Self-help, Distress and the Commercial Landlord

by Jeffrey A. Duling, Esq.

Historical Remedies

At common law self-help was a powerful mechanism available to the landlord. Historically, a landlord, upon the failure of a tenant to completely meet his obligations under a lease agreement, could lockout the tenant, seize the property located within the premises and sell the seized property for the past due rent. Today's landlords, however, have lost many of these powers due to legislation.

Residential Landlords Prohibited from Self Help

Self-help remedies have been taken away from the residential landlord by Virginia Code sections 55-225.1 and 55-248.36. Specifically, section 55-248.36 specifies that "a landlord may not recover or take possession of the dwelling unit…by refusal to permit the tenant access to the unit unless such refusal is pursuant to a court order for possession." So, if you are a residential landlord you are generally limited to the unlawful detainer action to recover possession of your premises. (Trespass and ejectment actions are also available but rarely used.)

Commercial Landlords may Engage in Self-Help

Self-help remedies remain, however, and effective means of ouster for the commercial landlord. Commercial landlords may lockout a tenant for failure to pay rents in a timely fashion provided that the lease does not specify otherwise. Be very careful—most leases do specify default provisions. Additionally, a commercial landlord may not use unreasonable force or create a breach of the peace as a consequence of the action. As a general rule, if you anticipate a physical confrontation you should not attempt a self-help remedy.

The Landlord's Lien and Distress Warrant

In conjunction with retrieving possession of their premises, most landlords are also seeking payment of past due rents. The landlord's lien is a powerful mechanism to secure such payment. The landlord's lien is attached to all property on the premises at the time of default and is attached to all property which has been on the premises during the 30 days prior to default. This lien is in the amount of the unpaid rent up to the statutory cap. Six months' of rent is generally the cap on this lien except in agricultural situations where the limit is twelve months.

A lien is a powerful tool, but it does not do much good unless it is perfected. In order to enforce this lien a landlord must first obtain a judicial order. Generally, this order will take the form of a distress warrant. A landlord files a sworn petition specifying the grounds of their request for distraint. The contents of the petition will include the rent due and the justification for the issuance of the warrant. Once issued, the distress warrant will be carried out by the sheriff's office in the jurisdiction where the property is located. Distress warrants are only issued under certain limited circumstances. Generally, the tenant must be fleeing the Commonwealth, about to hide himself or the property or in danger of selling or assigning the property. The grounds are more specifically stated in Virginia Code section 8.01-534.

Upon issuance of the distress warrant, landlords have the power to levy property within the premises. Under a levy the property remains on the premises but it is under the custody of the court. Alternatively, the landlord can request a levy coupled with an actual seizure of the property by the sheriff. These measures assure that the property will be available once a judgment is secured.

Caveat to Landlords Considering Use of the Distress Warrant

Landlord's liens as a means of securing the payment of rent are an attractive option, but landlords must be very careful. These distraint actions are governed by specific statutes. Virginia Code sections 55-230 and 55-231 specify the mechanism by which distress warrants may be issued. Landlords must comply with these statutes and be justified in their seizure of the property or they may be subject to liability under section 8.01-41 which provides remedies for tenants whose property has been unlawfully seized.

If you are considering engaging in any of these means of recovering possession of your rental property or of collecting payment of past due rent, contact a competent attorney in your area.