) remedial or curable breaches and (b) nonremedial breaches. The former concerns circumstances where the tenant’s breach of the lease is of a type that can be remedied, such as keeping a pet on the premises that can be removed. Under VRLTA, such a breach requires the landlord to issue a 21/30-day notice to cure to the tenant. This notice specifies the act or omission constituting the breach and provides 21 days for the tenant to cure such breach, failing which the lease will terminate in 30 days if the breach is not cured. The latter concerns cases where the breach of the lease cannot be remedied, such as if the tenant has intentionally damaged the premises or is consuming illegal drugs or narcotics on the premises. The landlord can then terminate the lease by giving a 30-day notice of termination under VRLTA. 

The double damages statute for intentional acts of destruction by the tenant. Virginia Code 55-214 allows a landlord to recover double damages in cases where the tenant has engaged in “wanton” acts of waste on the premises. Oftentimes, this is a useful tool for landlord’s whose property has been maliciously and intentionally destroyed by the tenant. 

3. Filing The Unlawful Detainer 

Once the required formalities related to notice to the tenants are satisfied, the next step in the eviction process is to file an unlawful detainer (“UD”). The clerk of the court will note a “return date” on the UD, which is the initial date when the parties must attend in court with respect to the eviction. Note that the return date is not the trial date. It is simply an administrative proceeding where the court determines if there is any dispute, and if so, when to set the matter for trial and whether the parties wish to file any pleadings. Most return dates are typically scheduled within three to four weeks from the date of filing. 

4. The Pleadings – Bill Of Particulars And Grounds Of Defense 

If the eviction is a contested matter, then the court will set a trial date. If either party wishes for the other side to state the factual and legal basis for their eviction and/or any defenses thereto, then either side may move for pleadings. The judge will order the landlord to file a document known as a bill of particulars, and the tenant will respond by filing a grounds of defense, which details the tenant’s legal defenses related to the eviction. 

5. Trial Date 

If the matter is set for trial, then the parties will have to appear in court to litigate the case on the scheduled trial date. If the landlord prevails, then the landlord may or may not be able to recover his attorney’s fees depending on the terms of the lease. 

6. 10-Day Statutory Appeal Period Under Virginia Code § 8.01-129   

If the court gives a judgment in favor of the landlord, then the judge will set the appeal bond amount. The tenant then has a 10-day statutory appeal time frame within which to file for appeal to the circuit court and post the required bond amount. If the tenant appeals, then he gets a proverbial second bite at the appeal by having another trial in circuit court de novo. 

7. Writ Of Possession   

If the tenant does not appeal the judgment, then the landlord may file the writ of possession with the court. The clerk will process the writ and forward it to the sheriff’s department, which will then execute the writ by posting a 72-hour notice to vacate on the property. This can typically take between one and four weeks. 

8. Do Not Engage In Self-Help 

Self-help in Virginia is only available in the commercial context. It is imperative that a residential landlord not engage in any self-help prior to move out or lock out date scheduled by the sheriff. 

Virginia Code 55-225.1 states: “A landlord may not recover or take possession of a residential dwelling unit by (i) willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required to be supplied by the landlord under a rental agreement or (ii) refusal to permit the tenant access to such unit unless such refusal is pursuant to an unlawful detainer action from a court of competent jurisdiction and the execution of a writ of possession issued pursuant thereto.” 

If a landlord violates this provision, then he may be liable for damages to the tenant. This is why you should always be hyperaware of your rights, the rights of the tenant and the correct legal process for eviction in the state of Virginia.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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