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The Law with John Kent Kidwell
Question: I am the owner and landlord of a single-family home in Fairfax. I entered into a written lease agreement with the tenants, but the tenants have not paid their rent for the last three months. What procedures do I follow to evict the tenants? Also, I used a form lease agreement that I downloaded off the Internet, does that matter?
-- Jeff, Fairfax
First, I feel it is prudent to note that there are a number of facts not given in the above question that I would want to know before counseling anyone on how to proceed to evict a tenant, and I recommend that landlords seek the advice of an attorney at law before moving to evict their tenants.
Certain facts, such as how many properties the landlord currently leases are important to know, as those facts will determine which law will apply in the matter. For instance, in cases where the tenant occupies a single-family residence where the owner(s) own in their own name no more than 10 single-family residences subject to a rental agreement; or in the case of condominium units or single-family residences in any city or in any county having either the urban county executive form or county manager plan of government, no more than four, the terms of the lease will be subject to the Virginia Residential Landlord and Tenant Act, Virginia Code 55-248.2 - 55-248.40.
Further, I would always want to review the lease agreement, if any, as the lease, which is a contract between the landlord and tenant, can and often does waive and/or amend certain protective provisions within the Virginia Code. The inclusion or absence of certain provisions in the lease agreement also will let me know certain things such as whether the landlord can sue for attorney’s fees, late charges and the costs of suit.
For purposes of discussion, however, I will assume that the landlord rents only one single-family residence in Virginia. As such, the provisions of the Virginia Residential Landlord and Tenant Act would not apply; the provisions of the Virginia Landlord and Tenant Act, Virginia Code 55-217 - 55-248, would instead be applicable.
Therefore, assuming the lease agreement does not stipulate otherwise, the landlord will have to take the following steps to evict the unruly tenant: First, the landlord must serve a five-day pay-or-quit notice notifying the tenant in writing of the default in the payment of rent. The five-day pay-or-quit notice must further notify the tenant that should the default continue for five days after notice the landlord will require possession of the premises or the payment of rent and the tenant will forfeit his or her right to possession of the property.
In the event that the tenant fails to pay the amounts due within the five-day period, the landlord may file an unlawful detainer action in the county in which the property is located. Whether the case is filed in the general district court or circuit court of the county depends upon the amount of damages claimed and sometimes whether it is a residential or commercial lease. As mentioned above, the amount for which the landlord can pray for in damages depends upon the provisions of the lease agreement.
The unlawful detainer summons must be served upon the tenant, summoning them to appear at a particular hearing date and time to answer the summons. This is known as the first return. In the General District Court of Fairfax County the first return must be set for at least 30 days after the filing of the unlawful detainer and is always set for 9:30 a.m. Friday.
The tenant often will not appear for the first return to admit or deny the assertions made in the unlawful detainer, in which case a default judgment may be granted for the amount prayed for in the unlawful detainer and for possession of the property. If, however, the tenant appears for the first return and denies the assertions made in the unlawful detainer, a trial will be set and pleadings may be ordered.
In an effort to keep this article short and to the point, I have glossed over much of the above and so I caution readers that there are many factors I did not touch upon. For instance, the process of evicting a tenant does not end with simply obtaining an order of possession; after the appeals period, a writ of possession must be handed down by the clerk of the court for the sheriff to execute. Further, the landlord must take additional steps to collect on the judgment, including conducting debtor’s interrogatories and garnishing the tenant’s wages.
In regard to using a lease agreement downloaded from the Internet: As a general rule, I would always be wary of downloading any legal form off the Internet or purchasing them from a retail establishment. These “quick” forms are often insufficient for the purposes they are intended. More often than not, the forms cover the general concepts but leave out very important details that should be explicitly covered.
Landlords, in particular, should be wary of using form leases downloaded off the Internet. Landlords take a very large risk when leasing their property, in essence subjecting their real estate to relatively unknown occupants. They should do everything they can to protect their investment, and the easiest way to do that is to use a lease agreement that explicitly covers details a downloadable form most probably will not. Details such as whether the prevailing party in a suit to enforce the terms of the lease will or will not be entitled to reasonable attorney’s fees and court costs; provisions providing for the payment of late fees should rent not be paid in a timely manner; provisions explicitly delineating notice requirements and subletting restrictions; and articles covering holdover scenarios; and much, much more.
John Kent Kidwell lives in Herndon and is an attorney at the law firm of Kidwell, Kent and Curran in Fairfax City. Readers may write to him at Woodson Square, 9695 Main St., Fairfax, VA 22031, e-mail him at jkidwell@kidwellkent.com, or call 703-764-0600.
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