The Virginia eviction process has a number of eviction notices with differing periods of compliance or demands to vacate depending on the reason for the eviction. The laws and regulations covering multifamily residential units, single family rentals if the owner owns more than 4 single family residences or condominiums and most apartments are included in the Virginia Residential Landlord and Tenant Act.
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No Unlawful Ouster
Under no circumstances can a residential landlord forcibly remove a tenant without a court order and after having followed each step of the Virginia eviction process. Self-eviction measures include interrupting essential services like heat, water and electricity or by denying the tenant access to the property by padlocking the doors and windows. Threatening the tenant is also unlawful.
If there is unlawful eviction, a tenant may recover the value of any actual damages from the landlord, recover possession of the premises or terminate the rental agreement.
Virginia 5-Day Notice (Nonpayment of Rent)
In all eviction cases, law states that a landlord must serve a written Virginia eviction notice. For cases of delinquent rent, the landlord needs to serve a 5-day “Pay or Quit” notice. The notice must advise the tenant that he or she has 5 days to pay the rent due by cash, certified or cashier’s check or the rental agreement will be cancelled and the landlord will proceed to obtain possession by court order.
If the landlord wants to collect the rent owed as well as attorney’s fees as part of the unlawful detainer action to be filed, he or she must specify that in the written notice. The landlord can include this provision in the written lease so that the tenant is automatically put on notice.
Acceptance of Rent with Reservation
In some cases, the landlord may state in a notice separate from the 5-day notice that he or she will accept full payment of the rent within 5 days but reserves the right to continue with the eviction. There may be a matter that needs to be resolved in court or some other violation of the lease that needs to be remedied.
Right of Redemption
A tenant may retain possession of the property if he or she pays the full rent owed along with court costs, late charges and attorney’s fees at any time before the eviction hearing so long as the landlord has not provided a separate written acceptance of the rent with reservation with the 5-Day Notice. A tenant may exercise this right only once in a 12-month period.
For a breach of the rental agreement that endangers the safety and health of others, the landlord must serve a 30-day Virginia eviction notice. This advises the tenant:
- That he or she has 21-days to cure the breach, or
- Vacate the premises, or
- The lease will terminate at the end of the 30-days and the landlord will bring an eviction action in court
Examples of these types of lease violations include excessive noise, having unauthorized pets or persons living on the property or operating a business on the premises,
For lease violations that are not subject to being cured or are irremediable, the landlord need only serve a 30-day notice advising that the lease will terminate in 30-days.
Month-to-month tenancies only require a 30-day notice.
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Immediate Notice of Termination
For criminal acts or those that violate the lease in such as way as to seriously endanger the health and safety of others, the landlord may serve an Immediate Notice of Termination. Examples of such acts include selling, manufacturing or using illegal narcotics, threatening other tenants with a firearm or committing other acts of criminal violence.
Action in Unlawful Detainer in Virginia
In cases where the tenant refuses to comply with the notice, the landlord needs to file an action in Unlawful Detainer in the General District Court having jurisdiction where the property is located.
The court clerk will issue a Summons along with the Unlawful Detainer action to be served by the Sheriff’s Office. It may be served personally on the tenant or by posting it on the property along with mailing. The Summons will contain the date, time and location of the initial hearing, which is generally 10-20 days after the filing date. The Summons must also be mailed to the tenant by the landlord and a proof of mailing filed with the court.
On the date set forth in the Summons, the parties must appear. If the tenant wishes to contest the eviction, the judge will schedule a trial date. Otherwise, the landlord will be granted judgment and a Writ of Possession may be issued the same day.
Virginia Eviction Trial
If the eviction is contested, the landlord has the burden of proving the nonpayment of rent or other violation of the lease that justifies eviction. Copies of the lease, eviction notices, correspondence, proof of service, rental receipts, police reports, reports of other tenant complaints, photographs and witness testimony should be provided. The tenant also has an opportunity to rebut any of the allegations presented and to prove any counterclaims filed by the tenant.
Tenant’s Eviction Defenses in Virginia
A tenant in the Virginia eviction process may assert any of the following defenses:
- The breach of a lease provision is not substantial enough to warrant an eviction.
- The lease provision allegedly violated is unreasonable.
- The allegations are false.
- There was improper service.
- The notice was improper.
- The landlord waived eviction by accepting any part of the rent without a written reservation.
- The landlord failed to remedy a condition hazardous to the tenant’s safety or health or which is in violation of the housing code after having been an opportunity to repair it.
- The eviction is in retaliation for the tenant having filed a complaint regarding the condition of the property to the landlord or to a government agency or for joining a tenant’s rights organization.
- The eviction violates the Fair Housing Act, which prohibits evicting a tenant based upon the individual’s religion, race, sex, national origin, creed, age, family status, source of income or disability.
Get a Writ of Possession
Should the landlord be successful, he or she must request a Writ of Possession, which may be issued the same day as the judgment from the court. The Writ is given to the Sheriff’s Office to be served on the tenant within 30-days who has 72-hours to vacate the property once served. At least 10-days must pass to allow the tenant time to file an appeal.
The Sheriff will schedule an eviction date with the landlord who must appear to remove the tenant’s personal belongings and to change the locks under supervision of a Deputy Sheriff.
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