Landlording - Eviction Hearing Wednesday, Need Advice (CDC)

13 Replies

Here's the full story (skip to bottom for TLDR):

I do not have an attorney for this case. If you know of one that won't break the bank and can be ready by December 2, please let me know below, I know it's last minute. All statements mentioned in this story are made via email.

I rented to a couple for two years and never had any problems. In September 2020, the female tenant stated she was separating from her husband (the male tenant) and asked to be removed from the lease. I was fine with this as long as the male tenant was able to provide proof of income of more than the rent amount. He provided me with his VA Disability letter stating he received $2,144 per month from the VA and a paystub showing I allowed her to be removed from the lease and allowed her ex to sign a new lease. He paid the first month's rent, for October, on time with no issue.

On October 31, he emails me basically saying he quit his job and that he could pay $550 in rent. Then he emailed right after that saying he couldn't pay anything because he bent the rim on his car and had to get that fix and that he "needs his car." But then he sent another email saying he could "barely drive anymore."

When I said that the fact he gets $2,144 from the VA every month and is not able to pay anything is very concerning, he responded saying he didn't receive the full amount for his VA payment. Stating that there was money owed from his previous use of his GI bill that was taken out.

I told him that paying nothing was not an option. I told him to help him out I would lower his rent to $1,000 for the month (normal is $1,390) and that he could pay $700 now and then pay the remaining $300 before lease end. I also told him, to help get him back on track, I would also lower December's rent to $1,000. He said that wouldn't be a problem and that he would be able to pay within five days. On the fourth day, I contacted him asking if he was still on track to pay the $700 on the 5th. He stated he was supposed to be receiving the money that night, but that it was "up in the air." When I emailed him the next day asking for the money, he said he doesn't have it. 

So that night, I served him with a five-day pay or quit notice and let him know I had done so via email also stating that the previous offer I had made was rescinded. He stated that come December 1st, he would be receiving BAH with back pay and would be able to pay November and December's rent and the late fees. I told him that if he provided proof of this (saying a simple screenshot would suffice), I would take that into consideration. He said he would "look into" getting proof of his upcoming BAH payment. Up until this point, he has still provided nothing but emails. He also kept trying to make himself into a victim, saying he "hopes I wasn't kicking him out because he's a veteran," or that I "don't want a single guy living there." Which is absolutely ridiculous. My best friend is a disabled veteran and I would rent to anyone, as long as the rent is paid in full and on time. I also told him in the first email that he gets the benefit of the doubt with me specifically due to the fact that he is a veteran.

I also told him that if he did not pay rent, I was not able to cover both my mortgage and the mortgage on the rental property for an extended period of time, without enduring a financial hardship, and that it could possibly be foreclosed. He responded saying that my "inability to manage money to not be able to cover the mortgage is not his problem." The compete hypocrisy, lack of self-awareness, and utter gall is astounding, I know. LOL.

A week went by and I received nothing. I emailed him telling him that he still hasn't paid anything, or sent me any evidence that he would be able to, and he responded that "law dictates I can't evict him until December 31st." From what I know of Virginia Law, there is no law stating that I cannot evict a tenant for non-payment. I did find that the CDC completely overstepped its authority and ordered a blanket national moratorium on evictions until December 31, but at this point, I still had not received any official CDC Declaration from my tenant.

So I responded that he's made no effort to pay or to provide evidence that he will pay and that I would be filing the unlawful detainer the next day. So after leaving my other job, I went straight to the courthouse to file the unlawful detainer swearing under oath I had not received any official CDC declaration from my tenant. That night, I emailed the tenant telling him that this is the first time I've ever had to do this and I made him an offer stating that if was able to be out of the unit by November 25 and cleaned the unit as best he can (the downstairs carpet is destroyed), then I would pay him $500 and he could avoid a judgement in debt. He ignored this email completely.

So, I was going through my junk email, days later since I hadn't heard from him, and found another email from him stating that he received the court paperwork and that I "filed the eviction" the same day he sent me his CDC declaration. At this point I still hadn't received any CDC declaration and I asked him if he meant to send an attachment with that email. The way my Outlook is set up is that everything goes to my "Junk" folder that is not specifically put on the "Safe Senders" list. I thought it had added him to that list by replying to his first email, but apparently that only allows emails from the same subject (thread) to continue going to the inbox. I told him this as well and told him that I added him to the list and that all future emails should go to my inbox. I also asked him to resend the declaration. He sent me a screenshot of the email he sent showing an email with an attachment. I responded saying I would look for that specific email and reminded him that he has still made no effort to pay or provide evidence that he would be able to pay and that a screenshot (like the one of the email he sent me) of the BAH website would suffice.

I also let him know that with the impending hearing, I would require payment in full via a certified check or money order (which my lease gives me the right to do) and that I would be disabling payments through Cozy (online rent payment software) for the time being as they allow for partial payments.

Prefer information relating to Chesapeake, Virginia courts regarding eviction, but any information will be greatly appreciated, as this is my first eviction and I have no idea what to expect during the hearing. So even a layout of how the hearing will go will be useful. Thank you.

TLDR:

Tenant has not paid anything and has offered no evidence that he will be able to pay. Tenant has not provided any proof of a financial hardship or any proof of anything he has said for that matter. When asked repeatedly for any evidence he would be able to pay, as he stated multiple times, he became combative and started talking about the CDC order. He said he emailed me the CDC order the day I filed the unlawful detainer. I didn't receive it due to emails going to junk.

Some questions:

1. What are the odds I still receive a judgement in debt, considering he's paid nothing and made zero effort?

2. Law (VA Code § 8.01-471) dictates that a writ of eviction can be filed within 180 days of receipt of judgement. If I receive a judgement, am I able to use that judgement to obtain a writ of eviction on Jan 2, 2020, assuming moratorium doesn't get extended?

3. What are the odds the judge evicts the tenant and ignores the order, considering the tenant has made no effort to pay or provide any evidence of hardship or that he will pay?

4. Is it too late to get a lawyer? How much does it cost for something like this?


Thanks all!

I'm also pretty sure he's smoking marijuana in the property. The smell of weed is very strong in the unit. How does one prove that in a court, though? If the unlawful detainer for non-payment doesn't work out. Thanks again.

Josh, don't panic.  It sounds like you gave him too many opportunities.  According to my understanding of the CDC order, there is 5 things they tenant must do to qualify.  One of them is make an attempt to pay, which it sounds like they have not.  So the CDC order wouldn't be a factor.. Also, is the tenant month to month or on a lease.  You may want to try to evict for termination of a month-to-month lease.  It's a way around the eviction for non-payment.. 

Stick to the facts and provide a clear timeline of events to the court with the supporting documentation.  Keep the summary as a short bullet point list.  Eg


Oct 1 rent ($1000) not paid

Oct 5 tenant emailed to state rent went to car repair (see email 1)

Oct 7 tenant emailed not driving car (see email 2)

...

Originally posted by @Gavin Welch :

Josh, don't panic.  It sounds like you gave him too many opportunities.  According to my understanding of the CDC order, there is 5 things they tenant must do to qualify.  One of them is make an attempt to pay, which it sounds like they have not.  So the CDC order wouldn't be a factor.. Also, is the tenant month to month or on a lease.  You may want to try to evict for termination of a month-to-month lease.  It's a way around the eviction for non-payment.. 

It's not month to month, the lease expires in July. 

Originally posted by @Theresa Harris :

Stick to the facts and provide a clear timeline of events to the court with the supporting documentation.  Keep the summary as a short bullet point list.  Eg


Oct 1 rent ($1000) not paid

Oct 5 tenant emailed to state rent went to car repair (see email 1)

Oct 7 tenant emailed not driving car (see email 2)

...

 That's a great idea. Thank you. I sometimes get carried away with my lengthy descriptions, as you can see from my original post.

Originally posted by @Joshua S. :
Originally posted by @Gavin Welch:

Josh, don't panic.  It sounds like you gave him too many opportunities.  According to my understanding of the CDC order, there is 5 things they tenant must do to qualify.  One of them is make an attempt to pay, which it sounds like they have not.  So the CDC order wouldn't be a factor.. Also, is the tenant month to month or on a lease.  You may want to try to evict for termination of a month-to-month lease.  It's a way around the eviction for non-payment.. 

It's not month to month, the lease expires in July. 

 If the lease expires in July, they don't need to know now if it will be renewed.  Normally that is done 30-90 days in advance (depending on location.

@Joshua S. This is why people need to pay professionals to handle this type of thing. You're trying step over dollars to chase pennies. Hire a lawyer that knows the law and all the changes that are happening! It'll save you time, money, and a headache. You probably feel the same way when people list FSBO and you're a realtor :)

In Virginia- Protections through Dec 31:

Landlord cannot evict for unpaid rent unless:

Landlord gives tenant written notice about how much is owed with information about Virginia RMRP and how to reach 2-1-1- Virginia for rentals assistance programs. Tenant must refuse to apply for RMRP and refuses to cooperate with landlord in applying for RMRP.

Starting January 1, there are even more steps that the landlord will need to do in this type of situation.

Also if your lease was signed on or after July 1, 2020.. you have to include the Virginia statement of tenant rights. Must be signed off by both the landlord and tenant. Landlords may not sue a tenant in any court for any lease violation unless the statement has been signed.

Judges don't waste time with who said what when. They stick to the facts and the timeline: Did the tenant pay rent? If not, do they plan on paying (along with any late fees) today? If not, did the landlord serve the proper notices and follow all the steps according to local laws? If the paperwork is in order and everything was done correctly, when is the tenant moving out? Do I need to send the sheriff to move you put, or can you be out by Friday? However, if the process wasn't done correctly, (notices served in the correct format, timeline, etc.) they may make you go back and start over following the correct steps exactly as the law requires. 

 It's probably not too late to hire a lawyer, and that may be your best option at this point. But they may not be able to help you out if you missed some steps/didn't serve the proper notices in the right way at the right time. So do yourself a favor and research your local tenant/landlord laws as well as any changes due to Covid more thoroughly. Follow the guidelines for how to process an eviction exactly as they are stated in the law (for example here in Colorado notice needs to be delivered with a certified letter or posted physically on the property, so I do both to be safe. I don't believe email is an acceptable form of delivering notice here but that may be different there). 

After researching the laws you should have a good idea of how the judge will view your case, and whether or not hiring a lawyer will benefit you. Either way I would still show up to court, if necessary apologize for not adhering to the process perfectly, stick to the facts (especially the tenant not paying rent), be overly polite ("Thank you, Your Honor!") and hope for the best. If the tenant doesn't show up to court the judge may just go ahead and rule in your favor. If the tenant does show up, the judge may send the two of you outside to speak to a mediator who will help you come to an amicable agreement with the tenant. This has been the case for most of my evictions, and I've held firm and just stated that I would like the tenant to leave as soon as possible so I can replace them with a paying tenant. Typically they agree as long as I agree to forgive the unpaid rent, and we go back before the judge who says "Be out by Friday or we'll send the sheriff to move you out," and they move out.

 In the future, try to avoid getting caught up in tenant's affairs. Just keep it business, serve the notice immediately when rent is late and start the eviction process. Do not accept partial rent or do anything that would jeopardize the notice/eviction process timeline. Limit communication with the tenant and follow each step of the process exactly as your local laws require. If they don't pay, then you move forward with eviction confidently because you understand the process and have done everything according to the court requirements. You can still be human about it, just say whatever very short nice thing you want, and then explain that it's company policy to serve these notices whenever rent is not paid, because you're running a business, and leave it at that.  Good luck! 

@Amy H.  You're probably right. The lease is continued from a previous lease that was signed by him and his wife in May 2020. If you could offer me some advice, please DM me. I'd be much obliged.

Hey @Joshua S. .  Feel free to give me a call on my cell. We did an eviction today, based on a non-financial lease violation. Are you saying you approved the male tenant being on the lease alone based on an income to rent ratio of: income > rent?  Rather than the standard for our market, which would require income of 3 times the rent?  I'm thinking you may have a typo in your original post. I would be happy to review your situation and give you some real world advice.

@Joshua S.

Joshua, I experienced a very similar type of tenant payment situation and handled it, humanely, but poorly and when we ended up in court a few months later, the tenant fibbed to the magistrate and I lost in court. I learned and a few months later when the situation arose again with the same tenant, I won the case and the tenant was evicted. That’s how we learn and grow. Cut yourself a break.....but if you do go to court, handle it professionally and directly as others here mentioned be prepared to lose or have the case dismissed.

Magistrates were mostly by the book before the Pandemic, so you can bet they will be more so now.

I think if you can get a lawyer at this point, only because it’s gotten sticky and you may not have your paper processes in order, I might get the lawyer. If not, you may want to reach out to the tenant and ask if he realizes that under the cdc guidelines he still will ultimately need to pay in full and if he says yes...invite home to agree to a repayment plan that you put in writing, he signs, he makes a payment on, and you can postpone the eviction / court process and cancel for Wednesday. Then, if he defaults on any portion of your workout agreement, you can get your paperwork and communication right and file a fresh eviction in January, knowing you crossed your t and dotted your I.

Self managing can be a great thing and a profitable thing for somebody with a few properties and a W2job. You can do this and grow. Good luck!

Originally posted by @Patti Robertson :

Hey @Joshua S..  Feel free to give me a call on my cell. We did an eviction today, based on a non-financial lease violation. Are you saying you approved the male tenant being on the lease alone based on an income to rent ratio of: income > rent?  Rather than the standard for our market, which would require income of 3 times the rent?  I'm thinking you may have a typo in your original post. I would be happy to review your situation and give you some real world advice.

Thank you so much for the response, Patti. Sorry it's taken so long to respond. In retrospect, I should have DEFINITELY evicted for one of the many other things I probably could have. The place was disgusting. Carpets trashed, smelled like weed, etc. To answer your question, I decided to rent to continue to rent to him because he was receiving $2,133 per month in disability and was employed making around another $1,600 per month. So I felt he could afford rent no matter what. A stupid assumption. It was a great learning experience, however, it was also a very costly one. Here's what happened:

So I went to court ultimately hoping that he wouldn't show up, but he did. Considering he still had guaranteed income via VA disability and had still paid nothing up until court, I decided not to get a lawyer. I figured the judge would see through his ridiculous excuses and ultimately rule in my favor. I had a binder with the lease, the payment history, the plumbing bill he owed me, and all of our conversations. I felt ready and confident.

However, before I could even get in front of the judge, I was pulled out of the courtroom by the state-funded "mediator." She asked if I was aware our king's (tyrannical Governor's) latest mandate regarding evictions. I responded that I hadn't, because all I knew about was the CDC moratorium on evictions (the completely unconstitutional overstep of the federal government). She then asked if I'd be willing to participate in mediation. I agreed, thinking that I didn't have any other option. 

In mediation, he fed the mediator a bunch of lies and said he still had nothing to pay me (despite receiving yet another $2,133 just four days earlier). The mediator rightly gave him the third degree, saying he was prioritizing everything else over paying rent and that I was doing everything I was supposed to do. She asked him if he could simply vacate the property, to which he replied he would "need more than a couple weeks." 

Ultimately, I told him that if he can be out by December 30, then he didn't owe me anything. At this point it was clear I would never receive the money anyway. This guy already has terrible credit and 10s of thousands in unpaid debt and bills. I should have never agreed to continue renting to him after he divorced his wife. We automatically had a new court date for January 6 if he was non-compliant. And of course, he waited until December 30 to actually move out. I somewhat regret the decision, primarily because now he has no judgement or eviction on his record, gets away with it scot-free, allowing him to go do it again to someone else.

I suppose ultimately I lucked out though. When I went to file for the eviction originally, the clerk of court told me of another landlord that hadn't been able to collect rent from her tenant since March and was owed over $10,000. She said that landlord tried to cut power, having no recourse from the state to re-obtain possession of her property, so that tenant sued her for self eviction and was awarded $1,000. So I honestly just feel lucky that I was able to get him out within a couple months.

And now with a Biden presidency, I feel there's no telling when anyone will be able to evict tenants for non-payment now. I'm told he'll also put a moratorium on foreclosures, however the banks will always get their money. If you follow the World Economic Forum, and their insane desire for a global economic "Great Reset," where normal people own nothing and have no privacy (like Chinese "social credit" only worse), you can really see how they plan to accomplish it. Bankrupting small business with overregulation, moratoriums, lockdowns etc. in the name of "COVID." It's outlined in their article, originally titled (and still displayed this way on search engines), "Welcome to 2030. I own nothing, have no privacy, and have never been happier." They've since renamed the article "Here's how life could change in my city by the year 2030," for obvious reasons, lol (You can see original title here: https://duckduckgo.com/?q=It%2...). Some people say it's a "crazy conspiracy theory," but it's literally on their website... so... yeah...

Anyway, so he left the property a mess. There were little fruit flies everywhere on all the ceilings, the carpet was destroyed, crayon on the walls, and he left some furniture and trash. I was very blessed in this regard however. My wife was able to find a guy on Facebook that removed all the trash and furniture and painted the entire unit for $800. I'm having Lowes replace all the carpet and padding for around $2,000, which I put on my Lowes card and financed for six months with 0% interest. Then all that's left is replacing an old ceiling fan, replacing a bathroom exhaust fan, and some cleaning. All of which I can do myself. Should be good as new after it's all done. 

I'm not really in a hurry to re-rent it. I'm also refinancing it as a second home for 2.5% interest, since it's vacant, so the new payment will only be like $550 per month. I also have a dentist friend that's interested in renting it in June when his current lease expires, but I may just sell it retail and take the equity.

Any thoughts or comments are welcome.