by Lisa Brennan
Landlord Tenant law contains many potential pitfalls for both the landlord and the tenant. At Way Law we assist both landlords and tenants. Today, we’re going to focus on things from the landlord side of things, but stay tuned. We’ll follow up with a discussion of this issue from the tenant perspective. Whether you are a landlord or a tenant, understanding an issue from multiple sides (particularly the other side) leads to more effective strategy.
Virginia law provides both landlords and tenants with various rights and obligations. Commercial landlords especially need to be aware of their rights and obligations, as there are several differences between residential and non-residential properties. Here are some questions landlords frequently ask:
What Am I Allowed to Do?
When asking whether you are allowed to do (or not do) something, one of the first places to start is to ask: “What does the lease say?”
The lease agreement itself will contain important information about your rights and obligations. A well-drafted lease agreement will address the non-payment of rent, as well as other breaches of the lease agreement. Other breaches can include things like failing to adhere to any covenants, rules or regulations. It will specifically address when a breach has occurred, how a tenant can correct it, what notices you must give and what you are allowed to do if they do not correct the problem. However, not every lease agreement is drafted with an acrimonious end in mind.
Where the lease agreement itself does not address a particular topic, Title 55.1., Chapter 14 of the Code of Virginia governs the topic non-residential tenancies in Virginia. The term “nonresidential tenancy” means the rental of any real estate for purposes other than residential use, including business, industrial, or agricultural purposes. (See § 55.1-1400)
Can I Negotiate?
Yes! Commercial tenants who find themselves struggling to pay rent often are struggling across the board. Landlords must keep in mind their own business objectives, but it can be helpful to negotiate an early end to a lease and possession of the premises with a tenant, especially where you can easily replace a non-paying tenant with a paying tenant.
Can I lock my Tenant out for Non-Payment of Rent? What Notice Do I have to give?
Unlike residential leases, a commercial tenant is allowed to lock out a tenant who fails to pay their rent when it is due through what is often called a “self-help” eviction. The landlord still MUST give a written notice to the tenant advising them to pay rent or otherwise forfeit the right to possession of the premises.
Additionally, in the event of a lock-out, the landlord must not incite a breach of the peace. In the interest of maintaining peace and preserving safety, this means that if you anticipate needing to evict a particularly antagonistic tenant, you will want to complete the lock out when they are not present. This may mean changing locks late at night when the tenant’s business is closed. Alternatively, you may want to consider evicting the tenant in court. Which brings us to the next question that frequently comes up:
Do I have to go to Court?
No. In order to regain possession of the premises, there is no requirement that you go to court. In Virginia, the court proceeding for eviction is called an “unlawful detainer.” While commercial property is not required to obtain a court order for possession, it can still be helpful to go to court for a few reasons.
An order in an unlawful detainer case means that you can then obtain a “writ of possession” from the sheriff’s office. This will allow for a sheriff or deputy to facilitate the eviction process. The sheriff’s presence ensures that there will not be a breach of the peace in recovering possession of the property.
Most importantly for landlords, however, is that an unlawful detainer action can also be an avenue to get a money judgment against the tenant for unpaid rents. A judgment may not result in immediate payment particularly against insolvent tenants. But it is helpful to have that judgment and an avenue to collect the sums you are owed either now or in the future.
What if Tenant Abandons the Property?
In a less common scenario, a tenant may abandon the property entirely. What happens then? If rent is also unpaid and the tenant leaves the property unoccupied, a landlord may post a written notice on a conspicuous part of the premises requiring the tenant to pay the rent within 10 days from the date of such notice (in the case of a monthly tenant) or within one month from the date of such notice, in the case of a yearly tenant. (See § 55.1-1414).
If the rent is not paid by the end of the notice period, the landlord may then reenter the premises and take possession and the lease terminates. The landlord is also entitled to recover rent up until the date of termination.
While no landlord and no tenant enter into their lease agreement anticipating a poor end, it is an unfortunate possibility. Should you find yourself in this situation, the tools I’ve laid out above can help. To take charge and have even greater control over your options and outcomes, contact the Way Law team today!