Landlord, Tenant, Rent, Rentals, Unlawful Retainer, Tenant Defaults, Unlawful Detainer Defaults.
What To Do When… You’re a Landlord with Tenant Issues.
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See Related Podcast – WTDW Podcast | Episode 30: What To Do When… You Have Tenant Issues.
WTDW Podcast | Episode 51: What To Do When… You’re a Landlord with Tenant Issues.
The objective of the What To Do When… podcast is to discuss common legal scenarios faced by everyday citizens in Virginia. Critzer and Cardani practice law throughout Virginia and focus their practice around the state’s capital of Richmond, in the Piedmont region. Tune in and subscribe to learn about legal topics such as reckless driving by speeding, bad lawyers, Will Knows Weed, juvenile defense, juvenile sex crimes, reckless driving, the legalization of marijuana in Virginia, divorce 101, Child Support, and others.
What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 0:29
Hello, and welcome to another episode of ‘What To Do When…’ a podcast of Critzer Cardani. I’m here with Will today, how are you doing Will?
Will Smith III 0:36
Doing well, Scott, how are you?
Scott Cardani 0:37
I’m doing well. What’s on the docket for today Will?
Will Smith III 0:40
Scott, we’re discussing landlord tenant issues.
Scott Cardani 0:43
So what to do when you’re a landlord or what to do when you’re a tenant, or both?
Will Smith III 0:47
This particular podcast is directed towards those landlords out there and what to do when you have a tenant who is either not paying or it’s broken some portion of their lease.
Scott Cardani 0:56
Well, isn’t it pretty true that COVID really tripped this whole process out and really changed everything?
Will Smith III 1:02
Yeah, we had about a two year hold on evictions in the state of Virginia. Wow. There were some exceptions where you kind of get around. But yeah, for the most part, we have landlords that, you know, had issues with tenant paying and you know, a lot of landlords are paying mortgages or have to pay back a bank for a loan or whatever the case may be, and so they weren’t getting paid, but then they had no recourse when they had tenants who weren’t paying their their rent.
Scott Cardani 1:25
That’s it. That’s an ugly side. It was nobody really sees the landlord’s always considered a bad guy, but a lot in a way. And we know there’s some slumlords and people really take advantage. But there’s also just normal everyday people this their business, and they’re relying on that rent, like you said, to pay that mortgage. So you know, that’s where we are. So what do you wanna tell us about landlords today?
Will Smith III 1:44
One of the main things that I think that landlords need to know the number one thing that landlords need to know, you can’t just kick somebody out, because you want to.
Scott Cardani 1:50
Will Smith III 1:51
Yeah, I mean, you might not like them, or you might not, you know, like their family that they have.
Scott Cardani 1:55
Wait a minute… My son, Caleb Cardani, he’s, he’s living in my basement, I can’t just kick them out if I want to?
Will Smith III 2:00
Well, is he paying rent?
Scott Cardani 2:02
He’s paying rent.
Will Smith III 2:02
You can’t just kick them out then.
Scott Cardani 2:04
But he’s only paying like, $25.
Will Smith III 2:06
Mommy, so maybe it is I mean, as far as he is paying something, you know, he’s going to be protected under the laws of the state, you know, when it comes to landlord tenant.
So explain that to them. So as long as they’re paying, right, it doesn’t matter the amount, correct?
That’s correct. I mean, if they are paying, I mean, you might want to say that it’s fair value for whatever the space is, but I mean, who determines that?
Scott Cardani 2:25
Okay, does it matter if you have a contract doesn’t matter if you have a contract. So and that’s, I think that’s a big misnomer to people. So, for instance, and we’re just using Caleb as a kind of a joke today. But as Caleb listens somewhere else, anyways. He’s in our basement, we were nice enough to rent a space for $25 a month, but you know what? He’s not paying. He’s not obeying the general rules of the property, so to speak. So we want to move him out. So I never did a contract with him. I just said, yeah, you can live in the basement $25 a month. And he said, I’m not moving dad. So what do I have to do is the landlord?
Will Smith III 3:03
Well – So, he’s paying on a monthly basis. Then under the law, what you’re required to do is give them a 30 day notice, okay, so if he’s paying every 30 days, and it’s 30 day, notice he’s paying every week, and it’s a seven day notice, it depends on the course of action that both of you are take.
Scott Cardani 3:17
Frequency of payment is really the standard.
Will Smith III 3:20
That’s the big standard that we’re looking at, especially when we don’t have a lease in place.
Scott Cardani 3:23
Okay. And if the lease is in place, obviously folks who follow the lease whatever that says.
Will Smith III 3:27
Y if you’re a landlord, and you have, you know, one, one rental property or 100 rental properties, you know, I think general rule of thumb is to make sure that you have something written in place that you know what your recourse is, in the event that your tenant isn’t doing what they’re supposed to be doing.
Scott Cardani 3:42
And you can help people with that part of it too, just so we’re clear, you brought that up. But as far as drafting leases, and preparing leases, and even looking over somebody’s lease to say, because you’re going to court all the time on these, you know, it’s going to fly and what’s not going to fly, correct?
Will Smith III 3:54
That’s right. So I mean, I’ve done a number of commercial leases, residential leases, I’ve reviewed them from for clients in anything that they need and just to make sure that they’re protected in the event that their landlord, I mean, that their tenant defaults.
Alright – so we’re back, Caleb in the basement, I want him out. Come to you. And what what’s my first step as a landlord?
So again, don’t just throw stuff outside and say, Hey, you can’t live here anymore, okay? Because they are able to come back at you. But the first thing you have to do is give them notice. And so notice that you know, you haven’t paid your rent, and if you don’t pay within a month using the Caleb’s example, then you will take the necessary steps by filing with the court to then so that eviction process.
Scott Cardani 4:34
Has to be formal in writing Correct? I can’t Yes. Can it be an email?
Will Smith III 4:38
It can be email if that’s the way that you normally communicate? The key is normally communicate normal communication can be it can be a text message. Yeah. But if you don’t normally communicate in any other way than in person, then the best way to wait to handle it is to put a letter in the mail and or put a letter you know, at their door and say, Hey, here’s the deal. You have a month right now to pay your rent or I’m going to file with the court.
Scott Cardani 4:58
So yeah, have to wait a month. And so that 30 days run, I’ve still got Caleb in the basement, I still got no payment from Caleb, what do I do next?
Will Smith III 5:06
Next step is then go ahead and file what is called an unlawful detainer. With the district court in the jurisdiction in which the rental property is.
Scott Cardani 5:13
Is that notice called? Let me back up one quick because I want to make sure I have it right, the notice that you have to give what’s called a pay or quit notice, right?
Will Smith III 5:19
Standard notice that we’re going to give a tenant is a pay or quit notice.
Scott Cardani 5:23
And that’s that letter saying, Hey, you haven’t paid you need to pay within 30 days or you’re out?
Will Smith III 5:27
You have $25 or $50, you know, you owe, two or three months rent.
Scott Cardani 5:31
And that’s the word pay or quit, quit the lease or pay? So that’s where Okay, so sorry, I want to make sure we have that. Because people hear those words. Sometimes I have no idea what it means.
Will Smith III 5:39
So sure, yeah.
Scott Cardani 5:40
Moving on. We’re going to file the court what’s called an unlawful detainer.
Will Smith III 5:44
Unlawful detainer – you’re going to file with the court. Typically, the courts are giving you about a 21 day turnaround before you’re able to get before a judge. So that unlawful detainer summons will be served on the defendant, notifying them of their court date. If they’re come with at that court date, they have the ability to say I don’t owe this money. Or they can say yes, I do. And so the judge can then take action on that first return date.
Scott Cardani 6:08
Okay. And so folks, just so you understand, generally state court is an interesting thing, when you show up first hearing, you’re not always going to have a trial, that first hearing if the person who you’re bringing to court is going to contest the fact that they owe money, then the court is going to set that down for a later trial date. If they don’t contest in other words, they say, Yeah, I’m the money, then the judge is going to end it right there. Enter the amount. And what’s the next step?
Will Smith III 6:31
Well, if so, in the latter situation, if they say this is the amount. You know, the judgment that you receive as landlord, they will also give you possession of the premises.
Scott Cardani 6:42
Do you have to file a separate notice for possession? No, you don’t. Okay, I don’t.
Will Smith III 6:45
It’s all part of the same unlawful detainer hearing. So, in the other instance, though, when people are contesting and saying I don’t know, this money, or, you know, whatever the case, may be, my landlord has violated the lease agreement, then what the court will do will set it out for contested trial on a later date. And then at that later date, the judge will make that decision whether or not, you know, you have, you know, defaulted? Or if you know, if you haven’t, you know, we’ll decided that
Scott Cardani 7:12
Well, how do you get it if there’s say we get to that stage of the trial, or you use you admit to in court, but there’s I’m still claiming Caleb tore up my basement man told that he broke the toilet. You know, he didn’t ever clean the sink, it’s just I have to replace the sink.
Will Smith III 7:30
Well, we have an example that you’re giving, I mean, that’s why I think it’s so important to have a lease agreement. Because your lease agreement will spell out if the damage is more than just normal wear and tear, then, you know, you could be on the hook for it, or your your security deposit will be applied to where we come after you for the rest of it. But you have the ability to still recover any damages that you suffer as a result of damages.
Scott Cardani 7:52
Is there a separate filing you had to do to do that?
Will Smith III 7:54
It depends it can be made part of the same filing. If you’re saying but a lot of times we don’t know yet, right? Because we the tenant is still in the in the premises. And so we’re in a boring part is possession. Right? So the main thing is getting possession. And then you can file after the fact if you realize, well, this toilets broken, he broke this window, he did this, you know, whatever the case may be. So a lot of times it’s going to be a separate action, you fall for those damages. But yeah, if you’re aware of it, because I know I have had clients who have had exterior damage to the premises that was caused by a tenant. And so we included that as part of the the money we were seeking as part of that case.
Scott Cardani 8:30
Is there a specific thing that’s called when you follow that with the court for that damages?
Will Smith III 8:34
Warrant of debt. Okay, same way as you would for any other case where where there’d be a breach of contract or something else?
Scott Cardani 8:39
All right. What else can you tell the people / landlords that they need to know right now?
Will Smith III 8:44
So one other thing is that once you get that judgment, right, where you get possession, or where you get the money judgment in your favor, the tenant has 10 days to appeal it, okay. In most cases now, and especially because of the two year halt that we had on evictions, where if you got judgment, the judge wouldn’t send an appeal bond. But nowadays, if you get a $5,000 judgment, the judge is going to set a $5,000 appeal bond in the event that the tenant wants to appeal it. After that 10 days is run, the tenant is still in the in the rental property, then you can go to the court get what’s called a writ of eviction. Writ of eviction just states that, you know, judge gave me possession of this of this property 10 days ago. Now we’re asking the sheriff’s office and whatever jurisdiction you’re going to go out, give this tenant notice they have 72 hours to leave. And if they don’t leave within that period of time on whenever the return date is the sheriff’s deputies will help you with your stuff and help you move out.
Scott Cardani 9:43
That’s the time you that stuff gets moved out in a court out on the curb, so to speak and left. Yes, so these these terms are, you know, these Latin terms writ, you know, and all these kind of things, but really, it’s just a word that means Look, you’re gonna get that possession but you’re also going to get help to get people out.
Will Smith III 10:00
Scott Cardani 10:00
And so that’s really important to know. Appeal bond, you kind of went over that fast. But I think this is really important for people and landlords to know. If you’re in court, you need to make sure and this is why you really want to hire somebody, like Will or our firm for this kind of stuff. But that’s an important thing that sometimes judges don’t remember to do. You know, and the guy wants to appeal it, and you want to set that you want to make sure that appeal bond set for that amount, because, number one, it keeps frivolous appeals from happening.
Will Smith III 10:25
Right, delaying the process even more.
Scott Cardani 10:27
Yeah. Number two, your money’s kind of secured in the court. So it’s there. If they really want to appeal it, and they have a good issue, that’s fine. But the money is there, the court so you don’t have to go back after them to find it. So the appeal bond is a really can be a really good tool, the court used properly. I think sometimes it’s not. But as a rule, that’s something as a good practitioner, we were going to help you through and help you get. So even if they appeal it you is there any attorneys fees or anything like that you can get as a landlord?
Will Smith III 10:54
So it depends, okay, if, if you’re trying to have somebody removed, but you’re not asking for any money, if you’re just saying like I want this person out, then typically under the Code Well, under the code, it says no, the judge has some discretion. But in most cases like that, the judge isn’t going to give you any attorneys fees. If you have a lease agreement, almost every lease agreement that I have prepared for clients, including attorneys, attorneys fees in the event that we have to litigate a landlord tenant issue.
Scott Cardani 11:20
And again – folks, that’s why it’s so important to have a lawyer involved, especially you’re gonna get a miss as a business and you don’t know what you’re doing. There’s all kinds of leases online, and I’m not gonna lie to you, there’s rocket and whatever, lawyers and all kinds of stuff. But you want somebody who’s going to personally tailor this to you what your needs are, and really talk you through all the ups and downs ins and outs of this. So you’re when you do and you will, if you’re going to be a landlord, you’re going to be in this situation where Caleb’s in your basement, and you can’t get them out. And you got to walk that through. And if you’ve got all the steps in that written document of how you’re going to execute all this, then Caleb’s contentions really fall short. And he usually is going to lose that case. Whereas if it’s an oral contract, you know, there’s a lot more wiggle room there. So it’s really important that you do this, right. Anything else you want to say Will?
Will Smith III 12:04
Well, I wanted to say something of as far as you’re touching on going online, I mean, I’ve had more than one client, actually multiple clients who have prepared their own lease agreement. And then they have a tenant issue, you know, where they said the tenant has breached the lease. And then you look at the lease, and you realize, well, this lease is under California law. It says nothing about this lease is binding. And so it really is, you know, in your best interest, I mean, nobody thinks when they’re getting into these things, that they’re going to have an issue, everybody comes in and thinks everything is gonna be, you know, Rainbow rainbows and butterflies. But you know, really what it comes down to is kind of like preparing for the worst case scenario. So you know, making sure that you have a solid lease in place is going to is going to be what protects your rights as a landlord.
Scott Cardani 12:46
Alright, folks – thanks for joining us today, I hope you learned a little bit about being a landlord. Number one, we think the most important thing is to make sure that you have it in writing and that you know what you’re doing. Number two, remember that this is a court process, and you can’t really just throw somebody out. And they can create all kinds of problems with damage property and all kinds of things. And number three, remember, we’re here for you. These are very important issues and the better the better job you do up front with the lease itself, the better you’re going to be in the long process of this. And when you do run into trouble, which most likely you will, can be really an easy trouble or a hard trouble depending on how you handle it.
Will Smith III 13:24
Scott Cardani 13:24
Thanks again like and subscribe and we’ll be talking to you soon. Thank you.
Will Smith III 13:28
What To Do When… Outro 13:29
We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
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