Tuesday, February 27, 2018

This Week At REI ~ Roanoke City Police And Their Involvement With Those Who Are Trespassing. Equal Enforcemnt Of The Laws For Landlords?



Hello Everyone,

This week Yvonne has a fantastic meeting lined up for us. She was able to  set up a meeting with Captain Hartman and Sargent Sharp of the Roanoke City Police Department. 

Capt. Harris and Sgt. Sharp will be talking about rental property and your evictions. Thy will discuss the civil vs criminal authority that they have, the differences of  that civil / criminal authority when there is a lease vs no lease, what common law residency is and the Trespass Barrment Program that the city police department has. 

Several years ago I contacted former Chief Perkins due to concerns of our members regarding the lack of enforcement of trespassing laws when a landlord was the victim of a trespassing crime. There were mixed opinions that police officers had on whether a “Squatter” had any rights to your property. 

The law did not appear to allow squatters rights in Virginia even though some offices were allowing these criminal trespassers to stay saying that it wasn’t a crime to trespass on landlords property, but rather a civil matter that you would have to take up with the judge on your own. 

Chief Perkins got with their legal department and did a couple months of  research of cases in Virginia that ended up demonstrating that landlords have the same rights that any other person or company has regarding trespassing. Squatters have NO Rights in Virginia. And NO ONE can MAKE themselves a tenant by just moving in. 

Since then, this research did not seem to get passed on throughout the police force. I still have landlords contact me regularly with trespassing situations where the officer told the landlord that criminal trespassing against a landlord is a civil matter and they will have to sue them to get them out. They typically reference whether or not they have a bed there or if they get mail at the residence. Which is not a legal determination on whether or not a person is a legal resident of a property. I don’t know if this is a matter of it being hard to get all of the officers on the same page or if they changed their mind and decided to go back to not enforcing the law when a landlord is a victim. 

Capt. Hartman and Sgt. Sharp will discuss their perspective of this issue and will give us some direction on what will be enforced. 

They will be available to discuss issues such as the differences between buying a foreclosed property that have the former owners living in it, or a tenant of the former owners, or someone who just moved in, has no lease with anyone, and decided that they have squatters rights. 

Or what does a landlord do when a guest of a legitimate tenant, who was never allowed by the tenant to be a permanent resident, and never added  to the lease, overstayed their welcome refusing to leave. Or what do you do if the trespasser is a person that the tenant let live with them, that is bad for the neighborhood and not approved to live there by you due to never being able to pass your criminal background check? How about if the tenant let them live there, you never would have approved them to live there, the tenant moved out and you now have this unknown person shacking up in your house and refusing to leave? 

What about this…. The trespasser, who is not on your lease, paid the tenant rent even though your contract with the legitimate tenant states that they are not allowed to sublet the property for that very specific reason? Or if they “claimed” to pay the tenant rent, but the reality is them and that non paying tenant that moved out are pulling a scam and trying to milk you for every minute of extra free time there that they can? 

These are all very common things that happen to landlords and it costs the landlords quite a bit of money in lost income which was needed to pay city taxes, mortgages, insurance, etc. This is why it’s so important that the city takes an active stance on criminal trespassing. Landlords have the right to be treated like any other business owner. We should never be told that because we are a landlord…. trespassing, vandalism, theft of the refrigerator or stove, etc or any other crimes against us or our properties are not going to be treated as crimes but rather civil matters. 

The city previously determined based on these court cases that it all boils  down to the lease. Whether or not the person is on it. In Virginia you don’t legally have to have a lease. But using this an example, it’s easy to see why it is so important to have one and have every adult in the property on it who has been allowed by you to be there.  

The laws supporting landlords and our rights regarding trespassing are as follows. You may want to keep a copy of them or this email with you so you can use it as reference when a situation comes about. 

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.

Virginia Code 55-248.31:01. Barring guest or invitee of tenants.  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.

Virginia Code § 18.2-119. Trespass after having been forbidden to do so; penalties.
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 the agent of any such
person, or other person lawfully in charge thereof, or after having
been forbidden to do so by a sign or signs posted by or at the
direction of such persons or the agent of any such person 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.

One of the court cases that former Chief Perkins referenced was The Virginia Court of  Appeals, 2002 McCracken V. Commonwealth of Virginia. This case proved that the owner of the property has the right to revoke their permission for a non owner person to live with them even when permission was previously granted. And if that person will not leave their property, after being told by the owner to leave, they can be arrested for trespassing. 

He further stated that under the concept of quiet enjoyment, a "named tenant to a lease” also has the same right to restrict access to a non-tenant which is proven in Farrow V. Commonwealth of Virginia, 05 Vap UNP 18111042 (2005). 

Chief Perkins went on to say that they will only utilize criminal trespass in situations that arise out of domestic disturbance  complaints where the non owner / non tenant refuses to leave the property when told to do so. And they only will charge someone with criminal trespass when the officer is able to clearly establish who owns the property OR who the named tenant is. So as a landlord this is what you will need to provide if you need assistance. 

I am hoping that we can all get on the same page with this so landlords don’t have problems in these areas anymore. 

I would like to give my thanks to Yvonne for doing such a fantastic job as President of REI of VA. She has put together some great, highly informative topics which is a welcome reprieve after our former president became angry with me and made it difficult by refusing to continue to line up speakers which hurts our entire group rather than just me. But he has moved on to fulfill aspirations of doing his own thing. While Yvonne has stepped up to the plate, per my request for assistance, and has knocked it out of the park with some outstanding meetings. 

It’s a shame that he told her that she couldn’t go to his meeting when she  wanted to. He said because she is friends with me she isn’t allowed to enter. He has barred several people that are friends of mine. Very angry and bitter man he is considering the fact that she has never said a bad thing about him and he doesn’t even know her. Oh well… moving on… she will continue to hit home runs with our meetings so we’re satisfied with the end result. 

I would also like to let people know that we are looking for a Chief Financial Officer. This particular REI Officer position takes very little time throughout the year and I can show anyone who is interested in doing it what to do. Previous experience with this is not required. 

And I would like to thank our friend, Robert Young, who has offered to take the Chief Governmental Affairs Officer position. We have needed someone for quite some time now who would be willing to handle the political aspects of things. There are laws pertaining to the water authority, trespassing, vandalism, landlord tenant act,  and other things that we need to modify. He will help us get our desired legislative changes to the politicians to take to the house and senate floor for a vote. 

There is room for anyone who want’s to help out with the operation of our group and betterment of real estate investors rights throughout the state. So if you would like to help on any level to any degree, please let me know. We always could use some extra help. 

Going to be fun tonight. We’ll see you there!

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