A tenant can be forced to vacate its premises following a default, provided that the terms of the lease are first observed. As noted above, most commercial leases provide that a default will not occur until after the tenant has received a written notice and an opportunity to cure its breach. For payment defaults, there may be no cure period, or perhaps merely a grace period of five to ten days (ie, no notice to the tenant is required). For non-payment defaults, a notice/cure period of 30 days is typical, although sometimes the lease will permit additional time to cure breaches that by their nature cannot be cured within 30 days. However, as noted above, most leases also describe some non-payment events that result in an “automatic” default, with no grace period and no opportunity to cure.
After the procedures in the lease are observed, if the proper notice(s) have been given and no cure has occurred (if applicable), the process for evicting a tenant is typically the pursuit of an action for unlawful detainer. The basic elements of this action are as follows:
- Delivery of a five-day “pay or quit” notice, as required by Va. Code § 55-225, or, if the default in question is non-monetary, a 30-day notice to quit letter under Va. Code § 55-225.43, both under the Landlord and Tenant Act. [As noted above, for non-residential leases the parties can theoretically waive or supersede these requirements by the terms of their lease.]
- If the tenant does not comply, the landlord may obtain a summons for unlawful detainer, and serve it on the tenant.
- A return date will be set that requires the parties to appear before a judge – typically about 30 days from the filing of the action. If the tenant admits the default, the judge will enter a judgment in favor of the landlord. If the tenant disputes or assert a defense, the case will be set for trial, which may be another 30 days or more. During that period, pleadings may be required (eg, a bill of particulars, an answer, etc).
- Following judgment, the tenant has ten days to appeal. If it appeals, the case is litigated further.
- After the ten-day appeal period, if the tenant does not appear and does not voluntarily vacate the premises, the landlord may file a request for writ of possession. This takes one to two days and requires processing by the clerk’s office. The court sends the writ of possession to the sheriff’s office and the sheriff has 30 days to execute the document (ie, to contact the landlord and schedule a day/time for the eviction). The tenant is given 72 hours notice prior to the eviction.
- At the eviction, a landlord can do one of two things:
- place all the tenant’s belongings on the street and change the locks. It is the landlord’s burden to bring a locksmith and enough people to move the property in question; or
- within 24 hours of the scheduled eviction, the landlord may simply change the locks and give the tenant 24 hours to collect its property, failing which the landlord may take possession of the belongings and sell or destroy them.
For more information on the foregoing, see, inter alia, Va. Code § 8.01-174 et seq., Va. Code §§ 8.01-470 et seq., and Va. Code §55-237.1.