VIRGINIA – “Yes,” With Limitations

A landlord who desires to regain possession of his property from one who is wrongfully in possession, may initiate an action for unlawful detainer in the General District Court of the county where the property is located.

Residential landlords are required to file an eviction lawsuit (unlawful detainer) and receive a court order before evicting a tenant; however, commercial landlords have an additional option they may utilize: self-help. Self-help refers to the actions a landlord may take to forcefully remove a tenant from rental property without first initiating a formal lawsuit for possession.

Under Virginia’s common law, this self-help permission was quite broad, generally allowing a landlord entitled to possession to use “reasonable force as was necessary, short of that which threatened death or serious bodily harm.” Shorter v. Shelton, 183 Va. 819, 819 (Va. 1945). One can see how easily a situation might escalate under the common law self-help option. Virginia ultimately enacted statutory guidelines, without divesting landlords of this right, but providing some limiting language: self-help action is available, so long as the landlord “does not incite a breach of the peace.” Va. Code Ann. §55-225. (See footnote)

Shorter, the authority on the self-help option for almost 80 years, remains the guiding standard when it comes to a non-residential landlord’s self-help actions, holding that “the real owner of premises, having a right of entry, will not commit a trespass by entering, though with force, unless he also commit a breach of the peace,” Id. at 820.

In Shorter, the landlord sought to move the tenant from her unit to another location on the premises. The Landlord, after knocking on the tenant’s door and the tenant opening it, placed his foot in the opening to prevent the tenant from closing it. The landlord then entered the room and his assistants physically moved the tenant’s possessions to the new location while the tenant stood by. Although the court held that this did not violate the applicable statute, nowadays, most landlords take a simpler approach when exercising self help, such as changing the locks during the tenant’s non-business hours, or shutting off utilities.

Litigation can be costly—both in time and expense—and a landlord might choose to exercise its self-help option to avoid these expenditures. But there are serious risks that accompany self-help eviction, which should be considered before moving forward in this manner. If self-help is conducted improperly, if there is no basis for eviction, or if the landlord’s actions violate the lease terms, a landlord could face fines, criminal charges, a counter suit for loss or damage to the tenant’s property, or a suit by the tenant to regain possession of property wrongfully taken.

There are many things to consider when proceeding to evict a defaulting tenant and a commercial landlord would be wise to consult legal counsel prior to initiating an eviction, either through self-help means, or through the formal process of filing an unlawful detainer suit.

In an upcoming issue of our newsletter, we will cover the use of self-help premises recovery in Maryland. If you have any questions about this article, or about evictions in general, please contact Denise Reverski (dreverski@setlifflaw.com) at 804-377-1272 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.

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1 It should be noted that the lease language is controlling and self-help is not available if the lease specifically prohibits it. Additionally, a landlord who exercises self-help also must comply with the statutory notice requirements.