Most states have an expedited process to evict a residential tenant that breaches the terms of his/her lease or has no right to occupy the premises. In Virginia, this process is accomplished through an action known as an Unlawful Detainer. Typically, a landlord that wants to evict a tenant will file a Summons for Unlawful Detainer in the General District Court and, because Unlawful Detainer actions are entitled to priority on the Court’s docket, a landlord can usually get an order for possession in 30-45 days.
A considerable problem arises when the tenant claims some type of ownership interest in the property. In Virginia, the General District Courts are considered to be “Courts Not of Record” with no authority to adjudicate title to property. Thus, the General District Courts are deprived of jurisdiction if the tenant claims to be occupying the property, not by virtue of a lease, but rather by virtue of the tenant’s ownership interest.
What is a landlord to do when a tenant no longer claims to be a tenant, but instead claims to be the owner of the property? Enter the common law ejectment action. A July, 1895 article in the Virginia Law Register by Thomas Kirkpatrick points out that an action for ejectment is over 400 years old. The Virginia Code retains the cause of action (which was litigated when the Tudor dynasty was on the English throne!) but offers no guidance as to the elements that the plaintiff must prove to prevail. One must look to the common law to determine the elements:
- The Plaintiff must have a subsisting interest in the property, the right to a judicial declaration of ownership and the right to recover possession;
- The Defendant must be actually occupying the premises and claim an ownership interest that is adversely affected by the Plaintiff’s claim of sole and exclusive ownership; and
- The Plaintiff must be dispossessed by the Defendant’s continued occupancy of the Premises.
How, you may be asking, could a tenant not named on the deed possibly claim an ownership interest the property? The first way is often the fault of the landlord: there is a mistake in the lease that creates some type of ownership interest over and above the customary occupancy interest. This scenario is easily avoided by having an experience landlord attorney prepare a proper lease. The second scenario tends to arise when the owner of the property dies and multiple parties claim ownership. Take, for example, the following case that was actually litigated by the attorneys at Gross & Romanick, P.C.:
The owner of a piece of property died intestate. His only statutory heir was his mother. However, at the time of his death, he had a long-time, live-in girlfriend. The mother tried to evict the girlfriend after probating her son’s estate, but the girlfriend claimed she was the deceased’s common law wife entitled to a statutory share of the estate (including ownership in the property). In most circumstances, this case would be easily resolved because Virginia does not recognize common law marriages. However, the girlfriend claimed that the common law marriage existed under Pennsylvania law where she and the son had lived for a period of time before coming to Virginia. Luckily for the mother, the time that the son and girlfriend had lived in Pennsylvania was too short to meet Pennsylvania’s common law marriage definition. Gross & Romanick ultimately convinced a Circuit Court judge to declare title in and award possession to the mother.
Obviously, there is some nuance to the case that we are glossing over in this short article. This case demonstrates the importance of having a knowledgeable landlord/tenant attorney assist with any eviction proceeding, as shrewd tenants often come up with creative legal arguments to extend occupancy.
