DATE: Saturday, May 10, 1997                TAG: 9705080250

SECTION: REAL ESTATE WEEKLY      PAGE: 11   EDITION: FINAL 

COLUMN: LANDLORDS & TENANTS 

SOURCE: Greg McCracken

                                            LENGTH:   55 lines

EVICTION IS COURT-ORDERED

I have recently received a number of questions about what happens when a landlord is granted possession of the premises by the General District Court. The questions range from ``How long does the tenant have to get out?'' to ``What does the landlord have to do to get them out?''

I will attempt to give an overview of the law and the obligations of each party once the landlord has been given possession by the court.

The order granting the landlord possession generally is not final until 10 days after it is entered. This is because the tenant has 10 days to appeal the General District Court order to the Circuit Court. However, in situations whereby the landlord can prove the tenant has caused or will cause damage to the premises, the landlord can be granted immediate possession.

Once the order becomes final, whether after 10 days or immediately, the landlord must file for and receive a writ of possession from the clerk of the General District Court where the possession order was entered.

The writ of possession is a document served on a tenant by the sheriff's office that gives the tenant notice that he is being evicted.

It must be executed by the sheriff's office within 30 days of its issuance. By statute, the writ has to be served 72 hours before the scheduled eviction and must notify the tenant of the date and time of the eviction.

If the tenant has not vacated the premises on the date of the eviction, the landlord, accompanied by a representative from the sheriff's office, can proceed to evict the tenant.

It is not the function of the sheriff's office to conduct the eviction, but to oversee the landlord's method of entry into the premises (usually a locksmith retained by the landlord) and to maintain peace between the parties.

Once the landlord gains entry, the tenant's personal property can be placed in a public right of way as abandoned if the tenant is at home. If the tenant is not at home, the property must be placed in storage at the tenant's expense. If the personal property is placed in storage, the sheriff's office makes the moving and storage arrangements.

If the tenant does not claim the property within 30 days, it is sold at a sheriff's sale and the money from the sale is applied first to the moving and storage fees and then to other lien holders in order of priority.

It is important to remember that under the Virginia Residential Landlord Tenant Act, a landlord may not use ``self-help'' remedies, such as locking the tenant out of the premises without first having an order of possession from the court.

If the landlord violates the VRLTA by changing the locks or cutting off essential services, the tenant may bring suit against the landlord to recover possession of the premises, terminate the lease and recover any actual damages sustained and, in some instances, reasonable attorney's fees. 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).

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