Writ of Possession in Unlawful Detainer:
(8.01 - 470 & 472 code of Virginia) The Writ of Possession in Unlawful Detainer is a court order authorizing the Sheriff to physically remove a person and his belongings from a 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.
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, 2000, 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 be requested after scheduling the eviction. This will be discussed in detail later. (8.01 - 470, 471 code of Virginia)
At the time the landlord requests issuance of the Writ of Possession, he may also request a Writ of Fieri Facias to cover any damages and cost. Our office does not usually recommend this procedure because the property levied upon will be placed on the nearest public right away during the eviction, thus resulting in possible loss of levied property. We would recommend a levy at the time of eviction only if the tenant were present. At that time, the Deputy would inventory the property and inform the tenant that he must notify the plaintiff and our office of the location of the levied property. Failure to notify our office could result in prosecution under 18.2 - 101 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 appeals period and
the 72 hour notice are covered under two different code sections.
The Writ of Possession will be held in the General District
Court Clerk's Office until the ten (10) day appeals period
has expired. 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 clerk's office at least twice 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.
Note:
When the court grants an immediate Writ of Possession to the
landlord, this, in no way, waives the tenant's right to 72
Hours Notice under 8.01-470.
After the Writ is
entered into our computer, a staff member 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 him for scheduling.
Once a mutually agreeable time and date has been set, a staff member 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 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 effected and would have to be directed to the owner's home address, and other remedies may be available to the landlord.
Code of Virginia
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.)
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.
Duties
of the Landlord
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 taken action 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 Salem Police Department.
Trailer Evictions:
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, thus all personal property inside the trailer will be moved to the nearest public right of way.
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.
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 Salem Police Department'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
