As always, before reading today's post, please review my disclaimer by following the link above or by clicking on this link. As always, all legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Regular readers of my blog are well aware by now of my opinion about "self help" in the landlord/tenant context - mainly, don't do it. While the remedies available to a landlord for a tenant who "self helps" by withholding rent are obvious (eviction), the remedies for a tenant whose landlord has "self helped" aren't so obvious. If you are in a situation where your landlord has engaged in "self help" and changed your locks, cut off your utilities, or engaged in other actions to force you out of the property without following proper procedures, you might be wondering what remedies you have. Today's blog post will discuss what to do if your landlord evicts you, or attempts to evict you, unlawfully.
VRLTA vs. Common Law Lease
As my regular readers know, usually the first question to ask in a landlord/tenant dispute is whether your lease is governed by the Virginia Residential Landlord and Tenant Act (VRLTA) or by the common law. This situation, however, is an exception, as the rights and remedies available to a tenant are basically identical between the two situations. The VRLTA has Virginia Code Section 55-248.36 which expressly forbids a landlord from retaking possession of property "(i) by willful diminution of services to the tenant by interrupting or causing the interruption of electric, gas, water or other essential service required by the rental agreement or (ii) by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." In other words, a VRLTA landlord cannot evict a tenant by shutting down utilities, making the dwelling unlivable, or changing the locks.
For common law leases, however, Code Title 55, Chapter 13 has a similar provision, Virginia Code Section 55-225.1, which was adopted in 1994. Moreover, this is one of those rare situations where the common law also adopts the VLRTA's ban on a waiver of rights. Specifically, in 2012, the following line was added to Virginia Code Section 55-225.1: "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." In other words, this section does not even suffer from the usual non-VRLTA handicap of being waivable in a lease - the Code section applies no matter what the lease says.
Remedies for Unlawful Eviction
So now that we know that unlawful evictions are, in fact, unlawful in any residential lease situation, the next question becomes what you can do about it. Here again the VRLTA provision (Virginia Code Section 55-248.26) and non-VRLTA provision (Virginia Code Section 55-225.2) are nearly identical. In each case, you can go to the General District Court and file a Tenant's Petition for Relief from Unlawful Exclusion.
Usually General District Courts will treat these petitions as emergencies and hear them fairly quickly. When you go to trial, if you can prove that your landlord acted unlawfully (usually the lack of a court order and the fact of the exclusion or diminution of service is sufficient), the court has several remedies it can choose from and will usually accept your desired remedy. Specifically, it may order the landlord (under penalty of contempt) to allow you back into the property or to resume the utility services, or it may terminate the rental agreement with you owing no further rent. If the court terminates the rental agreement, the landlord is required to return your security deposit to you in full, even if there was damage to the property.
The court's remedies do not end there, however. The court will also award you any "actual" damage you suffered. For example, if you had to stay in a hotel, your landlord will have to pay your hotel bill. If you got sick due to the lack of heat or air conditioning, the landlord will have to pay your medical bill. Any actual damage you suffered due to the landlord's actions will be recoverable.
Finally, and perhaps most importantly, the landlord will also have to pay your reasonable attorneys' fees. As a result, you should strongly consider hiring an attorney to represent you in such a case, since there's a good chance the landlord will have to pay the attorney fees (and if the landlord refuses to pay, you can always garnish your own rent - just don't do it without a court order first).
Quick Reminder About Commercial Leases
It is worth again noting that the entire above post applies only to residential leases (leases for homes or apartments whose primary purpose is for you to live there). As discussed in my original "self help" post, landlords in commercial leases (leases for property where the primary purpose is to conduct business) technically are allowed to "self help," even though I generally recommend against it to my commercial landlord clients. As a result, the remedies here are not available to you in a commercial lease unless the lease itself specifically makes them available.
Conclusion
If your landlord unlawfully evicts you from your home, you don't have to just sit there and complain about it. You can take action. Better yet, you can hire an attorney knowing there is a good chance that most of your attorneys' fees will be ordered to be paid by the landlord. If you feel you have been the victim of unlawful eviction, either by exclusion or by diminution of service, please call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up your initial consultation. Our initial consultations are free for up to half an hour!
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