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Civil Process Procedures
The material provided here is meant only as an example and a general overview of the eviction process. This information shall not be considered legal advice. Each situation is different and no one explanation can cover every situation. For specific information please consult the Code of Virginia, or for legal advice please consult an attorney.
Eviction Procedure Overview
The following is not be considered legal advice. It is recommended that owners of rental property obtain a copy of the applicable law. (for most landlords Code of Virginia 55-248.2-55-248.40) The Code of Virginia (COV) is available in libraries and on the internet and is updated each July 1. Seek the advice of an attorney if necessary.
- To begin the process the landlord must give written notice to the tenant advising the tenant he is in violation of the lease. If the violation is failure to pay rent, notice must be served on the tenant giving the tenant 5 days to pay or be subject to termination of the lease or eviction.
- If the violation has not been corrected, the landlord may obtain a Summons for Unlawful Detainer from the clerk of the General District Court requesting a judgement for the right to evict and for money owed. It must be served by the Sheriff or a process server at least 10 days before the court date and a copy must be mailed by the landlord to the tenant (also 10 days prior).
- On the court date, present to the judge the lease, copy of the notice and the rend ledger. (Copies may be left with the court).
- If judgement is granted, the landlord may obtain a writ of eviction from the clerk after 10 days for the judgement date.
- Upon receiving the writ, the Sheriff sets a date for eviction and gives the tenant at least 72 hours’ notice.
- On the date of the eviction, the Sheriff supervises the process and keeps it peaceful. The landlord is responsible for locking out the tenant or removing the tenant’s property (and should bring persons, boxes, bags, etc. to do so). Or in either case the tenant has the right to collect his personal property within 24 hours of the eviction. (If the tenant is locked out, the landlord must provide reasonable access to the tenant)
- If the eviction is delayed for any reason, an additional 72-hour notice must be given
Writ of Eviction in Unlawful Detainer
(8.01 – 470 & 472 Code of Virginia) The Writ of Eviction (eff July 1, 2019) in Unlawful Detainer is a court order authorizing the sheriff to physically remove a person and his belongings from a premise 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.
Time Period for Executing Writ
This Writ gives the Sheriff thirty (30) 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, 2020, this code, 8.01-470, has been modified to read, “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 to remember the date the Writ was issued should a postponement by requested after scheduling the eviction. This will be discussed in detail later. (8.01 – 470, 471 code of Virginia)
72 Hour Notice
The 72-hour notice is not to be confused with the ten (10) day appeal period. The codes relating to the ten (10) day appeal period and the 72-hour notice are covered under two different code sections. The Writ of Eviction will be held in the General District Court Clerk's Office until the ten (10) day appeal period has expired. The Sheriff has no control over how long it takes a Writ to come down from the court to the Sheriff's office. Processes are picked up from the clerk's office at least once a day and the moment the Sheriff receives the Writ from the court, the Writ is marked with the date and time. The Writ is then entered into our computer system.
After the Writ is entered into our computer, a Civil Process Deputy with the Office of the Sheriff will call the landlord to arrange the eviction date and time. Therefore, it is important the landlord write any and all phone numbers on the Writ so that the Sheriff's Office can contact for scheduling.
Once a mutually agreeable time and date has been set, the Records Clerk will prepare the "72-hour Notice to Vacate" which is issued by the Sheriff. The date and time of the eviction must be noted on the form. The notice is then given to the Civil Process Deputy for service. Pursuant to 8.01 - 470, code of Virginia, the notice must be served according to the laws relating to service of process. This is especially important if the landlord is trying to evict a business where the owner has left property inside but is no longer operating the business. If this should occur, the landlord may want to consult an attorney because service at the business cannot be affected and would have to be directed to the owner's home address, and other remedies may be available to the landlord.
Code of Virginia 55-237.1
Title 55 Property and Conveyances
Chapter 13 Landlord and Tenant
§ 55-237.1. Authority of sheriffs to store and sell personal property removed from residential premises; recovery of possession by owner; disposition or sale.
Notwithstanding the provisions of § 8.01-156, when personal property is removed from a residential premises pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from the premises in order to restore such premises to the person entitled thereto, the sheriff shall cause such personal property to be placed into the public way. The tenant shall have the right to remove his personal property from the public way during the twenty-four-hour period after eviction. Upon the expiration of the twenty-four-hour period after eviction, the landlord shall remove, or dispose of, any such personal property remaining in the public way.
At the landlord's request, the sheriff shall cause such personal property to be placed into a storage area designated by the landlord, which may be the dwelling unit. The tenant shall have the right to remove his personal property from the landlord's designated storage area at reasonable times during the twenty-four hours after eviction from the premises or at such other reasonable times until the landlord has disposed of the property as provided herein. During that twenty-four-hour period and until the landlord disposes of the remaining personal property of the tenant, the landlord and the sheriff shall not have any liability for the loss of such personal property. If the landlord fails to allow reasonable access to the tenant to remove his personal property as provided herein, the tenant shall have a right to injunctive relief and such other relief as may be provided by law.
Any property remaining in the landlord's storage area upon the expiration of the twenty-four-hour period after eviction may be disposed of by the landlord as the landlord sees fit or appropriate. If the landlord receives any funds from any sale of such remaining property, the landlord shall pay such funds to the account of the tenant and apply same to any amounts due the landlord by the tenant, including the reasonable costs incurred by the landlord in the eviction process described in this section or the reasonable costs incurred by the landlord in selling or storing such property. If any funds are remaining after application, the remaining funds shall be treated as security deposit under applicable law.
The notice posted by the sheriff setting the date and time of the eviction, pursuant to § 8.01-470, shall provide notice to the tenant of the rights afforded to tenants in this section and shall include in the said notice a copy of this statute attached to, or made a part of, this notice.
(2001, c. 222.)
Duties of the Landlord – ‘Lock Out’ 55.237.1
The responsibilities of the landlord vary and are specific to the type of eviction to be performed.
According to the Code of Virginia 55-237.1, you have turned this dwelling, (house or apartment) into a Temporary Storage Area. You now have possession of the dwelling, but any property remaining is still the property of the tenant. The following is a brief outline of what your responsibilities are for the remainder of this process.
According to COV 55-237.1 The tenant shall have the right to remove his personal property from the landlords designated storage area at reasonable times during the twenty-four hour period and until the landlord disposes of the remaining personal property of the tenant...It is mandated that you cannot remove any of their property during the 24 hours following the eviction. You must provide them reasonable access to the property, only to allow them to remove their personal property.
According to COV 55-237.1 Any property remaining in the landlord’s storage area upon the expiration of the twenty-four-hour period after the eviction may be disposed of by the landlord as the landlords sees fit or appropriate. After the 24-hour period following the eviction has expired you have the right to dispose of the tenant’s personal property. Remember that even after the 24-hour period has elapsed, as long as the tenant’s personal property remains in the dwelling, they must be given reasonable access to allow them to remove their property.
According to COV 55-237.1 If the landlord fails to allow reasonable access to the tenant to remove his personal property as provided herein, the tenant shall have a right to injunctive relief and such other relief as may be provided by law. The tenant only has a right to remove their property but failing to give them access may result in further court action taken against you.
The code only allows the tenant access to the dwelling to remove their property. If the tenant attempts to stay in the property this becomes a trespassing issue. If this occurs, please notify the Police or the Sheriff's Office.
Code of Virginia 8.01-470 & 8.01-156
§ 8.01-470. Writs on judgments for specific property.
On a judgment for the recovery of specific property, real or personal, a writ of possession may issue for the specific property, which shall conform to the judgment as to the description of the property and the estate, title and interest recovered, and there may also be issued a writ of fieri facias for the damages or profits and costs. In cases of unlawful entry and detainer and of ejectment, the officer to whom a writ of possession has been delivered to be executed shall, at least 72 hours before execution, serve notice of intent to execute, including the date and time of execution, as well as the rights afforded to tenants in §§ 55-237.1 and 55-248.38:2, together with a copy of the writ attached, on the defendant in person or, if the party to be served is not found at the specific property for which a writ of possession has been issued, then service shall be effected by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such property. The execution of the writ of possession by the sheriff should occur within 15 calendar days from the date the writ of possession is received by the sheriff, or as soon as practicable thereafter, but in no event later than 30 days from the date the writ of possession is issued. In cases of unlawful entry and detainer and of ejectment, whenever the officer to whom a writ of possession has been delivered to be executed finds the premises locked, he may, after declaring at the door the cause of his coming and demanding to have the door opened, employ reasonable and necessary force to break and enter the door and put the plaintiff in possession. The execution of the writ of possession shall be effective against the tenants named in the writ of possession and their authorized occupants, guests or invitees, and any trespassers in the premises. And an officer having a writ of possession for specific personal property, if he finds locked or fastened the building or place wherein he has reasonable cause to believe the property specified in the writ is located, may in the daytime, after notice to the defendant, his agent or bailee, break and enter such building or place for the purpose of executing such writ.
(Code 1950, § 8-402; 1977, c. 617; 1991, c. 503; 2000, c. 640; 2001, c. 222; 2003, c. 259; 2007, c. 128.)
§ 8.01-156. Authority of sheriffs, etc., to store and sell personal property removed from premises; recovery of possession by owner; disposition or sale.
In any county or city, when personal property is removed from premises pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from premises in order to restore such premises to the person entitled thereto, the sheriff shall oversee the removal of such personal property and it shall be placed in a storage area designated by the governing body of the county or city if such an area has been so designated, or, in the case of a manufactured home, at the request of the owner of the real property, to be placed into a storage area designated by the owner of the real property which may be the manufactured home lot or other location within the manufactured home park, unless the owner of such personal property then and there removes it from the public way. The sheriff and the owner of the real property shall not have any liability for the loss of any such manufactured home remaining on the manufactured home lot, nor shall they have any liability for the loss of any removed personal property.
The owner, before obtaining possession of such personal property so placed in a storage area shall pay to the parties entitled thereto the reasonable and necessary costs incidental to such removal and storage. Should such owner fail or refuse to pay such costs within 30 days from the date of placing the property in storage, the sheriff shall, after due notice to the owner and holders of liens of record, dispose of the property by publicly advertised public sale. The proceeds from such sale shall be used to pay all costs of removal, storage, and sale, all fees and liens, and the balance of such funds shall be paid to the person entitled thereto. Should the cost of removal and storage exceed the proceeds realized from such sale the county or city shall reimburse the sheriff for such excess, except that any such excess costs related to the disposal of a manufactured home shall be paid by the owner of the real property from which the manufactured home was removed. The sheriff, in his discretion, may refuse to remove or dispose of such manufactured home until the owner of the real property pays to the sheriff the estimated cost of such removal and disposition. Subsequent to disposition, the sheriff shall reimburse the owner to the extent the actual cost is less than the estimated cost, or shall request additional payment to the extent the actual cost exceeds the estimated cost (Code 1950, § 8-825.1; 1964, c. 387; 1977, c. 617; 1992, c. 454; 1993, c. 16; 2005, c. 791; 2006, c. 129.)
Duties of the Landlord ‘Set Out’ 8.01-470 & 8.01-156
The responsibilities of the landlord vary and are specific to the type of eviction to be performed.
Arrive on time. The Deputy will wait about ten (10) minutes if the landlord is running late. However, after ten (10) minutes the Deputy will leave the scene. Communication is key here. Let the Sheriff's Office know if there is an emergency situation. The Deputy will try to work with the landlord but he will not wait any longer than ten (10) minutes if we have not heard from the landlord.
Do not enter the property before the deputy arrives. Entering before the Deputy arrives will 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 Deputy arrives, he cannot ensure the eviction has been done in a lawful manner and will back out, stating the landlord has acted without the assistance of the Sheriff.
Any knowledge the landlord has 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 important because they can prolong the eviction and may necessitate additional preparation by the landlord, the Sheriff, or 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 postpone the eviction for lack of sufficient personnel. If the eviction is postponed for lack of sufficient personnel, the landlord will be required to pay additional fees for the service of the new 72 hours’ notice. We usually recommend at least three (3) to five (5) people depending upon the amount of property inside. It is the landlord's responsibility to remove the property. 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 to the curb and it will be the duty of the landlord to properly dispose of those materials at a designated landfill. Other objects which could be considered dangerous to the public and anything of real value will be confiscated by the Deputy and brought into the office after inventory of the items, (i.e., guns, knives, pornographic materials, money, expensive jewelry, unopened alcoholic beverages, prescription medication and paraphernalia, and urns.)
While the Code of Virginia does not require the landlord to change the locks after completion of the eviction, the landlord may want to consider doing so. There have been several occasions, where after the property has been placed to the public right of way, the tenant has come back and moved everything back in. Once the eviction has been completed, the Deputy will not come back. If the tenant moves back in, it then becomes a trespass matter, which must be taken up with the Franklin County Sheriff’s Office (County) or Rocky Mount Police Department (Town Limits).
To the Tenant
On the day of the eviction, all property will be placed along the nearest public right of way. Should the tenant leave any pets, they may be recovered through the Franklin County Public Safety’s Animal Control Division. If the tenant cannot be present when the eviction takes place, the tenant may want to have someone whom they can trust be there to protect their property. The Sheriff or Deputy can only ensure the safety of the tenant's property while he is there. Once the Deputy leaves, he is no longer responsible for the property.
In the event there are children home at the time of the eviction without an adult, the Department of Social Services will be called if the tenants cannot make arrangements for supervised shelter of the children.
Postponement and Cancellation of Scheduled Eviction
Postponing the Writ can be defined as rescheduling the eviction date to another day. The landlord can postpone the eviction only once. If the first scheduled date is postponed and rescheduled to a later date and time, the 72 hour notice must be served again giving the new time and date, allowing at least an additional 72 hours’ notice to the tenant. In addition, the landlord must pay an additional $12 fee for each tenant being served with the new notice. Payment of the fee must be made before service of the second notice.
Canceling the Writ means the landlord no longer wants to evict the tenant, or the tenant has already moved out and there is no need for assistance by the Sheriff.
The Sheriff reserves the right to postpone or cancel a scheduled eviction due to inclement weather. Generally speaking, if it is raining, snowing, or there are gale force winds, then the eviction will be postponed and rescheduled for another day. The 72 hour notice must be served giving the new time and date, allowing at least an additional 72 hours notice to the tenant. No additional fee will be required if the Sheriff postpones the eviction due to weather.
Trailer Owner is Landlord but not the lot owner:
- Where the landlord requesting the eviction is not the lot owner where the trailer sits, the tenant will be treated as though they were renting an apartment.
Landlord Evicting is Lot Owner but Not Trailer Owner
- This is a complicated issue. Please contact the Sheriff's Office for detailed instructions and considerations.
Any further questions regarding evictions can be directed to Office of the Sheriff Civil Division during business hours Monday thru Friday at 540-483-3009.