The Danger of Accepting More than Full Payment of Rent after a Judgment For Possession Awarded in Virginia

Written by: Mazin Elias Over the past years, many Virginia landlords subject to the Virginia Residential Landlord Tenant Act (VRLTA) who obtained judgments for possession and rent have assumed they can accept post judgment payments of all outstanding rent, court costs and attorney’s fees and proceed with an eviction for up to a year as long as they served a tenant with a reservation of rights letter within 5 days of receipt of payment. However, over the past year some General District Court judges have questioned assumption indicating if a landlord accepts any amount of rent above the judgment amount after obtaining a judgment for possession, then the landlord cannot proceed to evict his/her tenant even if a reservation of rights letter was timely served.    These judges have relied upon the theory of accord and satisfaction as well as their strict examination of Virginia Code § 55-248.34:1(B) which states, in relevant part: “Subsequent to the entry of an order of possession by a court of competent jurisdiction but prior to eviction pursuant to § 55-248.38:2, the landlord may accept full payment of any money judgment, award of attorney fees and court costs, and proceed with eviction provided that the landlord has given the tenant written notice that any such payment would be accepted with reservation and would not constitute a waiver of the landlord’s right to evict the tenant from the dwelling unit…” Given the literal text of this Code section, it seems as though these judges are properly interpreting the law.

Questions exist, however, with the logic behind this provision as drafted. When compared with  Virginia Code § 8.01-471, a judgment for possession can be executed within a year of judgment. Clearly, if that code section is read together with §55-248.34:1(B.) an argument can be made that the General Assembly intended that a landlord be able to continue to accept rent and as long as it issued a written reservation it could exercise on its judgment for possession for a year.  Additionally, the language of 55-248.34:1(B.) is not in line with the practice of limiting the entry of money judgments through the date of judgment. Under Virginia law, a money judgment in an Unlawful Detainer matter that is filed under the VRLTA is pro-rated through the date of judgment. Accordingly, if a hearing is held on the 15th day of the month, a money judgment will only be entered for 15 days of rent even if the tenant is in arrears for the entire month. However, a tenant will remain in possession and owe rent through the month. Under the literal text of §55-248.34:1(B.), if a tenant pays a penny more than the judgment amount, plus costs and attorney’s fees a landlord cannot proceed with its eviction.
Despite these questions, the text of §55-248.34:1(B.) is clear and landlords subject to the VRLTA should think twice before accepting any post judgment rent if they intend to proceed on their judgment for possession.