As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link. As always, legal principles discussed in this post are applicable only to the Commonwealth of Virginia.
[UPDATE: Some information contained in this blog post is no longer accurate due to subsequent changes in the law. Please see my changes in the law blog post for 2019 for more information.]
Introduction
I cannot count the number of times I am called upon for a consultation or hear about a case in which the landlord or the tenant has committed some very egregious violations of the lease. I'm nodding along, interested in all the terrible things the other party has done, and then I get to the part I am afraid of. If it's a landlord, I hear "so I kicked them out and changed the locks." If it's a tenant, I hear "so I'm withholding rent until they fix it." That's when a potentially good case goes bad.
What I've referred to above is what we in the landlord/tenant world call "self-help." Self-help is when, instead of going through the courts, the aggrieved party simply takes matters into his or her own hands. It's faster, cheaper and easier than going through the courts, so it's no wonder that it's so appealing. And it works great - if the other party has no idea what their rights are, what the law is, and what remedies they may have available to them. If they do, though, then you've gone from being on the right side of the law to being on the wrong side, and it can cost you, big time.
This blog post will attempt to cover a little bit about the bad things that can happen to you if you try to "self-help," the one major exception to that rule, and a brief discussion of the correct process.
VRLTA vs. Common Law/Chapter 13 Leases
Regular readers of my blog will remember my post from some time ago covering the difference between leases under the Virginia Residential Landlord and Tenant Act (VRLTA) or leases under the Common Law or Chapter 13 of Title 55 of the Code of Virginia. As you may recall, while rights and remedies under VRLTA cannot be waived, most common law/chapter 13 rights can be waived in the lease. Astute readers, however, will notice that I mentioned that most rights under the common law/chapter 13 can be waived - the implication being that there are some that cannot. The right to have the court as a bulwark against abuse, and subsequently the prohibition on self-help, is generally not waivable in even a common law/chapter 13 lease. As a result, the rules in this post are equally applicable to VRLTA leases and common law/chapter 13 leases.
The Danger of Landlord Self-Help
If your tenant stops paying the rent, violates your lease, or otherwise causes trouble, and your response is to take possession of the property yourself, you could be in for a world of trouble. Your tenant can file suit and get a court to actually order you to give possession back. You will likely be charged money for the loss of use and "quiet enjoyment" of the property while the tenant was deprived of it. You will also likely be assessed the tenant's attorneys' fees. Finally, heaven help you if you did anything to the tenant's personal property.
In short, self-help as a landlord will likely end up costing you far more than whatever cost you would incur by waiting and following proper procedures.
The Danger of Tenant Self-Help
The most common form of tenant self-help when the landlord violates the lease is to simply stop paying rent. Guess what - if you do that, you can still be evicted for non-payment of rent. You might ultimately not have to pay the rent that you withheld, but by going outside the proper channels you will likely be evicted, be assessed your landlord's attorneys' fees, and you may very well still have to pay that rent. Again, self-help will likely end up costing you far more than the cost of waiting and following proper procedures.
The Proper Procedures
As a landlord or tenant, there are proper legal procedures to take. As a landlord, there are three types of notices you must give first: 5 day pay or quit, 21/30 notice, or 30 day notice. The 5 day pay or quit is for non-payment of rent only. This gives the tenant 5 days to get paid in full or the lease terminates. The 21/30 notice is for a remediable breach of the lease which gives the tenant 21 days to fix the breach, or else the lease terminates 30 days following the notice. The 30 day notice is for a non-remediable breach which simply notifies the tenant that the lease will terminate after 30 days. If, under any of these notices, the lease does terminate and the tenant remains on the premises, you must file an Unlawful Detainer action in court. If you win that action, and the tenant remains in possession, then you must file for a writ of possession. Only upon the execution of the writ of possession may you forcefully re-take possession of the property.
As a tenant, you also have three types of notices available to you: an "assertion" notice, a 21/30 notice, or a 30 day notice. In an "assertion" notice you simply notify, in writing, the landlord of the problem and allow the landlord a "reasonable" amount of time to fix it. A 21/30 notice is for remediable breaches of the lease which, again, allows the landlord 21 days to fix the breach or else the lease terminates 30 days after the notice - you must still pay your rent while this notice is pending. A 30 day notice is for a non-remediable breach, and again, the lease will terminate automatically after 30 days - but you must still pay your rent while this notice is pending. For the latter two notices, if the lease does, in fact, terminate after those 30 days, then, and only then, you may stop paying rent, but you also must vacate the property by the end of those 30 days. For the "assertion" notice, once a "reasonable" time has passed, you can go to the General District Court and file a Tenant's Assertion laying out the problems. You will then continue to pay rent, only you pay it to the court to go into the court's escrow account. The judge ruling on the case will decide whether to remit some or all of that money to you, and will also decide what corrective actions the landlord must take (or if the lease needs to just terminate).
These procedures can be complicated, and they usually take a couple of months to complete, but they are required legal procedures. Not following these procedures could very well end up leaving you in a world of trouble.
Commercial Leases - The Exception
I said in the introduction there is a major exception. That would be commercial leases. Commercial leases are leases to persons or companies who do not plan to live on the premises, but instead plan to run a business out of the premises. A landlord (but not a tenant) may engage in "self-help" in some cases in a commercial lease. However, that right must be clearly delineated in the lease, and, unless there are specific rules in the lease for how personal property is to be handled, the landlord must be very careful to protect the personal property of the tenant if engaging in self-help. In my opinion, it's always safer to go the legal, non-self-help route, even in commercial lease situations, because unless you have an airtight lease, there's always an opportunity for trouble with self-help.
Conclusion
If you are in a situation with a bad landlord or tenant, self-help is not the answer. There is a specific legal process you generally must, and pretty much always should, follow. If you would like assistance in ensuring that you are following all legal steps properly in your landlord/tenant dispute, please feel free to call (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com to set up your initial consultation. It's free for up to half an hour!
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