THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, October 26, 1996 TAG: 9610240229
SECTION: REAL ESTATE WEEKLY PAGE: 02 EDITION: FINAL
COLUMN: LANDLORDS & TENANTS
SOURCE: Greg McCracken
LENGTH: 87 lines
Q. I have a tenant who has not paid rent in five months. I filed an unlawful detainer in July. In August, the day before the court hearing, the tenant filed bankruptcy. In the bankruptcy she filed a ``stay'' and told me I cannot evict her from the apartment, even though the lease has been canceled due to non-payment.
Am I now to believe that she can live in my apartment without paying rent until the lease ends? Also, the tenant has changed the locks. The lease prohibits her from doing this. Can I change them back? Finally, how can I get my money for all of these months, or is it a loss?
A. The automatic stay in bankruptcy stops you from trying to collect any pre-petition (due and payable before the filing of the bankruptcy) debt. Therefore, you are stayed from suing her for any rent due before the bankruptcy filing. However, you are not ``stayed'' from trying to collect rents due after the bankruptcy filing. If she wants to stay in the apartment, she must reaffirm the lease through the Bankruptcy Court and continue to abide by its terms and conditions.
Otherwise, she is in violation of the lease for not paying post-petition rent. With the permission of the Bankruptcy Court, she can be evicted. However, this is a complicated issue and I suggest you contact a bankruptcy attorney.
Whether the lease prohibits it or not, the tenant has no right to change the locks. The landlord owns the property and is entitled to access with proper notification to the tenant. Therefore, you can and should change the locks, so you can get in and out of the property.
Finally, I have no idea whether you will ever get your money, but you can pursue the pre-petition rent through the Bankruptcy Court with the help from a bankruptcy attorney.
Further, a bankruptcy attorney can work with you and your civil attorney in pursuing the post-petition rent and insuring that if this tenant does not reaffirm the lease, you can pursue the post-petition rent and eviction of the tenant without running afoul of the bankruptcy proceeding. Deposit interest
Q. I have lived in a leased townhouse for two years and have one more year to go on my lease. When I signed the lease, I gave my landlord one month's rent as a security deposit.
She only owns two rental properties. Am I entitled to three years of interest on the deposit when I leave?
A. No. The interest provision, of the Virginia Code Section 55-240.11 in the Virginia Residential Landlord Tenant Act (the ``Act'') applies to landlords who own four or more properties in a city or 10 or more outside a city.
Since your landlord owns only two properties, she is not covered by the Act. The handling of your security deposit will be governed by the terms of the lease. Deposit return
Q. My son, a college student in another city, vacated an apartment over two months ago. After he left the apartment, we had several conversations with the property management company and finally agreed upon the amount of the security deposit to be refunded to us.
I was told on Aug. 15 that the check was mailed, but it went to the apartment address which my son has just vacated. On Sept. 30, the management company told me the check was in the mail, but I have yet to receive it. What can I do to get back our security deposit?
If I must resort to a lawsuit, can I recover my legal expenses, interest due and personal expenses (long-distance charges, time expended, etc.)? How should I go about filing such an action? If I get a lawyer, will they take this case on a contingency fee or a flat fee?
A. If the property management company is not going to honor its word and send the check, your only option is to sue. If you sue, you can ask for the amount of the security deposit, your court costs, other related expenses (telephone charges and travel time), your judgment interest and your attorney's fees.
If you obtain a judgment, you will get the security deposit or portion thereof, your court costs and judgment interest, 9 percent from the date of the judgment. The other damages, telephone calls, time expended and legal fees are within the discretion of the court.
You file the action by contacting General District Court, Civil Division, in the city in which the lease was signed, where the apartment was or where the management company has an office and conducts business.
As far as fees, I am sure there are attorneys in the city you mentioned who would work with you in reaching a satisfactory fee agreement. 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