Generally speaking, there are three steps to an eviction:
1. Notice - There are two kinds of notices - a 5-day notice (§55-248.34:1) for non-payment of rent and a 30-day (§55-248.31) notice for a lease violation. These notices can be served by the Warren County Sheriff’s Office or mailed to the renter by certified mail, return receipt requested.
2. Summons for Unlawful Detainer (§8.01-28) - Once the 5-day or 30-day notice has expired, you need to take a copy of your notice to Warren County General District Court and request a Summons for Unlawful Detainer. At that time, the court clerk will issue you a court date and the defendant will be served a copy of the summons by the sheriff.
3. Writ of Possession in Unlawful Detainer (§8.01-470 & 472) - If the judge awards in the landlords favor, a Writ of possession will be issued.
WRIT OF POSSESSION IN UNLAWFUL DETAINER
(§8.01-470 & 472) The Writ of Possession in Unlawful Detainer is a court order authorizing the Sheriff to physically remove a person and his belongings from the premises and to return possession to the landlord. Usually the court will not issue the Writ of Possession until the appeal period has lapsed. The appeal period is ten (10) days except where the landlord has asked for and the judge grants immediate possession at the hearing. The 10-day appeal period is then waived. (§8.01-129) There are certain qualifications which must be met in order to obtain a wavier of the appeal period, and it strongly suggested consulting an attorney for additional information.
Do not confuse the waiver of the appeal period to mean waiver of the 72 Hour Notice, which will be covered later.
This Writ gives the Sheriff (30) thirty days in which to execute, however, our office expedites these processes since each day the tenant remains on the property the greater the loss by the landlord. Effective July 1, 2000, the code, §8.01-470, has been modified to read, (A). The execution of the writ of possession by the sheriff should occur within fifteen (15) calendar days from the date the writ is received by the sheriff, or as soon as practicable thereafter, but in no event later than thirty (30) days from the date the writ of possession was issued. While this change speeds up the eviction process, it allows for discretion as well. It is important for the landlord to remember the date the Writ was issued should a postponement be requested after scheduling the eviction.
72 Hour Notice:
The 72-hour notice is not to be confused with the 10-day appeal period. Many landlords confuse the waiver of the 10-day appeal period to mean the 72 Hour Notice has also been waived, thereby, expecting the Sheriff to execute the Writ the moment he receives it. The codes relating to the10-day appeal period and the 72 Hour Notice are covered under two different code sections. Therefore, unless the judge, in writing, waives the 72 Hour Notice to the tenant, the Sheriff must follow the code. The moment the Sheriff receives the Writ from the court, the Writ is entered into a computer database. The Sheriff has no control over how long it takes a Writ to come down from the court to his office. Processes are picked up from the Courts at least once per day as mandated by Virginia Code. After entering the Writ of Possession into the computer database, the Deputy assigned will call the landlord to arrange the eviction date and time. Therefore, it is important the landlord write all phone numbers on the Writ so that the Sheriff can contact him for scheduling. Once a time has been set, the Sheriff will prepare the 72-HOUR NOTICE TO VACATE to serve on the tenant. The date and time of the eviction must be noted on the form. Pursuant to §8.01-470, the notice must be served according to the laws relating to service of process.
Postponement and Cancellation of Scheduled Eviction:
The Sheriff reserves the right to postpone a scheduled eviction due to inclement weather or in the event of an emergency. If it is raining, snowing, or high winds, then the eviction will be postponed and rescheduled for another day. No additional fees will be required if the Sheriff postpones the eviction due to inclement weather or an emergency.
Duties of the Landlord:
Arrive on time. The deputy will wait about 15 minutes if the landlord is running late. However, after 15 minutes the deputy will leave the scene. Communication is the key here. Let the Sheriff know if there is an emergency situation. The deputy will try to work with the landlord but he will not wait any longer than 15 minutes if we have not heard from the landlord. If the landlord wants assistance by the Sheriff, the landlord or his agents must not enter the dwelling until the deputy has arrived. Entering before the deputy has arrived may result in the Sheriff canceling the Writ and no performance of the eviction. This is done to ensure both the landlord’s safety and the safety of the deputy, but moreover, to limit liability to the Sheriff and the landlord by false accusations made by disgruntled tenants. If the landlord starts moving property out before the Sheriff arrives, he cannot ensure the eviction has been done in a lawful manner. The landlord should not take any action without the assistance of the Sheriff. Any knowledge the landlord can provide about the tenant is helpful to the deputy. It is important for the Sheriff to know if the tenant may have any weapons in the dwelling, or if the tenant has been arrested for assault, or believed to be dealing drugs. Incidental information, such as inoperative cars, pets, waterbeds, and juveniles left alone is also important because they can prolong the eviction and may necessitate additional preparation by the landlord or sheriff (animal control). If the landlord knows the tenant has changed the locks, the landlord may want to have a locksmith available at the appointed time. The landlord must supply sufficient personnel (movers) to allow speedy removal of the property. The deputy, at his discretion, can cancel the eviction for lack of sufficient personnel. If the eviction is canceled for lack of sufficient personnel, the landlord may be required to pay additional fees for the service of the new writ. We usually recommend at least three to five people depending upon the amount of property inside.
THE DEPUTY IS THERE ONLY TO MAINTAIN PEACE AND TO PROTECT THE PUBLIC FROM HARMFUL OBJECTS.
The wise landlord should come prepared with tools (hammer, screwdrivers, etc.) and boxes or bags in which to place loose items. Dangerous household hazardous materials or chemicals will not be placed at the curb and it will be the duty of the landlord to properly dispose of those materials. Other objects, which could be considered dangerous to the public, will be confiscated by the deputy and brought into the office after inventory of the items, i.e., guns, knives, prescription medication and paraphernalia, and urns. While the Virginia code does not require the landlord to change the locks after completion of the eviction, the landlord may want to consider doing so.
TO THE TENANT:
On the day of the scheduled eviction, all property will either be placed to the nearest public way or placed in a designated storage area, which can be the dwelling unit. Should the tenant leave any pets, they will be removed by animal control. Pets may be recovered by contacting the Warren County Animal Control by phone at 540-635-4128. Any dangerous properties, (i.e., guns, knives, prescription medications, etc.) seized may be recovered from the Sheriff’s Office by contacting the office within 24 hours of the execution of the writ. Identification will be required before release of any property, and only the tenant listed on the Writ can pick up the property. If the tenant cannot be present when the eviction takes place, the tenant may want to have someone whom they trust there to protect their property. The Sheriff can only ensure the safety of the tenant’s property while he is there. Once the Sheriff leaves, he is no longer responsible for the tenants property. In the event there are children home at the time of the eviction without an adult, the Department of Social Services will be contacted.
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