Thursday, March 24, 2011

Can a residential landlord bar the guests of the tenant from entering the premises?


By: Ryan C. Young, Fairfax, Virginia real estate attorney serving clients throughout northern Virginia
Law Office of Ryan C. Young – Office: (703) 896-7667

On several occasions, I have been asked by landlords if they are able to bar/restrict certain guests of the tenant from entering the premises. In Virginia, a landlord may bar the guest of a tenant from entering the premises based only on specific conduct which violates the law or the express terms of the lease. It is not enough that the landlord simply does not like this person. In Virginia, tenants have the right to quiet enjoyment of the premises and may use the property for any lawful purpose, so long as the behavior is not restricted by the lease agreement.

A scenario which comes up quite a bit is the guest of the tenant who is selling or using drugs on the property. If the landlord reasonably believes that the guest is involved in illegal behavior, they may take steps to bar this person from the property. However, this may be difficult for the landlord to keep an eye on.

A further example would be when the tenant has guests which stay an amount of time which is beyond what is allowed in the lease. If this person is not on the lease, the landlord could bar the guest from returning to the property. This is also a clear violation of the lease, which would allow the landlord to begin steps necessary for evicting the tenant.

If the landlord determines that the tenant’s guest has broken the law or the lease, the landlord can serve a Notice of Trespass on the tenant’s guest. In every instance, it is important that this notice state why the guest is being barred. This notice alerts the guest that they are no longer welcome on the property. In order to do this, you would need the name and address of the offensive guest. It would be wise to also serve a notice on the tenant that this person is no longer allowed.

If the offensive guest continues to return to the premises, the landlord may swear out a Warrant for Trespass against the guest. Trespassing is a crime, which is defined by statute in Virginia (Virginia Code § 18.2-119).


Here's a little more added to Ryan Young's article for clarification. Ryan says you will need the name and address of the tenant's guest. I have seen no where where it says you need all of that information although I can see how it would be beneficial to the police to have it otherwise they won't easily be able to arrest them. If they trespass after your notice to them the charges are up to a year in jail and a $2,500 fine.

Virginia Code § 18.2-119 defines the crime of trespassing as follows:
If any person without authority of law goes upon or remains upon the lands, buildings or premises of another, or any portion or area thereof, after having been forbidden to do so, either orally or in writing, by the owner, lessee, custodian or other person lawfully in charge thereof, or after having been forbidden to do so by a sign or signs posted by such persons or by the holder of any easement or other right-of-way authorized by the instrument creating such interest to post such signs on such lands, structures, premises or portion or area thereof at a place or places where it or they may be reasonably seen, or if any person, whether he is the owner, tenant or otherwise entitled to the use of such land, building or premises, goes upon, or remains upon such land, building or premises after having been prohibited from doing so by a court of competent jurisdiction by an order issued pursuant to §§ 16.1-253, 16.1-253.1, 16.1-253.4, 16.1-278.2 through 16.1-278.6, 16.1-278.8, 16.1-278.14, 16.1-278.15, 16.1-279.1, 19.2-152.8, 19.2-152.9 or § 19.2-152.10 or an ex parte order issued pursuant to § 20-103, and after having been served with such order, he shall be guilty of a Class 1 misdemeanor. This section shall not be construed to affect in any way the provisions of §§ 18.2-132 through 18.2-136.

The issue in many trespassing cases is twofold: has proper notice been provided that the person is not welcome in a particular area and exactly what area is the person prohibited from entering. The code identifies potentially four different ways in which notice of no trespassing may be accomplished. The four ways are: by oral request by a person in authority, by written request by a person in authority, by a posted sign in an area where it may reasonably be seen, by court order pursuant to specific code sections, even if the order is ex parte. An ex parte order is an order entered by a judge where the person who is the subject of the order is not present at the time the order is entered. For a person to be convicted of trespassing after the entering of an ex parte order, that person must have actually been served with a copy of the order. This means a sheriff or other properly authorized individual, delivered a copy of the order to the person who is the subject of the no trespass provision. A written or oral no trespass request can be for both public and private locations. For instance, places of business can request a person not to return to their location. Even a city can request that an individual not return to a certain park or parks. However, a private business can't ban a person from an area that is public access nor can a city ban a person from an area when doing so would interfere with a constitutionally protected right.


55-248.31:01. Barring guest or invitee of tenants. A. A guest or invitee of a tenant may be barred from the premises by the landlord upon written notice served personally upon the guest or invitee of the tenant for conduct on the landlord's property where the premises are located which violates the terms and conditions of the rental agreement, a local ordinance, or a state or federal law. A copy of the notice must be served upon the tenant in accordance with this chapter. The notice shall describe the conduct of the guest or invitee which is the basis for the landlord's action.
B. In addition to the remedies against the tenant authorized by this chapter, a landlord may apply to the magistrate for a warrant for trespass, provided the guest or invitee has been served in accordance with subsection A.
C. The tenant may file a tenant's assertion, in accordance with  55-248.27, requesting that the general district court review the landlord's action to bar the guest or invitee.


Here's a sample letter:

NOTICE OF TRESPASS

DATE & TIME OF INCIDENT: ___________________

NOTICE

You, ___________________________________, are hereby notified pursuant to
Virginia Code § 18.2-119 and 55-248.31:01 that you are hereby barred from entering in or upon the premises or cartilage of the property of the address: ______________________________________________________________________
Further, you are hereby notified that if you are found entered upon the above
Premises after the date of ______________, your presence shall be deemed a trespass upon said property herein described and the owner, or duly authorized representative
shall take every measure permitted by law to prevent such trespass, which shall include arrest by a police officer.

Should you enter or cross my property, I will notify the Police Department and seek a criminal complaint against you in the General District Court for trespassing and or apply with the magistrate for a warrant for trespass.

I, (print name) ________________________________________________________
Of (address) __________________________________________________________
(city) _______________________ (state) _________ (zip code) _________________

 I have fully read and understand the significance of the above notice of trespass and
voluntarily affix my signature.

__________________________________       ______________________
(signature)                                                            (date)

_____________________________________         _________________________
(signature of property owner / agent)                        (date)

***REASON: ________________________________________________________________________________________________________________________________________________

I hereby certify that I served this Notice upon the named trespasser by:
________Delivering a copy of it personally to the trespasser.
________By phone or verbally.
________Service by certified mail with return receipt requested.

2 comments:

Lori on December 2, 2016 at 8:59 AM said...

What about the spouse of the tenant when the landlord has approved occupancy by tenant and spouse and has accepted rent without reservation for two months prior to attempting to evict spouse from 2-bedroom apartment?

Husband had 2 year lease on 2 bedroom apartment, got married 1.5 years later. Notified landlord wife would be moving in. Wife moved in. Landlord approved her moving in. Two months later landlord tries to evict wife stating only one person on lease.

Wife is disabled and has a service animal. Landlord initially tried to evict based on service animals. When tenant suggested this was discriminatory, landlord tried to evict based on wife not being on lease. Landlord never asked or offered for wife to be added to lease. Wife has good credit and no criminal history.

Dallas ® on December 4, 2016 at 5:59 PM said...

If the landlord agreed to allow the wife to move in than she is officially a tenant. In Virginia you don't have to have a lease. The person is still legally on the hook with a verbal agreement. Do you have proof that the landlord agreed to the wife being put on the lease? If the wife personally gave the landlord rent than that should be good enough to acknowledge that the LL for sure knew that the wife was living there. And if the landlord didn't do anything about that right away than the landlord is officially accepting that the wife is now legally there.

There are a lot of tenants doing a service animal scam these days. To try to get around paying a pet fee and pet rent. That scam consists of talking to their doctor and getting their doctor to sign that their family dog is a service animal that's needed for their emotional purposes. And the doctors aren't considering what their scammer patient is trying to do. I would say maybe so but ONLY if that pet has passed a legitimate official training program that is has gone through that proves it does have the ability to do as such.

If the wife's pet is a real service animal than she is allowed to have it without paying any additional fees.

The landlord acknowledging that she was there and not immediately acting on it makes it a case where the landlord will lose if they try to evict you guys. You will need to bring your strongest information that proves that the landlord was aware of this as well as proof that the animal is a real service animal.

Post a Comment

 

Real Estate Investors of Virginia. Copyright 2009 All Rights Reserved