THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, June 8, 1996 TAG: 9606060291
SECTION: REAL ESTATE WEEKLY PAGE: 30 EDITION: FINAL
COLUMN: Landlords & Tenants
SOURCE: Greg McCracken
LENGTH: 62 lines
The rent comes due, but you, the landlord, don't receive it. You call the tenant, but the phone has been disconnected. You go to the property and it is empty and appears abandoned. Can you, the landlord, enter the property?
A landlord is permitted access to rental property to inspect, make repairs, decorations, alterations, improvements, supply necessary services, or to show it to prospective or actual purchasers, mortgagees, tenants.
However, before entry,you must give the tenant reasonable notice and can enter only at reasonable times. The tenant cannot unreasonably withhold consent for the landlord to enter. A landlord cannot use the right of access to harass the tenant.
In emergencies, you may enter the property without the consent of the tenant. If a tenant is absent from the premises in excess of seven days, you may enter the premises as necessary to protect your possessions and property.
In the above scenario, you should ensure the premises are secure and continue to attempt to contact the tenant. Chances are, if the place is cleaned out and the phone is disconnected, the tenant is long gone.
At that point, you can wait the seven days, re-enter the premises and attempt to re-lease it.
However, if a landlord knows the tenant has significant assets that are easily accessible, he can leave the existing lease in place and sue the tenant as rent becomes due.
This is generally not done because it is impractical. It requires you, the landlord, to bring a warrant in debt, not an unlawful detainer, once a month ($18 plus costs of service) and then to collect the judgments (more money for garnishments, etc.).
If you don't like that route, you can sit until the end of the tenancy and file for one lump sum and attempt to collect one time. If you do this, remember to give the appropriate notices to terminate the tenancy and to file an unlawful detainer for possession.
The down side of this is not many people can afford to let a piece of property lie fallow, not producing any monthly income, and the longer you wait the colder the trail gets.
If you wait the seven days to re-enter the premises with the intent to retake possession and re-lease it, the old tenancy will terminate on the date the new tenancy begins. Therefore, the old tenant would be liable for rent up until the date the new lease starts.
Although not required, it's a good idea to post a notice on the front door advising the old tenant you have re-taken possession of the premises with the intent to re-leas it.
If the old tenant happens to show up and pay the past due rent, reasonable attorney's fees, late charges and interest as set forth in the lease, then he can retain possession of the premises.
However, this must be done before trial or the first court date in any proceeding and can only be used once in any 12 month period.
Thereafter, the landlord may accept the past due rent with a reservation given in writing and still obtain an order of possession. Failure of the landlord to notify the tenant and acceptance of the rent constitutes a waiver of the breach and waives the landlord's right to terminate the lease. MEMO: Greg McCracken is a Virginia Beach lawyer. Send questions to him
at 4705 Columbus St., Virginia Beach, Va. 23462-6749. The fax number is
552-6016; e-mail, hpmv(AT)livnet.com by CNB