Virginia Real Estate Law: Evictions in a Pendemic

I have been receiving a lot of calls from landlords and tenants regarding evictions during the coronavirus pandemic. Different and changing opinions from the state government and the federal government have made the answer to this question difficult. As of June 14, 2020, there is a patchwork of rules which means, at least in some places, eviction cases can commence. In some local courts, they cannot. Federal law has also prevented certain types of evictions from going through.

So what are those rules, and what do you need to know about evictions in a pandemic?

Virginia Rules on Evictions in a Pandemic

On June 8, 2020, the Supreme Court of Virginia declared that there was still an on-going judicial emergency. The emergency order stated that all eviction cases were ordered to stop until June 28, 2020. However, some local courts have interpreted that order differently. For example, Fairfax General District Court has permitted the filing of eviction matters during this time period. As a result, the sheriff’s office had to issue a statement that they would not be proceeding with forceful evictions until the June 28th deadline.

Most other localities have decided to wait until June 28, 2020 before they will permit evictions to resume. There is a chance that the Supreme Court of Virginia or the governor extends this time period, but for now evictions are brought to a complete halt, regardless of the type of tenant a landlord has.

Federal Rules on Evictions During a Pandemic

There are several different rules from the federal level. The Department of Housing and Urban Development had initially created a sixty day ban on evictions of tenants in FHA-insured housing on March 18, 2020. 

Effective March 27, 2020, the CARES act created a one hundred and twenty day ban on evictions for tenants of certain “covered dwellings.” Therefore, some landlords are restricted from evicting their tenant until July 27, 2020. As with the state level, the federal government could extend that window depending on how things develop.

In order to be considered a covered dwelling, the landlord or tenant must be receiving certain types of federal aid. If you are a tenant facing an eviction or a landlord considering an eviction, and you are receiving federal aid of some kind, there may be a federal ban on the eviction.

Why You Need a Lawyer

All of these different regulations have made eviction proceedings extremely difficult to file and pursue. There are also penalties for the unwary if they file an eviction improperly during these bans. That is why if you are facing an eviction or are a landlord considering an eviction, you should talk to a lawyer to understand your rights and risks.

Virginia Landlord Disputes: What Happens at Court?

If you have given the appropriate notice to your tenant and have filed the appropriate paperwork with the court, the next step in the eviction process involves a series of court dates. It is important to know what is required of you at these court dates in Virginia. In Virginia, there are three major types of court dates; a) the first return, b) hearings on motions and c) the trial date.

So what are these three different types of court dates?

The First Return Date

The first date you are given by the court is known as the first return date. This date is to make sure that you have filed all the appropriate paperwork to begin the case. This court date is also the time in which the court will determine whether or not your tenant has received service of process of the paperwork you have filed. Before the court can do anything, your tenant is entitled to receive a copy of the paperwork.

If your tenant has received paperwork but fails to show, you may be entitled to a “default judgment.” This means that, because they did not show up, you will not have to go through the trial process. However, if your tenant does show up, they have the right to contest the charges.

Many judges in Virginia will require the tenant to answer whether they owe any rent or not. If rent is owed, you may be entitled to a “writ of possession,” which grants you your property back. However, that is not the end of your case. Even if you are given possession, you must have a trial to determine how much money you are entitled to.

If you own an LLC or a trust, you do not need an attorney at this first return date. You do, however, need an attorney for any subsequent hearings such as a trial.

Motion Day

If the tenant hires an attorney, their attorney may file any number of different documents against your eviction proceedings. Their attorney may even file a counterclaim, or a claim for money against you. If the other side hires an attorney and files any paperwork, it is imperative that you immediately seek out an attorney. Failure to do so may result in you owing money to the tenant!

Trial Day

Eventually, if the matter is not settled, you will be given a trial date. On the trial date, you are required to prove to the court the specific grounds for which the eviction is sought (if not for failure to pay rent) and the amount of damage the tenant has done to the property.

Judges are looking for documentation to prove how much money you will need to spend to get your property back in working order and how much rent is owed. Therefore, you will need to bring with you to the trial date documents including, but not limited to, quotes for repairs, accountings of late charges and rent and photographs of the damages.

Why You Need a Lawyer

Navigating these different stages of the court process can be very confusing. If the other side hires a lawyer, their lawyer can do any number of things to make you lose your case. For example, failure to follow certain rules or to file certain documents automatically makes you lose. As stated before, if you own an LLC or a Trust you may be required to have an attorney no matter what. Therefore, you should seek out an attorney before even sending the initial notice to your tenant. 

Virginia Landlord Disputes: Documents to File With the Court

So you have gone through the first step and given your tenant the appropriate type of notice to begin the eviction process. What happens next? After the timeline in the notice has passed, and if your tenant has not vacated the property or come current on the rent, the next step is to seek court help in evicting the tenant. In Virginia, an eviction is accomplished by filing an Unlawful Detainer in the appropriate General District Court.

So what is an unlawful detainer, and what are some things you need to be aware of before it is filed?

What is an Unlawful Detainer?

Any lawsuit in Virginia starts with documentation called a “pleading.” A pleading is a document which tells the court why you are asking for a legal decision and what facts support your request for legal relief. Eviction cases in Virginia are handled through a pleading known as an unlawful detainer.

An unlawful detainer tells the court a number of different things. The unlawful detainer needs to a) identify the property where the tenant is residing, b) identify the owner of the property as the plaintiff, c) identify the tenants of the property as the defendants and d) identify any damages that you may have suffered. Damages can include, but are not limited to, past due rent and destruction of your rental property.

Is an Unlawful Detainer the Only Required Document?

No, there are several other documents that are required to be filed with the court. Failure to file these documents may cause your case to be dismissed. These documents include, but are not limited to, a “soldiers and sailors affidavit,” which tells the court whether your tenants are in the armed forces, a copy of the lease, and a copy of the notice.

Why You Need A Lawyer

If you do not file the appropriate documentation with the court, or if you do not properly fill your the documentation, your case will be dismissed. If your case is dismissed, then your tenants may be able to stay in the property for longer than you had envisioned. This can lead to lost rent and, in some cases, destruction of your property. If you are facing eviction proceedings, hire a lawyer to make sure the proper steps are followed.

Virginia Landlord Disputes: Eviction Notices

Are you a landlord with a trouble tenant? If you are, there are some laws you need to be aware of if you want to begin the process of removing the tenant from your property. The process for removing a tenant from your property is known as eviction. There are several steps that you must take in order to do a lawful eviction, and several things you should not do during that process. Failure to properly follow the eviction process may result in legal issues such as forfeiture of the security deposit, delayed evictions, or even damages for the tenant.

So what is the first step of the process, and what are some basics you need to know?

How to Give Notice

The first major part of the eviction process is giving the appropriate type of notice to your tenant. There are several different types of tenants, and each type of tenant is entitled to a different type of notice. In order to have proper notice, you need to be able to prove to the court that the tenant received the notice that you sent. This is often accomplished by having your local sheriff serve the notice, or by posting the notice on the front door. Either way, make sure you can prove that your tenant received notice, or the notice clock may not start.

Types of Notice

As previously discussed, there are several types of notices that you may need to consider depending on your unique case. The three major types of notices are the thirty-day notice, the five-day notice, and the 21-30 day notice. These types of notices are given in different scenarios. For example, failure to pay rent on a year-to-year lease is often accompanied by a five-day notice. In contrast, eviction proceedings for a tenant failing to keep the property in working condition may require a thirty-day or 21-30 day notice depending on the nature of the damage and the terms of your lease agreement.

What Happens if You Use the Wrong Notice?

Using the wrong notice can have disastrous effects on your eviction efforts. A court cannot grant you an eviction if you did not give proper notice to your tenant. The reason for the notice requirement is to allow the tenant the opportunity to cure the breach of the lease within the amount of time provided. Tenants have a right to cure certain types of breaches of the lease agreement. If you do not give the appropriate notice, then the tenant may be entitled to return of the security deposit.

Why You Need a Lawyer.

A lawyer is important to have during the eviction process because you could become personally liable for not giving the appropriate type of notice. Failure to give the appropriate notice may also result in your tenant getting extra time in your property, resulting in loss of rental income. Therefore, if you are facing a trouble tenant, make sure you hire an attorney to walk you through the eviction process.

Virginia Landlord Disputes: Three Big Legal Changes

Are you interested in becoming a landlord or are you a landlord trying to stay updated on all the new laws in Virginia? There are several new laws that have been adopted by Virginia recently that you need to be aware of. These new laws may impact the terms of any leases you are currently using. As such, you may want to consider contacting a lawyer to help update your leases.

So what are these new laws, and what dangers to they represent?

Virginia Residential Landlord Tenant Act

Opt Out

Landlords that own less than five (5) investment properties used to be covered by a less strict version of the Virginia Residential Landlord Tenant Act. However, new law in Virginia requires that these landlords specifically opt-out of the provisions of the Virginia Residential Landlord Tenant Act. Failure to include specific opt-out language may result in your property being covered by the stricter rules that govern larger landlords.

This could result in significantly more overhead when it comes to maintaining your properties. Landlords that are covered by the Virginia Residential Landlord Tenant Act have more duties to their tenants. Some of those duties include, but are not limited to, maintaining the property in better working order.

Eviction Waiting Requirements

Virginia has also modified the length of time it takes to get possession of your rental property from a non-paying tenant. Landlords used to be able to request “immediate possession.” By doing so, the court could allow a landlord to immediately take possession of the property for repairs.

The new law limits a landlord’s ability to take immediate possession. The new law requires an automatic ten (10) day waiting period before you can perform a lock-out. It is important to know about this change as it may impact your timeline for re-letting the property. This language may also impact any agreements you have with your prospective tenants.

Foreclosure Dangers

Another recent change to Virginia Landlord/Tenant law is that leases now automatically terminate upon a foreclosure. Therefore, if you own a rental property and are foreclosed upon, your tenant may be subject to a quick eviction within a short period of time. This can have serious economic hardships for the tenant. Therefore, it may be a good idea to seek legal advice on how to put language in your lease to protect yourself from economic harm resulting from a foreclosure.

Why you need a lawyer

If you invest in real estate it is a good idea to have a lawyer review your contracts on an annual basis. Laws are constantly changing, and a seemingly mundane change in the law can have serious impacts on your ability to make a living. Make sure you regularly consult your lawyer on issues related to your properties.