Written by attorney Robert C. T. Reed

The Eviction Process in Virginia

If you are a landlord and your tenant breaches the terms of your lease, you may want to evict that tenant right away. However, in Virginia, you cannot use self-help to evict your tenant. You cannot change the locks or stop providing services like heat and water in order to remove your tenant. You must use the court system. There are procedures that you must follow and, because an eviction is an attempt to remove a tenant of their home, courts will strictly construe those procedures.

The first thing you should do when a tenant breaches his lease is notify the tenant in writing. If your concern is the non-payment of rent then you must give the tenant a five day notice to pay or quit once the grace period for late payment is over. Depending on your lease and the governing law, you may have to provide notice to cure a non-rent related breach of the lease. This notice that the tenant violated the lease would allow the tenant 21 days to resolve the problem or suffer a termination of the lease in 30 days. Depending on your lease and governing law, if you have already given the tenant notice to cure a breach in the past and the tenant repeats the same violation, you may simply give a 30 day notice of termination specifying the current breach and making reference to the prior breach.

Notice may be given in writing personally to the tenant, by giving it to a family member residing in the tenant's home who is over 16, or by posting a copy on the front door of the tenant's last known address (which may be the leased premises), in which case you must also send it certified mail. You can do it yourself or have the local sheriff serve it, so long as you have a record of it. Prepare a certificate of service stating clearly that you gave the tenant notice and include the date, type of service effected, and your signature.

Once the notice period is over you may initiate a legal action to recover possession, claims for rent, and claims for any actual damages such as rent that would have been owed had the tenancy continued (though, you do have a duty to try to find a new tenant to mitigate these damages). You may also recover the cost of service of process on the tenant and depending on your lease and governing law, you may make a claim for reasonable attorney's fees.

The action you will file is called an unlawful detainer. Typically you will file it in the General District Court of the jurisdiction where the tenancy exists, however if it is a residential lease and the rent or damages due is for more than $15,000 you may look into splitting the action so that those claims for damages above $15,000 are heard in Circuit Court. You must file a Summons for Unlawful Detainer (Form DC-421 of the Virginia General District Court Forms) along with an affidavit stating the basis for your claim. You should include in your affidavit that you are the owner, the name of the tenant, the address of the property, that you have a lease with the tenant, the term of the lease, and the facts relating to the breach. You should also include a statement that to your knowledge the tenant is or is not a member of the military in order to comply with the Federal Servicemembers Civil Relief Act. Be sure to sign the affidavit under oath in the presence of a notary or the court clerk. The summons must be served on the tenant at his last place of residence much as I described above for providing notice to quit.

There will be an initial hearing. If the tenant fails to appear you will be granted possession and a judgment by default. If the tenant challenges the suit, then a trial date will be set and the court may order that the parties present more specific grounds for their claims. If the court finds that the tenant has breached the lease or failed to pay rent and that the notice and service requirements were effectuated properly, then the court should grant possession and a judgment for damages. The "writ of possession" (grant of authority to claim possession) will not be issued until the 10 day appeal period is over unless you requested immediate possession for failure to pay rent or a non-remedial breach of the lease.

The writ of possession will be issued to the sheriff, which will give him no later than 30 days, but less than 15 days if practicable, to take possession for you. Before the sheriff does, he will serve the tenant with 72 hours notice that the he intends to execute his authority to secure possession. The notice will include the date and time of this execution and will notify the tenant that he has 24 hours after being removed from the property to collect his things. The sheriff will remove the tenants and any unauthorized hangers on and he will put all the tenants belongings on the curb. If the tenant fails to collect the belongings after 24 hours they are considered abandoned and you may do with them what you wish.

As you can see, this process is not immediate and can drag on for more than a month. Courts have tried to streamline it as much as possible, but do not want to unduly interfere with the rights of tenants to lawfully possess leased property. This explanation is merely a brief overview of the process and should not be used as a template for completing an eviction action. I encourage you to seek legal representation as either a landlord or tenant so that you are best able to take advantage of your rights under the laws governing your lease.

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