Virginia Residential Evictions 101: When Can I Change the Locks?
When a tenant breaches a lease, the big question on a landlord's mind is "When can I change the locks?" The short answer: once the tenant vacates-sooner and you risk being sued or sanctioned. While that's the short answer, how "short" that is varies from case to case. Here's what you need to know.
Notice of BreachThe first step to a residential eviction is to notify the tenant he or she is in breach of lease and give the statutory period to cure. If the breach is nonpayment of rent, the notice period is at least 5 days (this is often called a "Pay or Quit" notice). For remediable breaches, the tenant must be given 21 days to remedy the breach in the a 30 days' notice. For breaches that are not remediable, or a second notice for a remediable breach, the notice period is 30 days. Some leases require a longer notice period, in which case, those time periods must be followed.
The notice must be written, indicate the date served on the tenant, and specify the rent owed or other breach. The notice may contain other provisions to protect your rights.
If the tenant vacates after giving notice, you may change the locks. If not, you must file an unlawful detainer.
Rent with Reservation NoticeOnce the process has started, a landlord must send the tenant a rent with reservation notice within five days of receipt of payment from or on behalf of the tenant. This notice preserves a landlord's right to evict the tenant. Failure to provide the notice may keep a landlord from receiving a judgment for possession and filing the writ of possession.
Filing the Unlawful DetainerIf the notice period has passed and the tenant owes money, the next step is filing a lawsuit, which is usually done in the General District Court. The two most common lawsuits are unlawful detainers and warrants in debt. An unlawful detainer is an action for possession of real property and rent. A warrant in debt is a suit for money only. In other words: you can only evict a tenant if you file an unlawful detainer. The first hearing on either an unlawful detainer or warrant in debt is usually 3 weeks after it is filed, and may be longer. You should note a warrant in debt for over $25,000 must be filed in Circuit Court. Unlawful detainers are exempt from this cap.
Right of RedemptionSometimes a tenant pays all the debt owed after an unlawful detainer is filed but before judgment is entered. In this case, the landlord must recognize the tenant's right of redemption and dismiss the case. The right of redemption may only be used one time per 12 months. In other words, if the landlord files an unlawful detainer twice in 12 months, the landlord may receive a judgment for possession even if the tenant pays in full.
Possession JudgmentsA judgment for possession is not a court order for the tenant to vacate. It is a determination the landlord is entitled to possession back, which may be enforced by a writ of possession.
There are two types of possession judgments: 10-day and immediate. If a tenant appears in court, the judge will grant 10-day possession, and the landlord must wait 10-days before filing for a writ of possession. If the tenant does not appear, the judge can grant immediate possession, allowing the landlord to immediately walk out of the courtroom and into the clerk's office to file a request for a writ of possession.
A possession judgment may be granted if a judge finds that some amount of rent is owed, even if the tenant disputes how much. Put another way, the judge may "split the case" and grant a judgment for possession at the first court hearing and schedule a trial for damages at a later date.
A landlord has 1 year to enforce a judgment for possession.
Writ of PossessionOnce a landlord has a possession judgment, he or she can request the court issue a writ of possession. This is the process in which the court notifies the sheriff to evict the tenant. The sheriff must give the tenant 3 days' notice and has up to 30 days to perform the eviction. Most sheriffs will schedule the eviction directly with the landlord, such that the landlord can finally arrange to have the locks changed.
AbandonmentMany tenants will vacate before the eviction. A landlord can change the locks and secure the property once the tenant has vacated. If a landlord is unsure if the tenant has actually left, the landlord may give a 7-day notice. Many courts will consider the tenant's act of returning the keys to be an act of returning possession of the premises to the landlord.