[excon]

Hello experts:

The tenant is month to month. He paid first, last and a deposit. Prior to the end of the month, the landlord gives the tenant a 30 day notice to vacate at the end of the following month. Shortly thereafter, the tenant writes back saying he's not going to vacate.

Must the landlord wait to see if what the tenant says in his letter is true, or can he file for eviction NOW based upon what the tenant says he's going to do?

excon

[this8384]

I'm not really an "expert" but personally, I would think he'd have to wait to see if the tenant actually refuses to vacate. If the 30-day time frame hasn't passed yet, the landlord has no right to file an eviction notice.

[LisaB4657]

I'd file now. You have it in writing from the tenant that he intends to stay. I'd show that to the judge and request an order that the tenant be evicted if he has not vacated on or before April 30.

[jillianleab]

In Virginia you can file a 30-day non-remedial breach notice with the Sheriff's office. For the reason you simply list "termination of lease agreement". Then if they aren't out you can proceed directly with an unlawful detainer.

At least that's what the Sheriff's office told me...

[this8384]

I'd file now. You have it in writing from the tenant that he intends to stay. I'd show that to the judge and request an order that the tenant be evicted if he has not vacated on or before April 30.

The tenant could send letters stating he's moving out, staying put, buying a baby elephant; whatever he wants to say, he can say. It doesn't mean anything. What matters are his actions. You can't go to court and try to sue somebody because they might owe you money in the future; you have to wait until it actually happens. Any logical judge is going to tell them to come back if the party hasn't complied with the notice to vacate.

[LisaB4657]

The tenant could send letters stating he's moving out, staying put, buying a baby elephant; whatever he wants to say, he can say. It doesn't mean anything. What matters are his actions. You can't go to court and try to sue somebody because they might owe you money in the future; you have to wait until it actually happens. Any logical judge is going to tell them to come back if the party hasn't complied with the notice to vacate.

Oh? Have you appeared before many judges? Has this been your experience?

[this8384]

I've been a landlord for quite a few years now, thank you. I've been to court numerous times over different issues.

The bottom line is that you cannot file for a "maybe." The tenant hasn't actually done anything wrong yet, besides being a jerk. It would be no different than the landlord trying to file a small claims case on the basis that he thinks that the tenant might not pay in the future.

[LisaB4657]

I've been a landlord for quite a few years now, thank you. I've been to court numerous times over different issues.

Ok. (BTW, it might be a good idea if you read someone's profile before you tell them that they don't know what they're talking about.)

The bottom line is that you cannot file for a "maybe." The tenant hasn't actually done anything wrong yet, besides being a jerk. It would be no different than the landlord trying to file a small claims case on the basis that he thinks that the tenant might not pay in the future.

Anticipatory breach. The tenant has done it in writing and the landlord can sue based upon it. As long as the landlord does not request an eviction date that is prior to the notice date then the judge can grant it or not, at his discretion.

[this8384]

{Insulting remark removed-<>}

It's a waste of time to file "anticipatory" anything. Like you said, the judge will grant it based on his discretion; like I said, if the judge is logical he will tell the landlord to come back once the tenant has actually done something wrong.

As I'm sure you know, judges don't like having their time wasted. This is a waste of time of the court's time to file a case and have a pre-trial hearing about something that hasn't even happened.

[Fr_Chuck]

I am sorry, but a tennants written statement is proof in court, and from that it can be filed in court. As a landlord for many years, while not done often, my tennants normally just stay as long as they can promising to pay and never paying.

But this type of case normally does not happen, since tennants will not normally go on record in writing refusing a legal request. While you can not get the eviction prior to the notice date, you can have it arranged to take place afterwards if they are not out.

And while some judges do use some discretion, most merely have to follow the law and if a order is due under law, they issue it.

In this case the tenant did do something, in writing, they refused to accept official notice and did in fact state they were going to breach that contract.

[LisaB4657]

I never once said you didn't know what you were talking about,

Excuse me. You didn't say it. You merely implied it. My mistake.

so you can calm your pretty little self down.

Thank you!

It's a waste of time to file "anticipatory" anything. Like you said, the judge will grant it based on his discretion; like I said, if the judge is logical he will tell the landlord to come back once the tenant has actually done something wrong.

As I'm sure you know, judges don't like having their time wasted. This is a waste of time of the court's time to file a case and have a pre-trial hearing about something that hasn't even happened.

But it HAS happened. The tenant has notified the landlord in writing of his intention to violate the terms of the agreement (the month-to-month tenancy). The legal doctrine of anticipatory breach allows the landlord to file a lawsuit for eviction to prevent the possibility that he will incur damages.

[excon]

Hello again ladies, and you too, Padre:

This was exactly the argument I was having with myself. I even yelled at myself a little too, just like you guys did.

I have my answer now. Thanks to all of you.

excon