If you are a landlord, sooner or later you may have a tenant that breaches the lease agreement and refuses to leave. When that happens, you need to evict your tenant from the property. This sounds simple enough, but the eviction process involves several steps that can take at least a couple of months or longer. The process is highly technical and even simple mistakes can cost you time and money. If you have a tenant who has breached their lease, a Northern Virginia landlord tenant lawyer can guide you through the process.
Step 1: The Termination Notice
The first step in the eviction process is to provide your tenant with notice that they have breached their lease and that you will pursue an eviction if the breach is not remedied. The type of notice you send will depend upon the nature of the breach:
Non-payment of rent. If your tenant has failed to pay rent, you can send a notice informing them that they must make payment in full within five (5) or you will terminate the lease and begin the eviction process. Note that the notice must inform the tenant of your right to accept partial payments without waiving your right to proceed. It must also inform the tenant of their right to “redeem” the property. If you fail to include the necessary language, it will jeopardize your eviction. A sample notice can be found on the website for the Virginia Department of Housing and Community Development.
Other breaches. While non-payment of rent is the most common reason for pursuing an eviction, landlords sometimes have to evict tenants for other breaches of the lease. For example, a tenant may be refusing to properly maintain the property or may be disturbing other members of the community. In those situations, you have a couple of options:
Non-remediable breaches: if the breach cannot be remedied, you can send the tenant a notice that the lease will terminate in 30 days and that you will proceed with an eviction if they do not vacate the premises.
Remediable breaches: if the breach can be resolved, you can send a “21/30” notice that gives them 21 days to resolve the breach or the lease will terminate in 30 days.
If you fail to send the appropriate notice that complies with the VRLTA, a court may refuse to grant you possession of the property when you proceed with your eviction. If you have questions about your notification obligations, a Northern Virginia landlord tenant lawyer can help.
Step 2: The Summons for Unlawful Detainer
So you have sent your notice and your tenant has failed to catch up on their rent or otherwise resolve the issue. The next step is to file an eviction lawsuit, which is called a “Summons for Unlawful Detainer” under Virginia law. You can get a copy of the Summons online in revisable PDF format. A few items of note when filling out and filing your Summons for Unlawful Detainer:
You will need to file your Summons for Unlawful Detainer in the General District Court for the city or county where your rental property is located. For example, you will need to file in Loudoun County if that is where the rental property is located, even though you live in Arlington County.
If rent will continue to come due, you want to check the box where it says “Plaintiff asks for judgment for all amounts due as of the hearing date.”
Right above the signature line, it states “All required notices have been given.” This would include both the termination notice described above as well as the Statement of Tenant’s Rights and Responsibilities.
You will need to call or visit the clerk’s office in order to schedule the court date referred to as the “return date.” The dockets are crowded and fill up quickly, but you should be able to get a return date approximately three weeks from the date you file it.
The clerk can help you complete the form, but be aware that they won’t provide you with legal advice. Call a Northern Virginia landlord tenant lawyer if you have questions.
Step 3: Go to Court
Once the Summons for Unlawful Detainer has been filed, the next thing you need to do is appear in court on the return date. If you don’t go to court on the return date, the case will be dismissed. You can refile the case, but you will have to pay the costs and filing fees again.
It is important to understand that the return date is not a trial date. Depending on the jurisdiction, the court may not be willing to hear any evidence at all. Generally speaking, here is what is mostly likely to happen on a return date:
You will be granted a default judgment because the tenant failed to appear.
You will be granted a consent judgment because the tenant appeared and admitted to your claim.
The case will be set for trial because the tenant appeared and disputed your claim.
Obtaining a default judgment requires that you file certain documents with the court such as the lease, the notices, as well as an SCRA affidavit. You can file these with an affidavit with the Summons or you set the matter for “ex parte” proof.
Ex parte proof is where the court will allow you to testify to your claim without an affidavit. Some jurisdictions (such as Prince William County) will hear ex parte proof on the same day as the return date while others will require you to set it for a later date (such as Fairfax County).
If your case is set for trial, you may want to consider retaining a landlord tenant lawyer. While I understand the reluctance to start incurring legal fees, they can identify and possibly address any potential defects in your case that may prohibit you from obtaining a judgment for possession. Even if your lawyer tells you to dismiss the case and start over, it could save your considerable time and money in the long run.
Step 4: The Eviction
No one wants to go all the way through this process to an eviction, and thankfully few cases get this far. Once you have been awarded possession, however, you have the right to proceed with the eviction once the 10-day appeal period has passed.
Unfortunately, the eviction process isn’t automatic even if you were awarded judgment for possession. If the tenant remains in the property despite having been awarded possession, you need to file a Request for Writ of Eviction. Once you complete this form, pay the required fees, and file it with the clerk’s office, it will be forwarded to the Sheriff to be served upon the tenant. The timeline for this part of the process will depend on how busy the Sheriff’s office is, but you should expect the eviction to take place approximately 30 to 45 days from the date judgment is entered if you file the Request for Writ as soon as possible.
Once the Request for Writ is filed, the Sheriff will eventually contact you to schedule the eviction date. The Sheriff will then serve the tenant with a notice of the date the eviction will take place at least 72 hours in advance. If they do not vacate the property, the Sheriff will return to the property with you (or your designated representative) to change the locks to the property.
The Eviction Process Summarized
To summarize, here are the steps landlords need to follow in order to regain possession of your rental property:
Send the appropriate notice of termination
File the Summons for Unlawful Detainer
Attend the court date or dates in order to obtain a judgment for possession of the property
File the Request for Writ of Eviction and schedule the eviction
Landlords should expect the entire process to take six to eight weeks from the time you file the Summons Detainer.
Need Help? Contact a Northern Virginia Landlord Tenant Lawyer
The eviction process is much more challenging than most landlords realize and when dealing with a non-compliant tenant, time is of the essence. At The Herndon Law Firm, we help clients get results quickly and cost-effectively. Contact us today by phone or email to schedule a free consultation to discuss your case and how we can help.
Comments