As always, before reviewing this post, please read my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed here are applicable only to the Commonwealth of Virginia.
Introduction
Many people, when they plan to interact with the courts - especially the civil side of the courts - would only plan to do so with an attorney. As a result, frequently the only interaction someone has with the civil courts without an attorney is when they are sued - after all, if you are the one being sued, you probably did not plan ahead to have an attorney already. The first question people often ask when they've been sued is "ok, what do I do now?" My answer, as you can probably imagine, is "hire an attorney." The point of this blog, however, will be to discuss how fast you need to hire that attorney, and what you can do to protect yourself if you wait too long.
When the Clock Starts Ticking
The clock on your deadline to respond to a lawsuit does not start ticking the moment a lawsuit is filed. After all, if a lawsuit's just been filed, how would you know about it in order to respond to it? As a result, the clock does not start to tick until you have been "served" with the lawsuit. Service of a lawsuit occurs when a summons, along with the Complaint, is delivered to you by either a private process server or a deputy sheriff.
Now, you've probably seen the movies where the process server pulls some trick on some unsuspecting person in a public place so that the person identifies him or herself, and then gives them the papers and says "you're served." While that is one of the few things shown on TV that actually does happen on occasion (I once had a process server serve an individual while he was at a work convention, and he repeatedly denied being that person, not realizing he was wearing a name tag), that is not necessary if the person suing you knows where you live. If they know where you live, the process server can come to your home, knock, if a member of your family older than 16 is home but you are not he or she can give the papers to that person, and if no one is home, he or she can tape the paperwork to your front door, and that is when you are considered served, and this is the moment the clock starts ticking.
How Long is the Clock?
Well, this is where things get a little trickier. You see, in Virginia, we have two completely separate courts for civil cases - the Circuit Court and the General District Court. The Circuit Court is technically the "higher" court since you can appeal General District Court rulings to the Circuit Court, but most lawsuits start in the General District Court. The General District Court has jurisdiction to hear any lawsuit for less than $25,000, while the Circuit Court has jurisdiction to hear any lawsuit for more than $4,500 (so yes, if a lawsuit is between $4,500 and $25,000 a plaintiff can choose which court in which to file, but most choose the General District Court since it typically proceeds much faster). Also, if you're being sued for something other than money (say, "specific performance" on a contract, or an injunction), those can generally only be in the Circuit Court, although the General District Court is the only court that can hear evictions. Welcome to the complexity that is the Virginia court system.
Add to that the fact that within the General District Court there is the main civil court, and the small claims court. The small claims court has jurisdiction to hear any lawsuit for less than $5,000 (so yes, if a lawsuit is between $0 and $5,000, the plaintiff can choose whether or not to file in small claims court, and if it is between $4,500 and $5,000, the plaintiff can choose whether to file in GDC small claims, GDC regular civil, or Circuit Court). The reason this is important to know is that all three "courts" have different procedures for responding to a lawsuit.
How to Tell Which Court You Are In
So, telling you there are three courts does not help you very much if you cannot tell which court your case is in. The easiest approach is to look at the top of the papers you were served with. If it says "In the Circuit Court of X County" you are in the Circuit Court. If it is a "Warrant in Debt," "Warrant in Detinue," or "Summons for Unlawful Detainer," you are in the General District Court. If it is a "Warrant in Debt - Small Claims Division" or a "Warrant in Detinue - Small Claims Division" you are in the small claims court. If you cannot tell, do not guess - either call the courthouse or speak to an attorney.
Timeline in Circuit Court
If you have been sued in the Circuit Court, you have 21 days from the day you are served in which to file "responsive pleadings." A responsive pleading can be an "Answer," a "Demurrer," a "Plea in Bar," or a similar pleading, but this must be in writing, and it must be done properly to avoid a default judgment. Note, if you take more than 21 days, you are in default. If you are in default, you are entitled to no further notice about the case, and a judgment can be entered against you without you being told that this has happened. It is in your interest to hire an attorney ASAP if you are being sued in the Circuit Court so that a responsive pleading can be done properly.
Timeline in the General District Court
If you have been sued in the General District Court, but not in the small claims division, your timeline is a little looser. Unless the box on the summons states that you must appear to try your case, the date listed on your summons is what is called a "first return." At the first return, you will tell the judge whether or not you agree that you owe the money you have been sued for. If you do, a judgment will be entered against you. If you do not, a trial date will be set. If you do not appear, a default judgment may be entered against you. As a result, you do not need to file anything in response to a General District Court summons, but you do need to appear at the first return. If you cannot appear, call the court clerk immediately and the clerk will explain the procedure for getting a continuance. As for when you should hire an attorney, I would recommend doing so before the first return - if the judge asks any follow-up questions, the attorney will be better prepared to face them. However, you do not really need an attorney until you are filing something or preparing for trial.
What do I mean by filing something? Well, typically at a first return at least one party will ask for "pleadings." This means the plaintiff must file and send you a "Bill of Particulars" outlining the details of the case. Then, you must file and send the plaintiff an "Answer and Grounds of Defense" outlining your defenses to the case. Failure to file your Answer and Ground of Defense on time can result in a default judgment being entered against you. As a result, I would strongly recommend you have an attorney well before the deadline to file your Answer and Grounds. As a final note, if you do not have an attorney at the first return and the other party does not request pleadings, you should. There's always a chance they won't file theirs on time (in which case you can get the case dismissed), and a Bill of Particulars will tell you the exact arguments you face, as the plaintiff cannot argue facts at trial that were not alleged in the Bill of Particulars.
Timeline in GDC - Small Claims Division
The Small Claims Division is a little faster than the main General District Court. There the date on your summons is your trial date, so be prepared to go to trial that day, and there is nothing else you need to do before then. However, you are not permitted to have an attorney in the Small Claims Division. If you wish to hire an attorney to represent you in the case, you can do so, but they will then need to file a motion to remove the case to the main General District Court, where it will be tried on the timeline outlined above.
What about the Juvenile Court?
Those who know a bit about the Virginia court system know that we have one more trial court I have not discussed in this blog post - the Juvenile and Domestic Relations District Court. I left that off first of all because you are not sued for money in the way we typically think of it in the J&DR Court. The only civil cases you can be sued for in the J&DR Court are child custody and visitation, child support, spousal support, adoption recommendations, and protective orders. I left the J&DR Court out for two reasons - first, the procedures and deadlines vary dramatically from county to county within Virginia, and second, the procedures and deadlines vary dramatically from type of case to type of case. When you are served with a J&DR Court case, at least one document will have a court date on it. You should call the clerk and ask if that date is a "status hearing" or a "hearing on the merits." If you do not have a court date on your papers, then one hasn't been set yet - although you should still call the clerk and make sure. I recommend hiring an attorney or speaking with the court clerk about your specific case - rather than following any timeline suggested on a blog.
What to Do if a Default Judgment is Entered Against You
The first thing to do is figure out why a default judgment was entered against you. Was it because you decided to ignore the case? Or was it because something came up that prevented you at the last minute from appearing at the GDC court date or filing an Answer in the Circuit Court? Or was it because you never knew about the lawsuit in the first place?
Virginia places a premium on "certainty" in our judicial outcomes. As a result, once a default judgment is entered, it is very hard to get undone. Moreover, the rules are different depending on when you are asking to have the default get undone. Nonetheless, it is possible to get a default undone in some cases.
If you are requesting the default judgment be vacated within 21 days after it is entered, you need to show the court "good cause" as to why you were in default. A sudden trip to the emergency room, a traffic jam on the way to court, etc. can, although there is never a guarantee, be "good cause."
If, however, it is more than 21 days later, a default can only be vacated for five reasons. They are as follows:
1) Clerical Error - If the judgment is supposed to be against someone else with the same name as you, but the court clerk accidentally listed it as you (by using your address, for example), or the clerk accidentally records the judgment twice, you can undo the default judgment.
2) Fraud on the Court - The Plaintiff lied to the court about where you lived, how much you owed, etc. This must be filed within two years of the judgment. Please note that "fraud" is very hard to prove as you must prove that the plaintiff intentionally misled the court. An accident or mistake of fact by the plaintiff is not fraud.
3) A void judgment - A void judgment is one that the court was not authorized to give when it gave it. This has nothing to do with the validity of the claim itself. A judgment is generally only void if the court lacked jurisdiction to hear it - either subject matter jurisdiction (say a General District Court judge entering judgment on a lawsuit for $40,000), or personal jurisdiction (you were never properly served with the court paperwork). This is the most common way a default judgment is undone, as oftentimes a default is due to the address on which a person was served being out of date. Note, however, that just because you did not receive a summons does not mean your judgment is void. In some cases you can be served via Secretary of the Commonwealth, and that's still good service even if the address is out of date on the theory that you should have kept your creditor appraised of your change in address.
4) An accord and satisfaction - If, prior to the entry of the judgment, you and the plaintiff reached a written agreement settling the matter, and you fully paid off that agreement, prior to the entry of the judgment, and you can prove it, or if you had fully paid everything the plaintiff seems to be asking for prior to the entry of the judgment, then the judgment will be vacated.
5) Military service - If you are a member of the armed forces on Active Duty, you have rights under federal law to protect you from some default judgments. If you did not waive your rights (by actively participating in the case), and those rights were not followed by the court (say because the plaintiff did not know you were on Active Duty), you can get a default judgment vacated.
That's it. So, if you don't have "good cause" within 21 days, or even if you do have good cause, but it's been more than 21 days and none of the above situations apply to you, then you are stuck with the default judgment, no matter how good a defense you had. From there, you just have to figure out how to pay. As a result, the best way to get out of a default judgment is to not allow one to occur in the first place.
Conclusion
Being sued is a scary thing, and many people simply do not know what to do when they have been sued. They know they need to get an attorney - but they do not know how soon, after all, they want time to interview multiple attorneys. The answer does depend on which court you have been sued in, but really, no matter which court you have been sued in, you want to find an attorney ASAP. When you are served, try speaking to an attorney that day, the next at the latest, and you will probably be in good shape. If you have been sued and would like someone to defend you please feel free to give us a call at (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation. If it turns out your suit is in an area we don't practice, we can give you a referral. Otherwise your consultation is free for up to half an hour!
Wednesday, July 31, 2013
Thursday, July 25, 2013
When Living With Your Parents Goes Bad - Tenancies at Will and the Law
As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post from earlier this month in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way an any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post from earlier this month in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way an any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
Thursday, July 18, 2013
You Can't Take the Kids and Run - Relocation and Child Custody
As always, before reading this blog post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.
Relocation Cases - Burden of Proof, etc.
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will get the same amount of time with the child as he or she has now (even if that means fewer weekend visits, but more weeks in the summer or some similar re-arranging of the schedule), then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved. You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?
If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.
My Relocation was Approved, But Visitation Isn't Working
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.
Conclusion
Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!
Introduction
The reality is that, unless you are a particularly stubborn
person, or a person who managed to find, and could afford, your dream house
right out of college, almost all of us will move during our adult lives. In fact, we may move frequently. For most people, this is not a big deal -
sure, it may be inconvenient, but a few days of packing, a day or two of actual
moving, a few days of unpacking and it’s done.
For people with children who do not live with the child’s other parents,
however, it can quickly devolve into a nightmare.
There has long been recognized in the United States a right
to travel and move freely within the United States - not only within your own
state, but from state to state. This is,
in fact, considered a “fundamental” constitutional right. In other words, a constitutional right that is
so basic, it cannot be infringed upon by the government without the government
meeting the most constitutionally rigid of tests - “strict scrutiny” - wherein
the government must prove that its actions are “narrowly tailored” (as in, this
is the least restrictive approach possible) to resolve a “compelling government
interest.” So, if you have custody of
your child, the other parent absolutely cannot prevent you from moving. But, the other parent can prevent you from bringing your child with you, and therein lies
the problem.
Relocation cases in the child custody context are difficult issues. For one, they inherently affect the custodial parent far more than the non-custodial parent. A non-custodial parent’s relocation does not have the possibility of harming the child’s relationship with the other parent, but that certainly is a possibility in the reverse. It leaves many custodial parents feeling like the law treats them unfairly - and to an extent, they are right. In this blog post, I hope to help you navigate some of the challenges of a relocation involving children whose parents live apart.
Relocation Cases - Burden of Proof, etc.
A typical relocation case begins with the custodial parent
giving the court and the non-custodial parent the mandatory 30 days’ advance
notice of the relocation. If the
non-custodial parent does nothing, the relocation happens, and any new case
involving custody and visitation will treat the relocation as given and the
non-custodial parent as essentially having forfeited his or her right to object
to the relocation. When a disputed
relocation case arises, it happens when the non-custodial parent during that 30
day window files a motion to enjoin the relocation. That’s where the “fun” starts.
Despite the fact that the case is initiated with a motion
filed by the non-custodial parent, the burden of proof in a relocation case is
actually on the custodial/relocating parent (as a note, I will continue to
treat the relocating parent and custodial parent as interchangeable in this
case because it is practically unheard of for there to be a contested
relocation involving the non-custodial parent moving - at worst, there will
just be a motion to alter that parent’s visitation).
Of course, the question is “burden to prove what?” The answer to that question, unfortunately,
is that the Virginia courts still have not sorted this out, and unlike many
other states, the Virginia legislature has not passed a law giving the courts
guidelines for determining relocation rights.
Instead, we have a mishmash of rules.
The custodial parent must prove that the non-custodial parent’s
relationship with the child will not be harmed by the relocation. However, if the custodial parent fails to
prove that, but the custodial parent succeeds in proving that the relocation
would be in the child’s best interest anyways, then the relocation may be
approved regardless. Further, if the
custodial parent proves that the custodial parent cannot (perhaps for reasons of jobs, finance, threat to health,
etc.) remain at the custodial parent’s current location and cannot move to a location that is closer
than the proposed relocation point, then the court must do a whole different
analysis of whether the child’s best interest is custody with the custodial
parent at the new location or with the non-custodial parent.
If it sounds like a mess, it is, but until the courts or the legislature gives us some clarity, that’s what we are left with. The general rule (as always, this is just a general rule, as every case is different) is that if you show that with the relocation, the non-custodial parent will get the same amount of time with the child as he or she has now (even if that means fewer weekend visits, but more weeks in the summer or some similar re-arranging of the schedule), then the relocation will probably be approved. If you cannot show that, the relocation probably will not be approved. You should also be prepared to take on the burden of the additional travel - if plane travel is suddenly necessary, you’ll be required to pay for it, if an extra two hours of car travel is required, you’ll be required to travel those extra two hours.
My Relocation was Denied - Now What?
If your relocation is denied (in other words, if the motion to enjoin is granted), you are actually only enjoined from relocating with the child. As discussed above, the non-custodial parent cannot stop you from moving. So, you would have several options. If it is a possibility, you can remain where you are, or propose a new relocation point that is hopefully closer to the non-custodial parent and might then be approved. You could also decide to move anyways, but then you would have to surrender your child to the custody of the non-custodial parent (you can try to get your child back, and now in your new location, if there is a “material change of circumstances” after the change in custody, but that can take years, and there is no guarantee of success). You could also move with your child anyways, and then be arrested and go to jail for contempt of court (and of course, the other parent would then get custody while you are in jail). Those are pretty much your only options if your relocation is denied.
My Relocation was Approved, But Visitation Isn't Working
If your relocation was approved but it becomes clear that
the visitation arrangements you made to ensure the non-custodial parent got the
same amount of time with the child isn’t working, then you can file a motion to
modify visitation. This is because the
fact that visitation arrangements do not work as planned is usually considered
a “material change in circumstances” that warrants re-consideration.
Now, with your relocation in place, you can make a request to reduce the non-custodial parent’s time. Just be prepared that a hearing like this can go either way. They may very well get more time, if the judge believes that more time would make the plan work better and it would be in the best interest of the child. Regardless of what you do, however, you are not forced to just live with visitation plans that sounded great in theory but turn out not to work at all. Be aware, however, that if it appears to the judge that this was your plan all along - that you knew the visitation would not work and you would just ask to reduce it after you move - you could be slammed pretty hard both for attorneys fees and in custody rights themselves.
Conclusion
Relocation is one of the toughest issues there is involving custody. Many people get easily frustrated at the amalgam of rules the courts use, and the sometimes nonsensical rulings that come out of it. If you are a custodial parent preparing to relocate or a non-custodial parent worried about your visitation rights after a potential relocation by the custodial parent, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation with our firm. While I do not handle custody/visitation cases anymore, others in my firm do, and I will be happy to set you up with them. Your initial consultation will be free for up to half an hour!
Tuesday, July 9, 2013
Can You Hear Me Now - Getting Your Lawyer's Attention
As always, before reviewing this post, please read my disclaimer by following the link above or by clicking on this link. As always, any legal principles discussed are applicable only to the Commonwealth of Virginia.
Introduction
One of the most frustrating issues that clients encounter when working with an attorney is the fact that calls and e-mails will sometimes go days, if not longer, without a response. To you, your legal issue is a central part of your life, and you think it should be to your lawyer as well. The problem is, lawyers, like everyone else, need to make a living, and we just simply can’t do that by paying attention to only one case.
That being said, however, there are some things you can do to help yourself stand out from the crowd as a client, and make sure your case gets more than your attorney’s average level of attention. In this blog post, I hope to help you be a better client, so that your lawyer can be a better lawyer to you.
Pay Your Bills On Time, Every Time
Now, understand that when a lawyer takes a case, she has an ethical obligation to provide her services to you thoroughly and competently, and if your failure to pay her is starting to affect her ability to do that, she is supposed to (and usually will) withdraw as your attorney, not simply neglect your case. Nonetheless, if you want your lawyer to do more than just an adequate job, and if you want your concerns addressed quickly, instead of in due turn, the best way to do that is to make sure your lawyer knows she is going to get paid for the work she is doing for you - and quickly. The best way to do that is to pay your bills on time, every time.
Be Friendly
I know that I, for one, will generally respond to all of my clients in due course, no matter how unpleasant they may be. But I cannot deny that when I have a particularly friendly and pleasant client, I will go out of my way to make sure that client’s needs are met. I have even ended up friends on a personal level with some clients after their cases ended (one even became my family’s go to dog-sitter!) - and I know I’m not alone in this. In sum, it never hurts to be friendly and understanding towards your lawyer - doing so will likely foster a better attorney-client relationship, and with it get more attention paid to your case.
Be Persistent
The best solution to this problem is friendly persistence. A “Hey, I just wanted to see if you got this” is good. A “You jerk, you never responded to my e-mail” is not. Nonetheless, it's amazing how often a client will send one e-mail, not hear back in a couple days, and then just give up. Use your common sense, be persistent, and you will get your response.
Conclusion
Working with an attorney who is busy can be very frustrating to a client - even if the end result of your case is ultimately positive. There are ways you can minimize that frustration, however, by standing out from your attorney’s other clients. Ensuring that you always pay your bills on time, being friendly in all of your communications with your attorney, and being persistent with your attorney are three of the best strategies to ensure the best possible attorney-client relationship. If you feel you are being neglected unfairly by your current attorney, however, feel free to give a call to (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com and set up a consultation with me. It’s free for up to half an hour, and we can figure out at that consultation if I can actually provide faster service to you
Introduction
One of the most frustrating issues that clients encounter when working with an attorney is the fact that calls and e-mails will sometimes go days, if not longer, without a response. To you, your legal issue is a central part of your life, and you think it should be to your lawyer as well. The problem is, lawyers, like everyone else, need to make a living, and we just simply can’t do that by paying attention to only one case.
It actually took me a while to realize this, and I was
frustrated with other attorneys who were so slow to respond. In the early days of my legal career, I used
to promise clients that every e-mail which required a response would receive a
response no later than the next business day, but frequently the same day - and
I stuck to that pretty well. Then, as I
gained experience and took on more responsibility, this became a problem. While I still strive to that goal, I no
longer make it a guarantee.
The reality is, if your attorney is any good, she probably
has a lot of cases to juggle. I, for
example, am currently the primary attorney on more than sixteen active cases,
and am also assisting other attorneys in my office with nearly a dozen
more. If your case has a hearing next
week, but your attorney has another case with a hearing this week, she’s going
to focus on the case with the hearing next week - she’ll focus on yours once
that hearing’s done.
That being said, however, there are some things you can do to help yourself stand out from the crowd as a client, and make sure your case gets more than your attorney’s average level of attention. In this blog post, I hope to help you be a better client, so that your lawyer can be a better lawyer to you.
Pay Your Bills On Time, Every Time
It’s crass, it’s unfortunate, but it’s also reality. As I said above, lawyers are people too. We have bills to pay, children to put through
college, and food to put on the table.
Moreover, despite our reputation, most of us are not filthy rich and
raking it in from our work. If you are
interacting with an attorney in a small law firm - say, one with fewer than ten
attorneys, and if you are hiring an attorney as an individual that’s probably
what you’re doing - the odds are you are dealing with attorneys who make a
middle class to upper-middle class income, and no more - possibly less. Add to that, if they are younger, possibly
$100k or more in student loans, and you start to realize that we have all the
same financial concerns that you do.
So, put yourself in your attorney’s shoes. Each client is kind of like an employer. So, if you had two jobs, both of your bosses
wanted you to work for them for eight hours, those eight hours they want
actually overlap with each other, and one job always pays you your paycheck on
time while the other is sometimes months late or sometimes never pays at all,
which job are you going to go to?
Now, understand that when a lawyer takes a case, she has an ethical obligation to provide her services to you thoroughly and competently, and if your failure to pay her is starting to affect her ability to do that, she is supposed to (and usually will) withdraw as your attorney, not simply neglect your case. Nonetheless, if you want your lawyer to do more than just an adequate job, and if you want your concerns addressed quickly, instead of in due turn, the best way to do that is to make sure your lawyer knows she is going to get paid for the work she is doing for you - and quickly. The best way to do that is to pay your bills on time, every time.
Be Friendly
This may seem like a silly rule, but I really cannot
emphasize it enough. There’s a saying
that you “catch more flies with honey than with vinegar,” and at least when it
comes to attorneys, that’s certainly true.
I suppose my running theme of this blog post is to point out
again and again that attorneys are people, just like you. Take my example above and put yourself in
your lawyer’s shoes again. Once again,
you have two jobs, your bosses each want you to work eight hours, and the hours
overlap, only this time both are equally likely to pay you on time. However, one boss is extremely friendly, and
one constantly threatens you with what will happen if you don’t do what that
boss wants. Which job are you going to
go to?
Despite the seemingly obvious simplicity of this rule, you’d
be amazed at how often clients don’t follow it.
One e-mail takes two days to get a response instead of one, and suddenly
you are the worst attorney in the world and subject to repeated threats and
guilt trips from your client, who also then starts threatening to not pay his
bills. Do you think that really is going
to make your attorney more responsive?
I know that I, for one, will generally respond to all of my clients in due course, no matter how unpleasant they may be. But I cannot deny that when I have a particularly friendly and pleasant client, I will go out of my way to make sure that client’s needs are met. I have even ended up friends on a personal level with some clients after their cases ended (one even became my family’s go to dog-sitter!) - and I know I’m not alone in this. In sum, it never hurts to be friendly and understanding towards your lawyer - doing so will likely foster a better attorney-client relationship, and with it get more attention paid to your case.
Be Persistent
The final piece of advice I have is simply to be
persistent. Things slip through the
cracks - that’s just reality, and it’s always possible that your e-mail, voice
mail or letter is one of those things.
Maybe your attorney opened your e-mail then got a distracting phone call
- and now your e-mail no longer shows up as unread. The point is, it very much is possible that
your communication has simply fallen through the cracks.
The best solution to this problem is friendly persistence. A “Hey, I just wanted to see if you got this” is good. A “You jerk, you never responded to my e-mail” is not. Nonetheless, it's amazing how often a client will send one e-mail, not hear back in a couple days, and then just give up. Use your common sense, be persistent, and you will get your response.
Conclusion
Working with an attorney who is busy can be very frustrating to a client - even if the end result of your case is ultimately positive. There are ways you can minimize that frustration, however, by standing out from your attorney’s other clients. Ensuring that you always pay your bills on time, being friendly in all of your communications with your attorney, and being persistent with your attorney are three of the best strategies to ensure the best possible attorney-client relationship. If you feel you are being neglected unfairly by your current attorney, however, feel free to give a call to (703)281-0134, or e-mail me at sleven@thebaldwinlawfirm.com and set up a consultation with me. It’s free for up to half an hour, and we can figure out at that consultation if I can actually provide faster service to you
Tuesday, July 2, 2013
Changing the Locks, Withholding Rent and Other Mistakes - Your Lease, "Self-Help" and the Law
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!
[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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