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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86629
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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I own a rental property in Virginia. My tenant has had an

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I own a rental property in Virginia. My tenant has had an unlicensed car in the driveway since May. She has received three notices that this is in violation of the HOA rules. The tenant says the car won't start. The HOA won't have the car towed because it's in the driveway, but they are happy to fine me for having tHis car on my property. Since the tenant won't move the car, can I have it towed away without any liability.
Submitted: 9 months ago.
Category: Real Estate Law
Expert:  Ely replied 9 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Can you please tell me:

1) Do you have a written or verbal agreement with the tenant?
2) If written, does the rental space include the driveway?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 9 months ago.
I have a written lease and the driveway is part of the agreement.
Expert:  Ely replied 9 months ago.
B,

Thank you for your reply.

Since the tenant won't move the car, can I have it towed away without any liability.

The Virginian statutes are not specific to such a nuanced circumstance. In other words, there is no law that states what a landlord's options are in such a unique situation. Therefore, we fall back on common law.

Since the tenant won't move the car, can I have it towed away without any liability.

Yes, but the landlord should first send a WRITTEN, CERTIFIED letter to the tenant giving them a reasonable amount of time to move the vehicle or else be liable for the tow.

The system has come up with a way to deal with this matter that is called "estoppel by aquiescence." Estoppel by acquiescence may arise when one person gives a legal warning to another based on some clearly asserted facts or legal principle, and the other does not respond within "a reasonable period of time". By acquiescing, the other person is generally considered to have lost the legal right to assert the contrary.

In this case, someone in your situation would send a certified letter and give them a few days or a week to move the vehicle because it is in violation of HOA bylaws and is making you liable.

You keep a record of what was sent, so that if they ever try to claim that you took the items without permission, you have the affirmative defense of estoppel by aquiescence.

Let me know if you need a sample letter. I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 9 months ago.
Eli. Great answer. thanks. If you could provide me with a sample letter, that would be great.
Expert:  Ely replied 9 months ago.
Thank you for your kind words.

Dear_____________,

This correspondence is in regards XXXXX XXXXX vehicle, currently parked on the driveway of (address). Please understand that under HOA bylaws, this is a violation. I have received ____ warnings/fines due to the vehicle being there.

You are therefore asked to relocate the vehicle in___ days of your receipt of this certified letter. If this is not done within the allotted time, I may have no choice but to have the vehicle towed and to have you be liable for the tow and storage of the vehicle.

Thank you in advance for your cooperation.

Sincerely,

Signature

Name


Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.
ok. one more thing. I already sent her 3 letters that I received from the HOA saying the car was in violation of their rules. None of these letters were sent by certified mail. What if she never signs for this certified mail? Is sending the certified letters enough or does she need to sign to prove she received them?
Expert:  Ely replied 9 months ago.
B,

Sending a certified letter provides a PAPER TRAIL (whereas others do not).

If she does not sign for the letter, then it will eventually come back to you. One can then claim that it was her own fault for ignoring repeated requests from USPS to come and pick up the letter. So keeping the letter once (if) it comes back should be proof enough.

Also, a copy of the certified letter should also be sent non-certified (so she will get it even if she claims she does not, one way or another).

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 86629
Experience: Qualified attorney in private practice including business, family, criminal, and real estate issues.
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