Related Articles: Commercial Landlord

Self-Help: No Substitute for Distress

Most landlords are aware that Virginia law does allow a landlord to employ self-help to recover possession of the rental premises as long as the landlord does not breach the peace. But this right of self-help is limited to recovery of possession of the premises only and does not allow the landlord to seize his tenant's property. (This article is not intended to cover the landlord's right of self-help, which should only be employed after consulting with your attorney).

Under Virginia law, a landlord is considered to have a statutory lien on all his tenant's property. Accordingly, a landlord whose tenant is in default can file a "distress petition" seeking to have his tenant's property seized and brought into court custody to ensure that it will be available for a subsequent execution sale to satisfy the rent due. Since the "landlord's lien" is considered to exist automatically in every tenancy, a landlord might expect to be able to enforce his lien by simply locking out the tenant and thereby seizing the tenant's property. While this is a very attractive option, any landlord who attempts such a seizure, without following the legal procedure prescribed by the Virginia Code, will probably not only fail to gain custody of the tenant's property, but will also face a lawsuit from his tenant for unlawful seizure.

Historically, the common law allowed a landlord to distrain his tenant's goods for rent owed. The landlord himself, or his agent, was allowed to seize the goods directly. This is no longer the case because Virginia Code section 55-230 only permits a sheriff or constable to seize goods pursuant to a judicial proceeding. A landlord may not, on his own initiative, seize his tenant's goods and hold them for rent due.

We recommend filing the distress action before the eviction in order to avoid the flight of tenant's assets. Alternatively, we recommend filing the unlawful detainer and distress petition at the same time; in most cases this simultaneous assault will be most effect.