Under Virginia law, when a commercial tenant defaults on a lease agreement for non-payment of rent or breach of a lease obligation, the landlord can move for eviction through the judicial process by filing what is known as an unlawful detainer, then obtaining a writ of execution, and conducting an eviction. Many commercial leases provide that the landlord is not required to provide notice or demand of any kind to the tenant under these circumstances. It is generally recommended, however, that the landlord provide the tenant with a notice of default so that the tenant has an opportunity to cure the default by either paying the past due rent or correcting the lease violation.
Filing a Summons for Unlawful Detainer
In most cases, landlords choose to invoke the judicial process to obtain a commercial eviction because it is a lot less risky than self-help eviction. The judicial process is started by the filing of a Summons for Unlawful Detainer (DC-421) with the General District Court in the county where the property is located. The name and address on the Unlawful Detainer Summons must be correct and must agree with the lease and other documents. The Unlawful Detainer Summons shall also set forth the date and time of the initial hearing which can be obtained from the clerk’s office. The Unlawful Detainer Summons must also contain the amount of rent and damages due on the day of filing. If desired, an additional statement claiming rent prorated to the date of judgment may be included.
For judgment to be awarded at the initial return date hearing, an affidavit must be filed and served with the Unlawful Detainer Summons. The affidavit should set forth the tenant’s name and address, a summary of the breach which has occurred or an accounting of the amount of rent and damages due, and where applicable the amount of attorney’s fees claimed. The affidavit should be signed by the person who has actual knowledge of the facts set forth in the affidavit, which in most cases is the landlord, not the attorney.
The Unlawful Detainer Summons contains a Mailing Certificate on the second page which must be completed. The Mailing Certificate is a certification that the Unlawful Detainer Summons has been mailed to the tenant. The Unlawful Detainer Summons must also be served on the tenant. If the tenant is a domestic corporation, service can be made on any officer, director, or registered agent of the corporation. Before the initial hearing, which is commonly referred to as the “initial return date” or “first return date,” the landlord should check to see whether all of the defendants were properly served by contacting the clerk’s office if service was requested by Sheriff or by contacting the private process server hired to serve the documents. An affidavit of service should be filed with the Clerk’s office sufficiently in advance of the initial return date indicating the date, time, and method of service.
Appearing at the Initial Return Date
At the initial return date, the landlord and tenant are to appear and the Court will inquire as to whether the tenant contests the eviction. If the tenant appears at the initial return date and contests the eviction, the Court will set the matter for an expedited trial. Routine General District Court matters in Northern Virginia are usually scheduled between 3-6 months after the initial return date, however, landlord tenant matters can be scheduled within a few weeks of the initial return date because they are given priority on the docket. The parties can also request whether a Bill of Particulars and Answer and Grounds of Defense will be filed prior to the trial date and if requested, the Court will set deadlines for these pleadings to be filed. These pleadings must also be mailed to the opposing party at the time of filing. The Bill of Particulars is a document setting forth in detail the basis for the landlord’s claim for eviction. The Answer and Grounds of Defense is the tenant’s opportunity to state whether they agree or dispute each of the allegations made by the landlord regarding the grounds for eviction. If a party fails to file its Bill of Particulars or Answer and Grounds of Defense by the stated deadline it can be grounds for dismissal of their claims or defenses.
If the tenant appears at the initial return date but does not contest the grounds for eviction, the Court can enter judgment for possession and/or damages in favor of the landlord. If the tenant fails to appear at the initial return date, the court can enter judgment on the affidavit, meaning that no further hearings will be scheduled, and judgment for possession of the premises and/or monetary damages has been entered in favor of the landlord.
Appeal Rights
If judgment is entered in the landlord’s favor, the tenant has a right to appeal within ten days of the judgment by filing a notice of appeal, posting a bond, and paying any applicable writ tax or fees. If the tenant successfully perfects the appeal, the case is transferred to the Circuit Court and the evidence is reheard. If the tenant does not appeal within 10 days, a Writ of Execution (also known as a Writ of Possession) can be issued by the Clerk’s office at the request of the landlord, which is then sent to the Sheriff’s office and allows for the eviction to be scheduled. In certain circumstances, an immediate Writ of Execution can be issued, prior to the 10-day appeal period expiring, when the case arises out of a trustee’s deed following foreclosure or for non-payment of rent if requested by the landlord at the initial return date. Even in these circumstances, however, the eviction date cannot take place before 10 days have elapsed from the date the judgment was entered.
Scheduling the Eviction
Once the Writ of Execution is sent to the Sheriff’s Office, the Sheriff’s Office will contact the landlord or the landlord’s attorney to schedule the eviction date. The eviction must be completed by the Sheriff within 30 days of the issuance of the Writ of Execution. The landlord or a person appearing on behalf of the landlord must be present on the eviction date. In most instances, the tenant moves all of their property out of the premises before the eviction date and a formal eviction is unnecessary.
Are you involved in a commercial eviction matter and have questions about the eviction process? If so, you can contact the Thomas Law Office and we would be happy to discuss your specific situation with you.
