The Distress Warrant
A Commercial Landlord’s Guide to Relief when a Tenant Abandons the Property
Tenants come and go. Sometimes they go without warning. In an age of remote work, stay-at-home orders, and supply-chain delays, commercial landlords find themselves in a precarious position with tenants who threaten not to return or who just altogether leave. Of course, a landlord has available to it the traditional contractual remedies and those under the Virginia Landlord Tenant Act. However, there is another remedy often overlooked: the distress warrant.
Given the severity and unique nature of the distress warrant, it is obvious why landlords infrequently rely on this remedy. Should your situation qualify, though, it can be a useful tool. In general, a landlord has a lien for rent and a right of distress or attachment for the same. See Virginia Code § 43-30. The remedy for rent and to enforce the lien is a distress warrant. Virginia Code § 8.01-130.1. The parameters and procedure of the distress warrant are set forth in the code sections that follow. A distress warrant is similar to any other attachment, which allows the sheriff to attach to the tenant’s goods, preventing them from being sold or moved.
This is how a distress warrant works. First, a landlord can file a distress warrant if rent is unpaid, and can levy on any goods that are found in the leased premises or were removed from the premises 30 days prior to the levy. There are some limitations in Va. Code Ann. § 8.01-130.6 related to premises used for residential, farming and agricultural purposes, otherwise, a landlord can levy on goods equal to the amount owed in rent. Next, the landlord has to allege one of the grounds set forth in Va. Code Ann. § 8.01-534 in order to qualify for the pre-trial levy, seizure or attachment. In general, these grounds involve the tenant absconding, selling goods, destroying goods, leaving the Commonwealth, etc. Third, the rent claimed must be due within five years of the time claimed. Fourth, the plaintiff must obtain a bond that meets the requirements of Va. Code Ann.§ 8.01-537.1.
The steps to file a distress warrant are as follows. You need to draft a Complaint that sets forth all of the elements in Va. Code Ann. § 8.01-130.1, et seq. Then you need to fill out an Attachment Summons, Form CC-1442. On this summons, you can chose “Levy only” which is where the Sheriff simply serves the summons and tells the tenant they cannot remove the levied property or “Seizure” which is when the Sheriff takes the property. Attached to this summons, you must include an inventory of the items you wish the Sheriff to levy or seize. You must also include Form DC-407, which is a request for hearing – exemption claim form required for debtors. Then, file these forms with your bond and the Complaint, request the judge sign the Attachment Summons, and the Sheriff will levy on or seize the property.
A distress warrant could be a great way for a landlord to protect its interests, particularly in cases where a commercial tenant is abandoning the property prior to the lease, leaving Virginia, and selling their equipment and/or inventory.