Code of Virginia

Code of Virginia
Title 8.01. Civil Remedies and Procedure
8/8/2020

Article 13.1. Warrants in Distress.

§ 8.01-130.1. Remedy for rent and for use and occupation.

Rent of every kind may be recovered by distress or action. A landlord may also, by action, recover, when the agreement is not by deed, a reasonable satisfaction for the use and occupation of lands. On the trial of such action, if any parol demise or any agreement not by deed whereon a certain rent was reserved appears in evidence, the plaintiff shall not therefor be nonsuited, but may use the same as evidence of the amount of his debt or damages. In any action for rent, or for such use and occupation, interest shall be allowed as on other contracts.

Code 1919, § 5519; Code 1950, § 55-227; 2019, c. 712.

§ 8.01-130.2. Who may recover rent or compensation.

If a person is entitled to rent or compensation, whether such person has the reversion or not, then his personal representative or assignee may recover it as provided in § 8.01-130.1, whatever the estate of the person owning it, or though his estate or interest in the land has ended. When the owner of real estate in fee, or holder of a term, yielding him rent dies, the rent due after such owner's or termholder's death shall be recoverable by such owner's heir or devisee or such termholder's personal representative. If the owner or holder alienates or assigns his estate or term, or the rent falls due after such alienation or assignment, the alienee or assignee may recover such rent.

Code 1919, § 5520; Code 1950, § 55-228; 2019, c. 712.

§ 8.01-130.3. Who is liable for rent.

Rent may be recovered from the lessee or other person owing it, or his assignee, or the personal representative of either; however, no assignee shall be liable for rent that became due before his interest began. Nothing in this section shall impair or change the liability of heirs or devisees for rent, as for other debts of their ancestor or devisor.

Code 1919, § 5521; Code 1950, § 55-229; 2019, c. 712.

§ 8.01-130.4. When and by whom distress made.

A distress action for rent may be brought no later than five years from the time the rent becomes due, whether the lease is ended or not. The distress shall be made by a sheriff of the county or city where the premises yielding the rent, or some part thereof, is located or the goods liable to distress may be found, under warrant from a judge of, or a magistrate serving, the judicial district. Such warrant shall be founded upon a sworn petition of the person claiming the rent, or his agent, that (i) the petitioner believes the amount of money or other thing by which the rent is measured, to be specified in the petition in accordance with § 8.01-130.6, is justly due to the claimant for rent reserved upon contract from the person of whom it is claimed, (ii) the petitioner alleges one or more of the grounds mentioned in § 8.01-534 and sets forth in the petition specific facts in support of such allegation, and (iii) the rent claimed is for rent due within five years from the time that it becomes due. The petition shall also specify the amount of the rent claimed and request either levy or seizure of the affected property prior to trial. The plaintiff shall, at the time of suing out a distress, give bond in conformity with the provisions of § 8.01-537.1. The plaintiff praying for a distress warrant shall, at the time that he files his petition, pay the proper costs, fees, and taxes, and in the event of his failure to do so, the distress warrant shall not be issued.

A judge or magistrate shall make an ex parte review of the petition and may receive evidence only in the form of a sworn petition, which shall be filed in the office of the clerks of court. The warrant may be issued in accordance with the prayer of the petition by a judge or magistrate only upon a determination that there appears from the petition that there is reasonable cause to believe that one of the grounds mentioned in § 8.01-534 exists, the allegations required to be in the petition are true, and bond that complies with § 8.01-537.1 has been posted.

Each copy of the distress warrant shall be issued and served on each defendant together with (a) a form for requesting a hearing of exemption from levy or seizure, as provided in § 8.01-546.1, and (b) a copy of the bond. The distress warrant may be issued or executed on any day, including a Saturday, Sunday, or other legal holiday. Service shall be made in accordance with the methods described in § 8.01-487.1. The provisions of § 8.01-546.2 shall govern claims for exemption.

The officer into whose hands the warrant is delivered shall levy or seize as directed in the warrant, except as may be provided by statute, the property found on the premises of the tenant as provided by § 8.01-130.6. The officer shall return the warrant of distress to the court to which the warrant of distress is returnable by the return date unless otherwise notified by the court to make return by an earlier date.

Code 1919, § 5522; Code 1950, § 55-230; 1962, c. 10; 1974, c. 458; 1976, c. 177; 1980, c. 555; 1986, c. 341; 1993, c. 841; 2008, cc. 551, 691; 2019, c. 712.

§ 8.01-130.5. Procedure for trial on warrant in distress.

The distress warrant shall contain a return date and be tried in the same manner as an action on a warrant as prescribed in § 16.1-79, except that the case shall be returnable not more than 30 days from its date of issuance. The trial or hearing of the issues, except as otherwise provided, shall be the same, as near as may be, as in actions in personam.

1980, c. 555, § 55-230.1; 1993, c. 841; 2019, c. 712.

§ 8.01-130.6. On what goods levied; to what extent goods liable; priorities between landlord and other lienors.

The distress may be levied on any goods of the lessee, his assignee, or any sublessee that are found on the premises or that may have been removed from the premises not more than 30 days prior to the levy. A levy within such 30 days shall have like effect as if the goods levied on had not been removed from the leased premises. If the goods of such lessee, assignee, or sublessee, when carried on the premises, are subject to a lien that is valid against his creditors, his interest only in such goods shall be liable to such distress. If any lien is created on such goods while they are upon the leased premises, or within 30 days after such lien is created, they are liable to distress, but for not more than six months' rent if the premises are used for residential purposes, and not for farming or agriculture, and for not more than 12 months' rent if the lands or premises are used for farming or agriculture, whether such rent has accrued before or after the creation of the lien. No other goods shall be liable to distress than such as are declared to be so liable in this section, nor shall the goods of the sublessee be liable to a greater amount than such sublessee owed the tenant at the time the distress was levied.

Code 1919, § 5523; 1922, p. 863; 1932, p. 696; Code 1950, § 55-231; 2019, c. 712.

§ 8.01-130.7. Procedure when distress levied and tenant unable to give forthcoming bond; what defense may be made.

A. On affidavit by a tenant, whose property has been levied on under a warrant of distress, that (i) he is unable to give the bond required in § 8.01-526 and (ii) he has a valid defense under subsection B, the officer levying the warrant shall permit the property to remain in the possession and at the risk of the tenant, and shall return the warrant forthwith, together with the affidavit, to the court to which such warrant is returnable. Thereupon the landlord, after 10 days' notice in writing to the tenant, may make a motion for a judgment for the amount of the rent and for a sale of the property levied on. The tenant may make such defense as he is authorized to make, including defenses permitted under subsection B to an action or motion on the bond when one is given. Upon making such defense, the officer shall permit the property to remain in the possession of and at the risk of the tenant. If the property is perishable, or expensive to keep, the court may order it to be sold, and on the final trial of the cause, the court shall dispose of the property, or proceeds of sale, according to the rights of the parties.

B. In an action or motion on a forthcoming bond, when it is taken under a distress warrant, the defendants may make defense on the ground that the distress was for rent not due in whole or in part or was otherwise illegal.

Code 1919, § 6519; Code 1950, § 8-453; Code 1950, § 55-232; 1970, c. 43; 1975, c. 235; 1977, c. 624; 1980, c. 555; 1986, c. 341; 2007, c. 869; 2019, c. 712.

§ 8.01-130.8. Review of decision to issue ex parte order or process; claim of exemption.

Promptly after levy on the property or promptly after possession of the property is taken by the officer pursuant to an ex parte order, or after denial of an application to issue such order by a magistrate, upon application of either party, and after reasonable notice, a judge of the general district court having jurisdiction shall conduct a hearing to review the decision to issue the ex parte order or process. In the event that the judge finds that the order or process should not have been issued, the court may dismiss the distraint or award actual damages and reasonable attorney fees to the person whose property was taken, or both. The provisions of § 8.01-546.2 shall govern claims for exemption.

1974, c. 458, § 55-232.2; 1980, c. 555; 1986, c. 341; 2019, c. 712.

§ 8.01-130.9. On what terms purchasers and lienors inferior to landlord may remove goods; certain liens not affected.

If, after the commencement of any tenancy, a lien is obtained or created by deed of trust, mortgage, or otherwise upon the interest or property in goods on premises leased or rented of any person liable for the rent, or such goods are sold, the party having such lien, or the purchaser of such goods, may remove them from the premises only on the following terms: On paying to the person entitled to the rent so much as is in arrear, and securing to him so much as to become due, what is so paid or secured not being more altogether than six months' rent if the premises are in a city or town, or in any subdivision of suburban and other lands divided into building lots for residential purposes, or of premises anywhere used for residential purposes, and not for farming or agriculture, and not being more altogether than 12 months' rent, if the lands or premises are used for farming or agriculture. If the goods are taken under legal process, the officer executing it shall, out of the proceeds of the goods, make such payment of what is in arrear, and as to what is to become due he shall sell a sufficient portion of the goods on a credit until then, taking from the purchasers bonds, with good security, payable to the person so entitled, and delivering such bonds to him. If the goods are not taken under legal process, such payment and security shall be made and given before their removal. Neither this section nor § 8.01-130.6 shall affect any lien for taxes, levies, or militia fines.

For the purpose of this section and § 8.01-130.6, a monthly or weekly tenancy shall not be construed as a new lease for every month or week of occupation of the premises by the tenant, but his tenancy shall be considered as a continuance of his original lease so long as he continues to occupy the property without making any new written lease.

Code 1919, § 5524; 1922, p. 863; 1932, p. 696; Code 1950, § 55-233; 2019, c. 712.

§ 8.01-130.10. When goods of a sublessee may be removed from leased premises.

The following limitations shall apply to § 8.01-130.9: a sublessee, or a purchaser from him, or a creditor holding a deed of trust, mortgage, or other encumbrance created on his goods after they were carried on the leased premises, may remove the same upon payment of so much of the rent contracted to be paid by him as is in arrear, and securing the residue, not exceeding six months' rent, if the premises are in a city or town, or in any subdivision of suburban and other lands divided into building lots for residential purposes, or of premises anywhere used for residential purposes, and not for farming or agriculture, and for not more than 12 months' rent if the lands or premises are used for farming or agriculture. If the goods are taken under legal process against him, the officer executing the same shall, out of the proceeds of his goods, make payment of so much of the rent as to which he is in arrear, and as to what is to become due from him shall sell sufficient of the goods upon credit until then, taking from the purchaser bonds with good security, payable to the party entitled to receive the same, and deliver them to him.

Code 1919, § 5525; 1922, p. 863; 1932, p. 697; Code 1950, § 55-234; 2019, c. 712.

§ 8.01-130.11. When officer may enter by force to levy distress or attachment.

The officer having such distress warrant, or an attachment for rent, if there be need for it, may, in the daytime, break open and enter into any house or close in which there may be goods liable to the distress or attachment and may, either in the day or night, break open and enter any house or close wherein there may be any goods so liable that have been fraudulently or clandestinely removed from the demised premises. He may also levy such distress warrant or attachment on property liable for the rent found in the personal possession of the party liable therefor.

Code 1919, § 5526; Code 1950, § 55-235; 2019, c. 712.

§ 8.01-130.12. When distress not unlawful because of irregularity, etc.

When distress is made for rent justly due and any irregularity or unlawful act is afterwards done by the party distraining, or his agent, the distress itself shall not be deemed to be unlawful, nor is the party making it therefore deemed a trespasser ab initio. The party aggrieved by such irregularity or unlawful act may, by action, recover full satisfaction for the special damage he has sustained thereby.

Code 1919, § 5527; Code 1950, § 55-236; 2019, c. 712.

§ 8.01-130.13. Return of execution; process of sale thereunder.

The sheriff under writ of execution from the court after hearing and judgment for the landlord, except as otherwise provided by law, shall make return on his execution as may be placed in his hands for collection and file the same, within 90 days after the same may have come to his hands, with the clerk of the court in which the case was heard. Upon the return of such execution such clerk shall preserve such execution in his office as is now provided as to other executions. If such return shows that a levy has been made and that property levied on remains unsold, it shall be lawful for the clerk of the court in whose office such return is filed to issue a writ of venditioni exponas thereon just as if the return were upon writ of fieri facias.

Code 1919, § 5528; 1930, p. 456; Code 1950, § 55-237; 1962, c. 10; 1975, c. 235; 1980, c. 555; 2019, c. 712.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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