Three Common Missteps Residential Landlords Make When Evicting Tenants

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Residential landlords know tenant issues are inevitable. When tenants fail to pay rent on time, cause property damage, or violate their lease agreements, the sooner you can get them out of your space, the better. However, before you jump the gun on evicting a tenant who hasn’t held up their end of a residential lease agreement, make sure to avoid these common missteps:

1) Self-Help

The judicial process is long and wrought with legal hurdles (and, ugh, attorneys!), so why not go ahead and change the locks yourself? Well, Virginia law forbids recovery of possession by refusing a tenant’s access to the property, unless the refusal is pursuant to a court order for possession. That is to say, it’s illegal without a court order.

You will need to follow legal process for evictions as set out in the Virginia Residential Landlord Tenant Act (VRLTA) from start to finish to get a clean order of possession and avoid potential liability for wrongfully evicting your tenant(s).

Note that the VRLTA will not apply to certain residential occupancy arrangements, such as occupancy by a tenant who pays no rent pursuant to a rental agreement and occupancy in a hotel/motel for 90 consecutive days or less. Check Va. Code § 55.1-1201 to confirm whether the VRLTA applies.

2) Failure to Provide Proper, Timely Notice

When you are ready to terminate your relationship with a tenant, for whatever reason, know that the VRLTA contains specific requirements for how far in advance you must provide your notice to the tenant to properly terminate the lease. The required timing and contents of your notice will vary depending on the basis for termination (for example, nonpayment of rent or violation of policy in the lease). Remember to keep copies of each notice you provide for your records and eventual submission as evidence to the court.

If you don’t provide notice in accordance with the VRLTA’s requirements, you risk your case being dismissed. If this happens, you’ll need to provide notice and then wait the specified number of days before you can re-file, losing time and money.

3) Not Providing Tenants the Virginia Statement of Tenant Rights and Responsibilities

In my experience, this is likely the most omitted and fatally defective misstep in Virginia landlords’ eviction cases. Per the VRLTA, a landlord “shall not file or maintain an action against the tenant in a court of law for any alleged lease violation until he has provided the tenant with the statement of tenant rights and responsibilities.” So, you cannot file for eviction unless you have provided your tenants with the most current version of this document.

As this provision applies to all lease violations and forecloses any eviction filing before this specific form is provided to the tenant, courts will look for it in your termination notice or otherwise require you to prove that you provided the tenant this form before granting you possession. Importantly, if the form was not provided before filing eviction paperwork, the court must dismiss your case, and you will have to start over. An easy way to combat this is to ensure you provide the Statement of Tenant Rights and Responsibilities as a part of your move-in packet.

The eviction process can be a challenge for residential landlords, and it is important to approach these situations with patience and caution to avoid time-consuming legal mistakes.

If you’re unsure about how to handle an eviction situation, reach out to a member of our Litigation Practice Group who can help.