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FAQ - Evict a Tenant
The Eviction Process in Virginia: A Guide for Landlords and Tenants
by Steven Krieger
Link provided by Steven Krieger Law
January 17, 2014
Regardless of the reason for eviction, landlords and tenants both have rights and the eviction process is controlled by statute, so the steps must be followed properly or the court may not grant your request. In other words, a landlord cannot simply change the locks, turn off the utilities, remove tenant’s belongings, or physically remove tenant from the property.
Step 1: Provide Notice to Tenant(s)
There are two reasons to evict a tenant: 1) failure to pay rent; and/or 2) failure to comply with the obligations under the lease.
If the tenant has not paid rent, landlord must give the tenant a “Pay or Quit” notice (sometimes called a five day notice). This notice gives the tenant five days to pay the rent or vacate the property from the date tenant was served with notice. See Va. Code § 55-225. If tenant pays the overdue rent, tenant has the right to remain in the property.
If the tenant is not following a non-monetary lease term, the landlord must provide tenant with a “Notice to Quit” (sometimes called a 30 day letter). This notice gives the tenant twenty-one days to correct the issue or vacate the property thirty days from the date tenant was served with notice. SeeVa. Code § 55-248.31. If tenant corrects the issue in time, the tenant has the right to remain in the property.
Step 2: Summons for Unlawful Detainer
Assuming the tenant does not pay the overdue rent and/or correct the non-monetary issue, the next step requires the landlord to file a summons for unlawful detainer. After providing proof to the court that proper notice was given, the court will issue a summons to the tenant with a “first return date.” This is similar to an initial hearing or appearance.
At this hearing, the judge will ask the tenant if the tenant admits or denies the allegations in the summons. If the tenant denies the allegations, a trial date will be set. The judge may instruct the landlord to provide a Bill of Particulars to explain why the landlord believes they are entitled to possession and judgment. Additionally, based on the Bill of Particulars, the judge may instruct the tenant to provide a Grounds of Defense to explain why the landlord is incorrect.
If the tenant admits the allegations or if the tenant fails to appear, the landlord may ask for an immediate Writ of Possession and a judgment for unpaid rent. See Va. Code § 8.01-126. If you received a summons, whether for a landlord and tenant matter or another matter, do not ignore it!
Step 3: Trial
If tenant contests the allegations in the summons, a trial is held to determine whether the landlord is legally allowed to evict the tenant. If the court rules that the landlord has a proper basis to evict the tenant, the tenant has ten days to appeal this ruling. To appeal, the tenant must pay an appeal bond to the court at filing, which often includes all the money owed to the landlord plus up to one year’s future rent (though, often it is a few months).
Until a judgment is entered, the tenant can pay the landlord all unpaid rent, late fees, court costs, and attorney’s fees that are due and remain in the property. The tenant can only exercise this right once every twelve months per landlord.
Step 4: Writ of Possession for Unlawful Detainer
If tenant does not contest the summons or landlord wins the trial (or appeal), the landlord may file a Request for Writ of Possession for Unlawful Detainer Proceedings to begin the actual eviction process. See Va. Code § 8.01-470. This writ must be filed within one year of the judgment. See Va. Code § 8.01-471. The court sends this request to the Sheriff’s Office and the Sheriff’s Office should execute the writ in fifteen days, but has thirty days from when the court signed the writ to execute the eviction. Generally, the Sheriff’s Office will contact the landlord with the scheduled date of eviction and the tenant is given at least 72 hours notice.
Until the actual eviction begins, the landlord may continue accepting rent “with reservation” if proper notice is given to the tenant without losing the ability to evict the tenant.
Step 5: Eviction
Although there are two types of evictions, most landlords use a “24-Hour Lock Change” eviction because it’s less expensive than a “Full Eviction.” In a 24-Hour Lock Change Eviction, the landlord must provide a locksmith to change all the exterior locks during the scheduled eviction. Within 24 hours after the eviction, the landlord is given possession of the property. For the next 24 hours, the property is essentially treated as a storage facility and the landlord must give tenant reasonable access to remove personal property, but tenant may not remain in the property overnight. After this 24-hour period, the landlord may sell or destroy any of tenant’s remaining personal property. See Va. Code § 55-237.1. Neither the landlord nor Sheriff actually removes tenant’s property. If tenant remains in the property, the tenant is trespassing.
In a “Full Eviction,” the all of tenant’s property is placed on the nearest public right of way. The landlord must provide a locksmith (like in a 24-Hour Lock Change eviction) and enough adults to remove the property. The Sheriff’s Office will be present and is responsible for protecting the interests of the landlord and the tenant and may require the landlord to provide a moving truck, boxes, or other equipment to effectuate the removal of tenant’s personal property.