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  1. #1
    knava is offline Junior Member
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    Help!served 5 Day Pay Or Quit-certified Tenant Never Picked Up

    What is the name of your state? VA
    I have served my tenant the 5 day notice to pay or quit, and in an effort to have her signature I sent it certified mail. I waited until the 5 days were up and filed for eviction. I never got the signature paper back and, should have figured, she never picked it up from the post office! I went ahead and put a copy of the notice on her kitchen with the proof of certified mailing and date it was sent. I did this after I filed the Unlawful detainer, she is already in the second month without paying her rent and wants to stay until the end of July. I need to get in to make repairs, the house needs to be re-piped and she wouldn't let plumbers in.
    Now she owes 2 months back rent and is asking for an installment payment of dues. She will get the eviction notice pretty soon. Will the judge dismiss the case just because she didn't receive the notice before filing eviction? she got the copy on July 11, do the 5 days run since that day? what do you advice?
  2. #2
    Cvillecpm is offline Senior Member
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    Cool

    NOTHING in the L-T statutes of VA REQUIRE that a 5-day notice to pay rent in FULL or quit be send by certified mail.....your bad.

    Mail regular mail or USPS delivery conformation NO SIGNATURE REQUIRED. Hand it to the tenant or have a private process server deliver it.

    My leases indicate that no notice is required and I only send them regular mail prior to filing a UD.
  3. #3
    knava is offline Junior Member
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    I did send a previous notice saying that she was 20 days overdue and she was in default giving her 5 days to pay (however it didn't say pay or quit lease just past due rent notice), that one I sent with delivery confirmation. I have the delivered receipt. After that one, the certified mail one was sent.
    My contract says "Installments of rent not received by the Landlord on or before the due are late and a default under this lease. If tenant does not pay rent within 5 days after receipt of written notice of non-payment and intention to terminate lease, the landlord may terminate this lease. Unpaid rent for the entire remaining lease is due and payable.
    Advice anyone?
  4. #4
    OHlandlord is offline Member
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    knava, In some states the Pay or Quit notice has to have certain language in it. Did you get a copy of this from the local court? Or did you write your own late rent notice? Then, you sent the notice certified and the tenant refused to sign for it? Did you also send a copy by USPS or tack it on the door (whichever is appropriate for your state)? You must have delivered the actual pay or quit notice to her, and allow it to expire, prior to filing for eviction. Otherwise the eviction may be thrown out for this. (If you filed prior to the delivery & expiration, you may have to start over.) You do have one other problem, I believe VA law says that the tenant who pays rent, costs, interest, and reasonable attorney fees can stay. It doesn't say they have to receive a payment plan, so I'd ask for all amounts to be paid in full. I doubt she can come up with everything.
  5. #5
    Cvillecpm is offline Senior Member
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    VA delivery rules are very straight forward....nothing is required to be sent CRR - just mail the pay or quit in the future via regular mail or you can nail and mail - post a copy open faced on the front door and mail a copy regular mail...you just need to be able to tell the UD judge that you SENT it NOT that the tenant received it.

    Let's not make this overly complicated by bringing in discussions regarding onerous rules from other states.

    You should have your lease reviewed by a local L-T attorney and if you are NOT required to be under the VRLTA, then use a common law lease that allows you to have wording in your lease that "waives" the need to send the pay or quit. My lease states...

    "....After requisite notice required by law, in the event the AGENT does not receive from the TENANT any payment of rent or other charge by the fifth day of the month for which it is due, the TENANT waives any notice to quit or surrender the premises, and the AGENT may enter and retain possession of the premises and exclude the TENANT."

    I do actually serve a pay or quit since I have a $50 late fee and $100 notice service fee in my lease for EACH TENANT served..so by serving my 5-day notice, I collect another $300 in most cases. If, however, you just want to go forward with the UD - provide the above wording and then file on the 6th or 7th
  6. #6
    OHlandlord is offline Member
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    Cvillecpm, sorry, didn't mean to confuse the poster with other state's rules. I just knew that some states must have their pay or quits worded in a specific manner or they won't fly in court. Our unconditional notices are like this. The OP said he/she had written their own late rent notice and I didn't know if this would be acceptable in court. Since the OP mailed certified and the tenant didn't receive it, and he/she didn't actually post at the premises until after the UD was filed, will this timing invalidate their case? Does the OP need to repost or wait for the notice they left at the unit to expire, then refile for the UD? Just trying to clear this up for the OP.
  7. #7
    Cvillecpm is offline Senior Member
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    Wink

    IF the proper wording is in the OP's LEASE, no 5-day is required.

    If no wording is present in the tenant's lease, OP can file the UD NOW and should have a COPY of the 5-day pay or quit notice in court along with lease, etc and advise the judge that a copy of the notice that was sent CRR was ALSO sent regular mail so the tenant would have notice of the rent deliquency.....proper lease wording ELIMINATES the requirement for 5-day pay or quit.

    OP does not indicate how he knows the tenant has not signed for it so any information on this needs to be ignored.

    As I indicted, I serve the 5-day as a revenue enhancement tool.
  8. #8
    knava is offline Junior Member
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    Thank you two for trying to clarify this for me. I really appreciate your time in posting to this thread. This is the wording in my contract:
    "Installments of rent not received by the Landlord on or before the due are late and a default under this lease. If tenant does not pay rent within 5 days after receipt of written notice of non-payment and intention to terminate lease, the landlord may terminate this lease. Unpaid rent for the entire remaining lease is due and payable".
    I also just found another clause called NOTICE: and it basically says that any notice given by either party can be sent certified mail return receipt requested OR delivered in person if within the DC metropolitan area. The mailing or delivered in person notice will be assumed to be given at the date of mailing.
    Will this help me in court?
  9. #9
    Cvillecpm is offline Senior Member
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    Cool

    You need to take OUT the wording in your lease that you have to serve the 5-day notice BEFORE going to court or terminating the lease.

    If you are using a printed apt asso or Realtor lease, you need a better lease.
  10. #10
    OHlandlord is offline Member
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    OP, hopefully since your lease said it had to be mailed CRRR and you have proof that you did so, that will hold up in court. But as cvillecpm said, you need to get a better lease, or at lease take that wording out. Never give them more notice than required by law. Where did you get this lease? Was it provided by a local LL/Apt. Assoc.? Change it pronto.
  11. #11
    knava is offline Junior Member
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    My husband's brother is a real state agent and we used a form provided by his system. Where can I get a better lease? Can I just modify this one? Do you have a lease template I can use for my next tenant? Thank you so much for your advice and suggestions.
  12. #12
    OHlandlord is offline Member
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    I would suggest you contact a local LL's association in the area. They usually have one that has been vetted by a local attorney and tried in local courts several times. Look for a LL association online, or try searching for a chapter of REIA nearby if you have one. Otherwise, try contacting other LLs in the area with multiple properties. I find that many LLs will happily share with new LLs. REIA sometimes has mentors who will help you with problems such as this.

    If you have to get one of the free or low cost ones online or from a NOLO book, have a local attorney look it over to ensure that it covers all local laws and that it protects you well. You want one that spells out explicitly what the tenant is and is not supposed to do. (My attorney once told me that you want one so restrictive that if a tenant sneezes in the unit, he has violated the lease.) I really think he was kidding, but that he just wanted to emphasize to me that I have to protect myself and my investment by ensuring that my lease covers everything. Personally I use one that is a combination of a NOLO lease (available in many NOLO books for free from the library) and one from the Landlord Protection Association. Still, I had to modify it for local laws and precedents. I am constantly modifying it and the House Rules. Things continue to change yearly and you have to keep up.
  13. #13
    Cvillecpm is offline Senior Member
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    Cool

    Your brother-in-law did you a disservice as he probably provided a VAR, TAR or NoVAR (realtor) lease form.

    Those lease forms include wording for the VRLTA which you sound like you are NOT required to follow.

    Find a local property management firm that has their own common law lease OR a local L-T attorney who can provide one for you. I know Long and Foster has their own common law lease.

    VA has local apt asso which deal with multi-unit and use a VAMA lease which follows the VRLTA which you DON'T want to follow if you are not required to.

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