Wednesday, December 7, 2016

TAKEN WITH RESERVATION… AKA I’ll still take you to court unless it’s all paid.



Lets get right to it without any fluff. By law you are supposed to give a tenant a taken with reservation letter or receipt within 5 days of any payment you accept that is not a full payment of what is owed. Yes that is a MAJOR pain in the you know what as some tenants like to make several payments of 150 here and 200 there. Each and every payment made has to have a letter or written receipt saying “taken with reservation” on it.

However now with the new law we are allowed to notify the resident that all future payments will be taken with reservation in our pay or quit notices eliminating that burdensome task. You may need a copy of this law with you though as this is not something that Roanoke landlords have taken advantage of therefore it may be something that the judges are unaware of.

Here’s the relevant section of the Virginia Residential Landlord Tenant Act. Pay attention to the words written termination notice which is a 5 day pay or quit notice:

§ 55-248.34:1. Landlord's acceptance of rent with reservation.
A. Provided the landlord has given written notice to the tenant that the rent will be accepted with reservation, the landlord may accept full or partial payment of all rent and receive an order of possession from a court of competent jurisdiction pursuant to an unlawful detainer action filed under Chapter 13 (§ 8.01-374 et seq.) of Title 8.01 and proceed with eviction under § 55-248.38:2. Such notice shall be included in a written termination notice given by the landlord to the tenant in accordance with § 55- 248.31 or in a separate written notice given by the landlord to the tenant within five business days of receipt of the rent. Unless the landlord has given such notice in a termination notice in accordance with § 55-248.31, the landlord shall continue to give a separate written notice to the tenant within five business days of receipt of the rent that the landlord continues to accept the rent with reservation in accordance with this section until such time as the violation alleged in the termination notice has been remedied or the matter has been adjudicated in a court of competent jurisdiction. If the dwelling unit is a public housing unit or other housing unit subject to regulation by the Department of Housing and Urban Development, the landlord shall be deemed to have accepted rent with reservation pursuant to this subsection if the landlord gives the tenant the written notice required herein for the portion of the rent paid by the tenant. 

Your 5 Day Notice Should Include Something Along These Lines:  
Any and all payments made towards rent and all other fees and costs, will be taken with reservation, and will not constitute a waiver of the landlord’s right to evict you from the dwelling unit.

You must notify them also that this will not constitute a waiver of your rights to evict them as there is another code section below that includes that, as required in a written notice, from the point where you have already been granted possession and are in the process of waiting for the deputy to show up for an official eviction. 

B. Subsequent to the entry of an order of possession by a court of competent jurisdiction but prior to eviction pursuant to § 55-248.38:2, the landlord may accept all amounts owed to the landlord by the tenant, including full payment of any money judgment, award of attorney fees and court costs, and all subsequent rents that may be paid prior to eviction, and proceed with eviction provided that the landlord has given the tenant written notice that any such payment would be accepted with reservation and would not constitute a waiver of the landlord's right to evict the tenant from the dwelling unit. However, if a landlord enters into a new written rental agreement with the tenant prior to eviction, an order of possession obtained prior to the entry of such new rental agreement is not enforceable. Such notice shall be given in a separate written notice given by the landlord within five business days of receipt of payment of such money judgment, attorney fees and court costs, and all subsequent rents that may be paid prior to eviction. If the dwelling unit is a public housing unit or other housing unit subject to regulation by the Department of Housing and Urban Development, the landlord shall be deemed to have accepted rent with reservation pursuant to this subsection if the landlord gives the tenant the written notice required herein for the portion of the rent paid by the tenant. Writs of possession in cases of unlawful entry and detainer are otherwise subject to § 8.01-471.

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