Basics of Landlord and Tenant

LANDLORD/TENANT LAW

Author: Joseph Shannon, Esq. Rees Broome, PC 1900 Gallows Road Suite 700 Tysons Corner, VA 22182 Office: 703-790-1911 Fax: 703-226-1833 [email protected]

I. INTRODUCTION/VRLTA APPLICABILITY A. Tenant screening and qualifying – legally 1. Fair housing and discrimination laws. 2. Background checks; rejecting/accepting applicants.

B. Plain language lease: essential pro-active and remedial lease provisions

C. Security Deposits, Personal Guarantees and other Protections

D. Late fees: how much is too much?

E. Other Lease Issues

F. Special circumstances: public and subsidized housing, mobile homes: statutory protections and differences in notices and timelines

II. LANDLORDS’ AND TENANTS’ OBLIGATIONS A. Physical Defects on the Premises 1. Residential a. Landlord’s obligation to maintain the premises b. Tenant to maintain dwelling unit 2. Tenants Not Subject to VRLTA

B. Providing Security 1. Statutory Security Measures.

C. Other Risk Management Issues

D. Termination of Lease

III. EVICTIONS

A. Terminating the Tenancy –Notices

B. Notice Requirements and Presumption of Receipt

C. Unlawful Detainer Action

D. Tenant Defenses/Claims

E. Additional Landlord Remedies

F. Eviction Relief for Disabled Tenants G. Fair Credit Reporting Act

IV – MILITARY TENANTS

I. INTRODUCTION

In this section, we will go through the process of accepting applications for and drafting a

lease and go on a step by step journey of important issues to be aware of, for the Landlord and

Tenant alike. Due to the diversity of the issues covered in this section, I tried to prepare an

overview of as many relevant topics as possible rather than a full treatise on each topic covered.

The idea was to go back to the idea of the old law school exam technique of issue

spotting, and provide a resource for practitioners to use 1) to be aware of issues they may not have previously considered; and/or 2) as a starting point to begin an in depth analysis of a specific issue that has come up and that may be touched on here.

VRLTA APPLICABILITY

When beginning to think about leasing or renting a property, the first step begins with

determining whether or not the Virginia Residential Landlord Tenant Act applies (Virginia Code

§ 55-248.2, et seq.) to the rental agreement. What rental agreements are covered/exempted?

 Single family rentals are generally exempt unless the landlord owns and rents more than

2 such properties. Single family rentals can also be covered by the Act if there is a

provision in the lease providing the act applies.

 Apartments are generally covered (be aware of the distinction between apartments and

condominiums).

 Motels/Hotels/Manufactured Homes – there are specific provisions in the Act concerning

these types of properties, motel/hotel rentals may be covered if term of residency is for

more than 30 days.

 VRLTA applies to public housing, Housing Choice Vouchers and Section 8 housing as

long as it is consistent with the applicable federal regulations.

 VRLTA supersedes all other local, county, or municipal ordinances or regulations

concerning the leasing of residential property. However, there may be local regulations

that will apply to residential rentals that are exempted from the VRLTA.

 The VRLTA will apply if the rental agreement contains a provision providing the act

applies.

 See Virginia Code § 55-248.5 for full list of exemptions (long term care facilities,

Fraternity/Sorority houses, co-op’s, primarily used for business, commercial or

agriculture and more).

If a Rental Agreement is one that VRLTA does not apply to, common law and basic contract law will generally apply to it’s provisions. When using this outline, the reader is advised to note whether a provision of the VRLTA is cited referring to any lease provision or conduct and to be aware that the restrictions included in the VRLTA will not apply to types of

Rental Agreements excluded from it’s coverage.

Any Rental Agreement not covered by VRLTA may still be covered by Title 55, Chapter

13 of the Virginia Code, if the rental is for residential purposes. That chapter (55-217 et seq.) contains similar provisions to the VRLTA, however we will avoid an in depth discussion of it’s provisions, as most residential lease provisions will be subject to VRLTA (either by operation of statute or contract). Local county/city rules will also apply. Commercial rental agreements are governed by common law and are not governed under Chapter 13 or VRLTA.

All rental agreements in Virginia are subject to the Virginia Uniform Statewide Building

Code (VUSBC) and the Virginia Maintenance Code (VMC) which establishes the minimum standards for health and safety in all dwellings.

A. Tenant screening and qualifying – legally

1. Fair housing and discrimination laws.

Tenants and Landlords alike should be aware that there are federal, state and local laws in place which will impact the types of questions that can be asked and factors considered when a potential tenant applies for a rental agreement.

The Federal Fair Housing Act (FHA) is the most noticeable law in place which prevents landlords from discriminating against a potential applicant. Extensive information on the applicability of the FHA, including the following information, can be found at www.Hud.gov. A landlord may not take any of the following actions based on race, color, national origin, religion, sex, familial status or handicap:

 Refuse to rent or sell housing

 Refuse to negotiate for housing

 Make housing unavailable

 Deny a dwelling

 Set different terms, conditions or privileges for sale or rental of a dwelling

 Provide different housing services or facilities

 Falsely deny that housing is available for inspection, sale, or rental

 For profit, persuade owners to sell or rent (blockbusting) or

 Deny anyone access to or membership in a facility or service (such as a multiple listing

service) related to the sale or rental of housing.

If a tenant or someone associated with them:

 Have a physical or mental disability (including hearing, mobility and visual impairments, chronic alcoholism, chronic mental illness, AIDS, AIDS Related Complex and mental retardation) that substantially limits one or more major life activities  Have a record of such a disability or  Are regarded as having such a disability

the landlord may not:

 Refuse to allow tenant to make reasonable modifications to the dwelling or common use areas, at the tenants expense, if necessary for the disabled person to use the housing. (Where reasonable, the landlord may permit changes only if the tenant agrees to restore the property to its original condition when you move.)  Refuse to make reasonable accommodations in rules, policies, practices or services if necessary for the disabled person to use the housing.

Locally, counties/cities may have agencies whom are responsible for implementing local rules (which will typically mirrow the FHA restrictions), such as Fairfax County’s Human Rights

Commission.

2. Background checks; rejecting/accepting applicants.

While there are limits on what factors a landlord may consider when deciding whether to

accept an applicant, landlords may still consider proper characteristics of the applicant, such as:

 Credit worthiness

 Income/Employment

 References from prior landlords

 Personal references

Application, Fees and Personal Information

If the Rental Agreement is subject to the VRLTA, the Application fee may not exceed

$50 (in addition to actual costs of applicant screening) or $32 if application is for public housing

or property subject to HUD regulation. Fee for returned check may not exceed $50. Landlord

7 may photocopy applicant’s identification and require applicant to provide their social security or individual tax payer identification number. Virginia Code § 55-248.4.

Other practical information the landlord will want to gather includes information concerning the tenant’s pets, vehicles, all occupants, name of banking institution and employer.

In the event the landlord is in a position to collect past due rent from a non-paying tenant, the vehicle, banking and employment information may be used for post-judgment collection efforts.

Who/What is the Tenant?

It is very important to determine who is personally responsible for the lease. The tenant may be an individual(s) or a business entity. While renting to individuals is pretty straightforward (obtain copy of their identification and any aliases they may go by), a business entity may be a little more tricky.

When dealing with a business entity the landlord must determine exactly what type of entity they are (LLC, Corporation, Partnership, etc.), who is the registered agent, etc. This issue is far more prevalent in commercial leases. If the landlord is not comfortable with the credit worthiness of the entity, they may wish to choose to have the rental done in the name of the individual who is primarily responsible for the entity. Depending on the type of entity, the landlord may be well served to search the Virginia State Corporation Commission listings to ensure they are registered with the Commonwealth.

Determining Income/Credit Worthiness

A common line of thought when determining who can afford what rent is referred to as the “Rule of 36.” Operating on the idea that rental income should not exceed 1/3 of a tenants

income, if you take the monthly rent and multiply it by 36, you will come up with an amount that

represents the annual income needed to qualify. In order to determine the income of an

applicant, the landlord should require at least two recent pay stubs or a statement form an applicant’s employer.

In order to perform a credit check on the applicant, the landlord must “clearly and

accurately disclosed to the consumer that an investigative consumer report including information

as to his character, general reputation, personal characteristics, and mode of living, whichever

are applicable, may be made, and such disclosure (A) is made in a writing mailed, or otherwise

delivered, to the consumer, not later than three days after the date on which the report was first

requested, and (B) includes a statement informing the consumer of his right to request the

additional disclosures provided for under subsection (b) of this section and the written summary

of the rights of the consumer prepared pursuant to section 1681g(c) of this title…” See 15

U.S.C.A. §1681d(a)(1).

Credit checks can be performed through any of the 3 major credit reporting bureaus:

Experian, Equifax and Transunion. Information or how to obtain credit reports is available from

the FDIC at: http://www.fdic.gov/consumers/consumer/news/cnwin0203/three.html

There are now many websites that offer affordable services ($20-$50) to perform tenant

screening and credit checks, which can be found by doing a simple google search. The cost of

this service can be added to any processing fee that you may charge, as permitted by VRLTA.

Copy of Rental Agreement to Tenant

A copy of the executed rental agreement shall be provided to tenant within one month

from the beginning of the rental term, but failure to provide a copy will not affect the validity of

the rental agreement. Virginia Code § 55-248.7.

B. Plain language lease: essential pro-active and remedial lease provisions

Essential Terms of Rental Agreement

The rental agreement may contain provisions regarding rent, late fees, rental term,

termination and other terms not otherwise prohibited by the VRLTA or other applicable law.

Virginia Code § 55-248.7. These are the basic requirements in order for an agreement to

constitute a lease. There are, of course, many more provisions which should be included in

rental agreements in order to protect the interests of both parties.

Prohibited Provisions in Rental Agreement

The VRLTA restricts certain provisions and a rental agreement may not waive portions

of the VRLTA, contain a confessed judgment provision, or release from liability or indemnify

landlord. For a full list of restrictions, see Virginia Code § 55-248.9.

A tenant may recover damages and attorney’s fees against a landlord who brings an

action attempting to enforce a provision prohibited by VRLTA. Landlords should also

familiarize themselves with the Virginia Consumer Protection Act, to avoid additional liability.

Form of Lease

Virginia Code § 55-57 provides a lease should include the date of execution, the parties to the lease, description of the property, rental term, rental amount and method of payment, and the signatures of all parties. This information should be considered the bare minimum, and

should in no way be considered to be all the information that should be included in a lease.

Description of Property

The description of the property subject to the lease should be as descriptive as possible.

While simply listing the street address will suffice, including additional information such as the legal description, tax map ID and descriptions of parts of the property or structures (shed, barn, garage, parking space, etc.) that may or may not be included in the rental will only help to ensure a proper meeting of the minds.

Access to Property by Landlord

While the VRLTA provides for a landlords right to access in both emergency and non-

emergency situations, a lease not subject to VRLTA will need to include a provision in order to

allow the landlord access. Having periodic access to the unit could prove invaluable to a

landlord in protecting the value and condition of the property.

Restrictions on Use

The landlord should contain extensive restrictions on use of the property, allowing a

breach to be declared for excessive noise, noxious or illegal activity, hoarding, alterations to the

unit (except security and fire detection devices permitted by 55-248.18(D) of VRLTA),

compliance with all applicable laws, regulations, ordinances, any activity that may jeopardize the

condition or structural integrity of the property, absolute restriction on subleasing or assigning

and any other activities for which use of the property is not intended.

In addition to the restrictions specifically enumerated, every landlord should consider an

additional provision limiting use of the property by the tenant to the specific purpose for which it

is intended (residential, type of business, etc.). This may prove helpful if a situation arises which

12 was not previously envisioned and is something the landlord does not desire, and would not have agreed to allow, the property to be used for.

In addition to the restrictions on use outlined in the rental agreement, the VRLTA allows a landlord to adopt reasonable rules regulating the use and tenancy of the property, during the rental term as long as it meets the criteria as provided in Section 55-248.17.

Affirmative Actions Required of Tenant

Since there are activities that a landlord would not want a tenant engaging in, it only follows there are actions the landlord would require the tenant to perform as well. These affirmative actions should include a requirement for learning of and complying with any applicable community association rules and regulations (as most community association documents will hold an owner liable for the conduct of their tenants), to occupy premises, maintain appliances (stove, dish washer, air filter, fire place, etc.), maintain premises in a clean and sanitary condition, notify landlord of any situations that may jeopardize the condition or structural integrity of the property (water leak, insect/rodent infestation, etc.) or of any malfunctioning appliances, only use property for specific use, maintain occupancy of property, and notify landlord of extended absence from property.

Lead Paint Disclosure

If the property to be leased was built before 1978, the landlord should familiarize themselves with the EPA’s disclosure requirements concerning lead paint. Informational pamphlets and disclosure forms are available online at www.epa.gov.

How Notice to be Provided

Any notice that is given pursuant to a requirement of the VRLTA should be sent by first class and certified mail, and the sender should retain proof of mailing. Notice may be given electronically if provided for in the lease. Virginia Code § 55-248.6. Otherwise, the agreement should provide how and where notices are to be sent.

Types of Breach/Default

There are two types of Breach/Default, which are monetary (failure to pay rent) and non-

monetary (failure to comply with use restrictions, provisions of agreement, etc.). The lease

should clearly define what will constitute an event of default which will trigger the landlord’s

right to terminate the rental agreement, and how termination is to be conducted.

The language granting the landlord the right to terminate the agreement should be broad

and state that it can be for any default, breach or violation of any provision of the agreement and

is to be exercised in the landlord’s discretion. Be sure that the right to terminate the lease is not

drafted as to give the effect that a breach automatically terminates the lease, as a landlord will

often not desire to terminate the agreement based on a breach/default.

Attorney’s Fees

The VRLTA prohibits a landlord from including a provision allowing for attorney’s fees

other than what is expressly allowed by the Act. Virginia Code § 55-248.9. VRLTA provides a landlord may recover attorney’s fees based on a tenants failure to vacate. Virginia Code § 55-

248.20. In order to ensure proper authority to collect attorney’s fees, the agreement should

provide the landlord may collect reasonable attorney’s fees that are allowed or not otherwise

disallowed by the VRLTA.

Management Agent Disclosure

If a manager agent is used to manage the property the landlord must provide the name and contact information of the manager and whom (either an owner or a manager) may receive notice and service of process on behalf of the landlord. Virginia Code § 55-248.12.

Jury Trial Waiver Provision

In order to save attorney’s fees in the event a dispute arises that needs to be litigated, a landlord may desire to include a waiver of right to jury trial provision in the lease. Jury trials are typically more time consuming and require more preparation, and thus would generate higher legal fees.

Extension/Renewal/Termination of Lease

In order to avoid any confusion as to the rent and term of lease upon the expiration of the rental term when a tenant remains and continues to pay rent to the landlord, the agreement should expressly lay out the notice that is required for extending or terminating the lease. The provision should address the rent that is to be charged, how the security deposit is to be treated, whether any inspection of the premises is to occur, etc. Tenants and landlords alike are advised to proactively communicate with their counterpart regarding their attention to vacate/extend the lease, and to do so in writing.

Multiple Tenants

When dealing with multiple tenants, the lease should clearly indicate that the tenants are

jointly and severally liable. The provision should also indicate that a default/breach of the rental

agreement by any one tenant is grounds for terminating the rental agreement as to all tenants.

Other Issues

Depending on the specific nature of the rental property, the lease should clearly provide

for parking of vehicles, payment of utilities, additional charges (late fee, bounced check, etc.),

move-in and move-out inspections, authorized occupants, maintenance duties and

responsibilities of landlord/tenant, responsibility to maintain renter’s insurance, and what happens in case of the death of a tenant or landlord.

C. Security Deposits, Personal Guarantees and other

Protections

Security deposit for damages

Landlord may not require a security deposit in excess of two month’s periodic rent. The rental agreement should contain provisions entitling the Landlord, upon termination of the agreement, to apply the deposit to any rent or late fees, damages as a result of the tenants failure to maintain the Unit or other damages or charges incurred by the Landlord for which the tenant is responsible. Virginia Code § 55-248.15:1. For a rental agreement not subject to VRLTA, there is no restriction on the amount of security that can be requested.

While any landlord would desire to require the highest maximum security deposit, a landlord must factor in reasonableness in order to ensure rentability, especially with the current economy. Requiring too large a security deposit may eliminate potential tenants who would otherwise be able to afford the monthly rent. A landlord may also wish to consider allowing the tenant to pay the security deposit in monthly installments (until they reach the allowable limit).

Pet Deposit

Any amount obtained as a pet deposit will be considered party of the security deposit and landlords must be careful to ensure that the pet deposit and security deposit do not total more than two months rent. However, a landlord may require a non-refundable “pet fee” which would not count towards the total security deposit.

Interest on and return of Security Deposit

VRLTA does not require any security deposits which are held less than 13 months to

accrue interest. For any deposit held more than 13 months, a landlord need look to 55-248.15:1

and 55-248.15:2 for requirements of calculating interest that is to accrue on the deposit. 55-

248.15:1 also provides for the procedures to be followed upon the termination of the lease, how

the deposit is to be returned and what amounts owed to the landlord may be deducted from it.

If the agreement is not subject to the VRLTA, it should contain a provision detailing what

may be deducted from the deposit, whether or not it will be applied to rent and upon whose

discretion, and how/when it is to be returned to the Tenant. A prudent landlord will chose to

have a move out inspection pursuant to the terms of VRLTA or a provision in the lease

agreement.

Return of Security Deposit for Failure to Rent

Any Deposit submitted with a rental application must be refunded to applicant within 20

days if applicant fails to rent the property, unless the deposit was made by cash or certified

funds, in which case the deposit must be returned within 10 days. The landlord may deduct any

actual damages and expenses from the deposit if they provide an itemized list of said expenses

and damages. Virginia Code § 55-248.6:1. The application should include clear instructions on where the deposit is to be returned.

Guarantee/co-signors

If the creditworthiness and ability of the Tenant to pay is questioned, a landlord may

desire to allow or require another person to personally guarantee any future debt owed by the

tenant, or to be personally responsible for the payment obligations. The provision should clearly

18 lay out the liability the guarantee/co-signor is assuming and that they are jointly and severally liable with the tenant, but are not a co-tenant or an occupant.

Damage Insurance Coverage

A landlord may elect to carry Damage Insurance rather then require a security deposit.

The cost of the coverage may be included in the periodic rental payment. A landlord may not maintain such coverage, in addition to a security deposit, “if the total amount of any security deposits and the cost of damage insurance premiums exceeds the amount of two months’ periodic rent”. Virginia Code § 55-248.7:2.

Renter’s Insurance

A landlord may also obtain renter’s insurance on behalf of the tenant, or require the tenant to obtain rental insurance. If the tenant is to obtain the insurance, the rental agreement should lay out the policy requirements and the proof to be provided to landlord. If the landlord prefers to take out the policy himself he may choose to factor in the costs to the rental payment.

A landlord should also check their homeowners policy to see what is covered under the rental and what additional coverage is needed.

D. Late fees: how much is too much?

There are no statutory limitations on how much of a late fee may be charged by a landlord, and the terms of the agreement will control. Specifically, VRLTA provides that a rental agreement may provide for the payment of a late fee due to a late rental payment. 55-

248.7(A).

While there are little to no restrictions on the amount of a late fee that may be charged, landlords still should avoid any type of fee that would “shock the conscience” of a Judge. The provisions of the rental agreement should clearly lay out when payments are due, what (if any) grace period is allowed, and the amount of the late fee.

E. Other Lease Issues

Unsigned Rental Agreement

Acceptance of rent without reservation by the landlord grants validity to an unsigned rental agreement as if the landlord had signed it. Virginia Code § 55-248.8.

Confidentiality of Financial Records

A landlord should take careful measures to protect the confidentiality of a tenant’s personal information and should not share the information with any outside parties unless required or authorized to by law. The measures should include procedures for how to store the information and how to protect from unintentional dissemination.

Occupancy Limits

Local county/city code, along with the VUSBC place limits on the number of people who may live in a dwelling. Landlords and tenants should familiarize themselves with the local restrictions to ensure compliance. The VUSBC provides any bedroom for one person must have

70 square feet of space, 100 s.f. for two and 150 s.f. for three. Additionally, the room used for sleeping must provide privacy, adequate light and ventilation, and two means of exit (one of which must lead directly to the outside, ie. a window).

Utilities

A landlord should discuss with the tenant, and reflect that discussion through a provision in the rental agreement, discuss how utilities are to be handled. A landlord may choose to keep the utilities in their name and charge the tenant monthly (this will ensure the landlord has control

over ensuring the utilities are paid); or they may choose to have the tenant responsible for paying

the utilities and having the services placed in their name.

Recent legislation in Virginia now allows water authorities to charge a tenant a security

deposit representing three to five months of service charges, which greatly protects a landlord.

The legislation requires any overage that exists, after the deposit is applied, must first be pursued

against the tenant before a lien can be placed on the landlord’s property. A landlord may still

choose to require an additional deposit (being careful to remain under the two month rental payment threshold) to cover any other utility charges which they may be liable for as owner of the property.

Negligence

Landlords should be wary of allowing dangerous conditions to exist on their property,

whether they be structural or otherwise. Recently in Maryland, an owner was found

contributorily negligent due to their knowledge of their tenant having a “dangerous pit bull” on

the premises.

Landlords need to be careful in their lease drafting to allow for termination of the rental

agreement for a tenants allowance of conditions to exist that could create liability on behalf of

the landlord. Likewise, a tenant should be proactive in monitoring the condition of the property

and the nature of the tenants occupancy so that they are aware of any potential issues.

F. Special circumstances: public and subsidized

housing, mobile homes: statutory protections and

differences in notices and timelines

Public and Subsidized Housing

Types of public housing programs include local, state and federal. Overall, the

Department of Housing and Urban Development is largely responsible for the providing of funds for such programs.

On the local level, counties/cities may receive annual subsidies from HUD for the

creation of Public Housing programs. Each locality will have guidelines outlining their selection

criteria for acceptance to the program, but these guidelines must comply with HUD rules.

Selection criteria will often be based on type of household, income, residency and rent burden on

tenant.

At the state level, the Virginia Housing Development Authority is a quasi-government

not-for-profit agency. The mission of the VHDA is to increase affordable housing opportunities

for low and moderate income households in the commonwealth. More information can be

obtained from their website at http://www.vhda.com/renters. Virginia Code Title 36 contains the

provisions applicable to housing authorities within the Commonwealth.

HUD also provides incentives to apartment owners to be able to offer reduced rents to low income tenants. More information can be found by going to www.hud.gov and navigating to

their Virginia page.

Additional types of subsidized housing programs include:

 The Farmer’s Home Administration Rural Rental Projects through the Department of

Agriculture to offer subsidized rental housing to the rural elderly. More information on

rural housing can be found online at www.rurdev.usda.gov/va.

 Section 8 programs (available through HUD but administered through local agencies)

whereby owners receives subsidies for either substantial rehabilitation or new

construction of housing projects dedicated for low income use. Alternatively, a tenant

may receive a Section 8 voucher which will pay a portion of the tenants rent at qualifying

dwellings.

Restrictions on Public Housing and Subsidized Housing

In order for a tenant to be accepted for a voucher, public housing or other similar assistance program, they will have to meet certain income, family makeup, and citizenship requirements. This criteria is in addition to the selection criteria preferences which may be implemented by any individual Public Housing Agency.

Unit size issues also come into play. Generally, HUD funding will not be permitted to any occupancy situation where there are more than two persons per bedroom in a dwelling.

Depending on the type of program, there may be restrictions on the amount of a security deposit that may be received.

Notice to Public Housing Occupants

Virginia Code § 55-248.6 provides:

No notice of termination of tenancy served upon a tenant by a public housing authority organized under the Housing Authorities Law (§ 36-1 et seq.) of Title 36 shall be effective unless it contains on its first page, in type no smaller or less legible than that

otherwise used in the body of the notice, the name, address and telephone number of the legal services program, if any, serving the jurisdiction wherein the premises are located.

Mobile Homes

The Manufactured Home Lot Rental Act contains many similar provisions to the

VRLTA, but diverges in the following areas:

 The landlord is required to offer a lease of not less than one year (to all perspective year

round tenants – a lease of less than one year is permitted if sought by the tenant).

 Agreements are automatically extended for one year unless notice of termination is

provided 60 days prior to the expiration of the lease.

 Landlords of mobile homes are more restricted in the reasons for which they may evict

(see 55-248.50:1)

II. LANDLORDS’ AND TENANTS’ OBLIGATIONS

A. Physical Defects on the Premises

Physical defects on the premises can cause personal injuries and lead to lawsuits against

the landlord. In addition, defects can lead to claims for breach of the contract, breach of the covenant of quiet enjoyment and constructive eviction. Understanding who “is responsible for preventing and/or repair of the physical defects is, the first step for landlords in avoiding many of these problems. The responsibility can vary greatly for commercial and residential landlords.

Until recently, responsibility also varied greatly for multi-family residential landlords and small landlords.

1. Residential

a. Landlord’s obligation to maintain the premises:

A residential landlord’s common law duty to maintain leased premises has been greatly modified by statute. With the passage of the Virginia Residential Landlord Tenant Act

(“VRLTA”) in 1974, owners of multiple rental units were required to adhere to minimal standards for providing a habitable rental unit. Landlords who owned only a few units were exempt from these statutory requirements. Since 2001, landlords exempt under the VRLTA, are now required to comply with many of the same minimal standards for providing a habitable rental unit.

i. Duties imposed by VRTLA.

Pursuant to Virginia Code § 55-248.13-A, the landlord’s primary maintenance requirements are as follows:

A. The landlord shall:

1. Comply with the requirements of applicable building and housing codes materially affecting health and safety;

2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;

3. Keep all common areas in a clean and structurally safe condition;

4. Maintain all electrical, plumbing, sewer, HVAC and other facilities and systems, including elevators in good and safe working order;

5. Maintain the premises in such a condition to prevent the accumulation of moisture and the growth of mold, and to promptly respond to any notices from tenants regarding moisture or mold;

6. Provide and maintain receptacles for collection, storage and removal of trash and other waste incidental to the occupancy of dwelling units;

7. Supply running water and reasonable amounts of hot water at all times and reasonable air conditioning if provided and heat in season except where the dwelling unit is so constructed that heat, air conditioning or hot water is generated by an installation within the exclusive control of the tenant of supplied by a direct public utility connection.

8. Maintain any carbon monoxide alarm which that has been installed by the landlord.

B. The landlord shall perform the duties imposed by subsection A in accordance with

law; however, the landlord shall only be liable for the tenant’s actual damages proximately caused by the landlord’s failure to exercise ordinary care.

C. If the duty imposed by subdivision A 1 is greater than any duty imposed by any

other subdivision of that subsection, the landlord’s duty shall be determined by reference to

subdivision A 1.

D. The landlord can have the tenant agree to perform items 3, 6 and 7 as well as

specified repairs and maintenance, but only if the transaction is entered into in good faith and not

for the purposes of avoiding the landlord’s obligations.

ii. Duty imposed on landlords exempt from the VRLTA

With the enactment of Virginia Code §55-225.3 in 2001, all landlords of “dwelling units”

are required to comply with specified maintenance responsibilities.

A. The landlord shall :

1. Comply with the requirements of app1icable building and housing codes materially affecting health and safety;

2. Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition;

3. Keep all common areas in a clean and structurally safe condition;

4. Supply running water and reasonable amounts of hot water at all times and reasonable air conditioning if provided and heat in season except where the dwelling unit is so constructed that heat, air conditioning or hot water is generated by an installation within the exclusive control of the tenant or supplied by a direct public utility connection; and

5. Maintain the premises in such a condition to prevent the accumulation of moisture and the growth of mold, and to promptly respond to any notices from tenants regarding moisture or mold.

B. The landlord shall perform the duties imposed by subsection A in accordance with

law; however, the landlord shall only be liable for the tenant’s actual damages proximately caused by the .landlord’s failure to exercise ordinary care.

C. If the duty imposed by subdivision A 1 is greater than any duty imposed by any

other subdivision of that subsection, the landlord’s duty shall be determined by reference to

subdivision A 1.

Section 55-225.3 provides that the landlord and tenant may agree in writing that the tenant perform the landlord’s duties specified in subdivisions A 2, 3 and 4 and also specified repairs, maintenance tasks, alterations and remodeling only if the transaction is entered into in good faith and not for the purpose of evading the obligations of the landlord.

The Virginia Residential Landlord and Tenant Act places several obligations on tenants and provide specific remedies for landlords if tenants violate the provisions.

b. Tenant to maintain dwelling unit

1. Tenants under VRLTA

Section 55-248.16 of the Virginia Act requires that:

A. In addition to the provisions of the rental agreement, the tenant shall:

1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;

2. Keep that part of the dwelling unit and the part of the premises that he occupies and uses as clean and safe as the condition of the premises permit;

3. Keep that part of the dwelling unit and that part of the premises that he occupies free from insects and pests, as those terms are defined in §3.2-3900; and to promptly notify the landlord of the existence of any insects or pests.

4. Remove from his dwelling Unit all ashes, garbage; rubbish and other waste in a clean and safe manner and in the appropriate receptacles provided by the landlord, if such disposal is on the premises;

5. Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;

6. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances including elevators in the premises and keep all utility services paid for by the tenant to the utility service provider or its agent at all times during the term of the rental agreement;

7. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or permit any person to do so whether known by the tenant or not;

8. Not remove or tamper with a properly functioning smoke detector, including removing any working batteries, so as to render the smoke detector inoperative;

9. Not remove or tamper with a properly functioning carbon monoxide detector installed by the landlord, including removing any working batteries, so as to render the carbon monoxide detector inoperative;

10. Use reasonable efforts to maintain the dwelling unit and any other part of the premises that the tenant occupies in such a condition as to prevent accumulation of moisture and the growth of mold, and to promptly notify, the landlord in writing of any moisture accumulation that occurs or of any visible evidence of mold discovered by the tenant;

11. Not paint or disturb painted surfaces or make alterations in the dwelling unit without the prior written approval of the landlord if dwelling built before 1978 and landlord has provided lead paint disclosure and lease requires owner approval to paint;

11. Be responsible for his conduct and the conduct of other persons on the premises with his consent whether known by the tenant or not to ensure that his neighbors’ peaceful enjoyment of the premises will not be disturbed; and

12. Abide by all reasonable rules and regulations imposed by the landlord pursuant to § 55-248.17 of The Virginia Residential Landlord and Tenant Act.

2. Tenants Not Subject to VRLTA

An almost identical statute became effective July 1, 2001 applying to tenants of landlords exempt from the VRLTA. Section 55-225.4 places many of the same maintenance responsibilities on tenants exempt from the VRLTA and essentially provides that in addition to the provision of the rental agreement, the tenant shall:

1. Comply with all obligations primarily imposed upon tenants by applicable provisions of building and housing codes materially affecting health and safety;

2. Keep that part of the premises that he occupies and uses as clean and safe as the condition of the premises permit;

3. Remove from his dwelling unit all ashes, garbage, rubbish and other waste in a clean and safe manner;

4. Keep all plumbing fixtures in the dwelling unit or used by the tenant as clean as their condition permits;

5. Use in a reasonable manner all electrical, plumbing, sanitary, heating, ventilating, air-conditioning and other facilities and appliances;

6. Not deliberately or negligently destroy, deface, damage, impair or remove any part of the premises or permit any person to do so whether known by the tenant or not;

7. Not remove or tamper with a properly functioning smoke detector, including removing any working batteries, so as to render the smoke detector inoperative;

8. Use reasonable efforts to maintain the dwelling unit and any other part of the premises that the tenant occupies in such a condition as to prevent accumulation of moisture and the growth of mold, and to promptly notify, the landlord in writing of any moisture accumulation that occurs or of any visible evidence of mold discovered by the tenant.

9. Be responsible for his conduct and the conduct of other persons on the premises with his consent whether known by the tenant or not, to ensure that his neighbors’ peaceful enjoyment of the premises will not be disturbed; and

10. Abide by all reasonable rules and regulations imposed by the landlord.

2. Common Law - Commercial landlord duty to maintain premises

Under common law, a tenant who has exclusive possession and control of a premises, absent an agreement to the contrary, is responsible for the maintenance and repair of the premises. The tenant takes the property “as is” and the tenant is responsible for maintaining and repairing the property. In January 2000, the Virginia Supreme Court held in Wohlford v.

Ouesenberry that the Uniform Statewide Building Code (the BOCA Code) does not modify the common law rule that a tenant who has exclusive possession and control of the premises is responsible for the maintenance and repair of the premises so long as the landlord and tenant do not have a contrary agreement.

B. Providing Security

1. Statutory Security Measures.

Certain security measures are mandated by state and local codes. Other security measures may be implemented by the landlord’s discretion in response to occurrences on or near the property or for other reasons including marketing. Virginia Code §55-248.13:1 provides that

any county city or town may require a landlord who rents five or more units in on building to install:

Dead-bolt locks which meet the requirements of the Uniform Statewide Building Code (“USBC” found at Sec. 36-97 et seq.) for new construction and peepholes in any exterior swinging (non- glass) entrance door to the unit;

Manufacturer’s locks which meet the requirements of the USBC and removable metal pins or charlie bars in accordance with the USBC for exterior sliding glass doors on any levels designated in the ordinance (not just the first floor);

Locking devices on all exterior windows which meet the requirements of the USBC.

Virginia Code §55-248.18 also allows the tenant to install burglary prevention devices,

including chain latches, approved by the landlord, provided that the installation does not do

permanent damage to the unit and a duplicate of all keys and operation instructions for all devices are given to the landlord. A tenant, who has obtained a restraining order or peace order, can request that the landlord install new locks or security devices installed (or that the landlord

allows the tenant to install them) pursuant to Virginia Code §55-248.18:1. The landlord who has

received a copy of the court order may not give a copy of the key to the person excluded from

the premises.

C. Other Risk Management Issues

In addition to defending personal injury claims, the landlord’s failure to warn of defects

and/or failure to make repairs can give tenants the right to terminate the lease and/or seek actual

damages for the landlord’s failure to make repairs. Tenants subject to the VRLTA have statutory remedies that they may pursue for relief to the landlord’s failure to make repairs. Tenants not subject to VRLTA may still assert claims under common law and/or contractual clauses for constructive eviction and breach of the covenant of quiet enjoyment.

D. Termination of Lease

1. The tenant’s right to terminate the tenancy due to noncompliance with the rental agreement or with law by the landlord:

Virginia Code § 55-248.21 provides for the tenant to serve on the landlord a 21-30 day

notice claiming material noncompliance with the rental agreement or a noncompliance with the

Act materially affecting health or safety. Alternatively, if the landlord commits a breach which

is not remediable, the tenant can instead serve a 30-day notice of termination of the tenancy. The

written notices from the tenant must specify the acts and omissions constituting the breach. The tenant is authorized by this section to recover damages and obtain injunctive relief for noncompliance by the landlord, as well as reasonable attorneys’ fees – unless the landlord proves by a preponderance of the evidence that the landlord’s actions were reasonable under the circumstances.

There is a similar provision in Virginia Code § 55-248.23 authorizing the tenant to serve notice if the landlord willfully or negligently fails to supply heat, running water, hot water, electricity, gas or other essential services. After allowing a reasonable time to correct the breach, the tenant can collect damages based upon the diminution in the fair rental value of the dwelling unit, or procure reasonable substitute housing during the period of the landlord’s noncompliance.

The section also authorizes recovery of reasonable attorneys’ fees.

2. Tenants’ Assertions; affirmative and defensive use of rent escrows in housing actions:

Tenants under the VRLTA cannot withhold payment of their rent in order to try to force a

landlord to make repairs and obtain offsetting rent reductions for the existence of defective

housing conditions. The proper method to address failure to maintain a residential dwelling (if

the landlord does not reasonably and timely make repairs) is to file a tenant’s assertion and

complaint. The Virginia Judicial System has a form for filing this affirmative action: DC-429.

a) Affirmative assertion of habitability problems:

Affirmative assertion of existence of defective housing conditions is addressed in

Virginia Code§ 55-248.27. Part A of this section of the Act identifies which violations may be addressed by the tenant’s assertion.

In order to obtain relief, the tenant needs to show the court:

 The landlord had a reasonable opportunity after such notice to remedy the conditions; what amount of time is reasonable is left up to the court, but the Act establishes a rebuttable presumption in § 248.27-B(1) that 30 days from receipt of the notice is reasonable;

 The tenant has paid into court the rent due under the rental agreement, within 5 days of the due date; and,

 The tenant has not caused the defective conditions and has not unreasonably refused entry to allow the landlord to make repairs.

If the elements of § 55-248.27 are established, the General District Court may order the rental agreement terminated and disburse the money escrowed with the Court to either the tenant and/or to the landlord, in accordance with the Act. The Court may also order continuation of escrow of the rent until all of the defective conditions are corrected, and may order: “the amount of rent, whether paid into the escrow account or paid to the landlord, be abated as determined by the court in such an amount as may be equitable to represent the existence of the condition or conditions found by the court to exist.”

Virginia Code § 55-248.27-C(4) shifts the burden of proof to the landlord:

In all cases where the court deems that the tenant is entitled to relief under this chapter, the burden shall be upon the landlord to show cause why there should not be an abatement of rent.

If the defective conditions continue for six months without reasonable attempts by the

landlord to remedy the conditions, the court is directed by § 248.27-C(8) to award all money in

the escrow account to the tenant.

If the tenant has not sought inspection and correction of defective housing conditions

through the local governmental code enforcement agency before giving notice and filing the

court action, the court has authority to refer the matter to such agency for investigation.

b) Defensive assertion of habitability problems:

Virginia Code § 55-248.25 provides an opportunity for a tenant to defend an unlawful

detainer action on the basis of a landlord’s failure to maintain the habitability of the dwelling.

Part A of the statute provides:

In an action for possession based upon nonpayment of rent or in an action for rent by the landlord when the tenant is in possession, the tenant may assert as a defense that there exists upon the leased premises, a condition which constitutes, or will constitute., a fire hazard or a serious threat t6 the life, health or safety of occupants thereof, including but not limited to a lack of heat or running water or of light or of electricity or adequate sewage disposal facilities or an infestation of rodents, or a condition which constitutes material noncompliance on the part of the landlord with the rental agreement or provisions of law.

The statutory prerequisites for this defense are the same as for the affirmative tenant’s

assertion: prior written notice to the landlord; a reasonable opportunity to repair the defective

conditions; no responsibility for the tenant in either causing the conditions or in failing to

cooperate with efforts to repair them; and, payment into court of the amount of tent found by the court to be due and unpaid to the landlord.

The General District Court may order a set-off to the tenant of the rent, “in such amount as may be equitable to represent the existence of any condition.” § 248.25-C(1).

c) Constructive Eviction

In order for a constructive eviction to occur, the landlord’s intentional conduct must permanently deprive the lessee of the beneficial enjoyment of the premises. Cavalier Square

Limited Partnership v. Virginia Alcoholic Beverage Control Board, 246 Va. 227, 231, 435

S.E.2d 392 (1993). Ordinarily, the tenant must completely abandon the premises. Id.

E. Abandoned Property

Section 55-248.38:1 provides that if any items of personal property are left in the premises or in any storage area provided by the landlord after the rental agreement has terminated and delivery of possession has occurred, the landlord may consider such property to be abandoned. The landlord may dispose .of the property so abandoned as the landlord sees fit or appropriate, provided the landlord has:

(i) given a termination notice to the tenant in accordance with the Virginia Code; which includes a statement that any items of personal property left in the premises would be disposed of within the twenty-four hour period after termination;

(ii) given written notice to the tenant in accordance with Va. Code Sec. 55-248.33 [Remedies for absence, nonuse and abandonment-tenant given seven days to respond to written notice], which includes a statement that any items of personal property left in the premises would be disposed of within the twenty-four hour period expiration of the seven-day notice period; or

(iii) given a separate written notice to the tenant, which includes a statement that any items of personal property left in the premises would be disposed of within twenty-four hours after expiration of a ten-day period from the date such notice was given to the tenant.

The tenant shall have the right to remove his personal property from the premises at reasonable times during the 24 hour period after termination or at such other reasonable times until the landlord has disposed of the remaining personal property of the tenant. During the 24 hour period and until the landlord disposes of the remaining personal property of the tenant, the

landlord shall not have any liability for the risk of loss for such personal property. If the landlord fails to allow reasonable access to the tenant to remove his personal property as provided in the code section, the tenant shall have a right to injunctive or other relief as provided by law. If the landlord receives any funds from any sale of abandoned property as provided in the code section, the landlord shall pay such funds to the account of the tenant and apply same to any amounts due the landlord by the tenant, including the reasonable costs incurred by the landlord in selling, storing or safekeeping such property. If any such funds are remaining after application, the

remaining funds shall be treated as security deposit and applied or returned accordingly.

However, the provisions of Sec. 55-248.38:1 of the Virginia Residential Landlord and Tenant

Act shall not be applicable if the landlord has been granted a writ of possession for premises and

the writ has been completed.

III. EVICTIONS

Evictions: Excuses and Traps When things Go Bad

A. Terminating the Tenancy –Notices

1. 5 day notice to pay or quit for nonpayment of rent

If rent is unpaid when due and the tenant fails to pay rent within five days after written

notice is served on him notifying him of his nonpayment and the landlord’s intention to

terminate the lease if rent is not paid, the landlord may terminate the lease and obtain possession

of the premises. The tenant does have one right of redemption in a twelve month period, but

must pay the full amount due on or before the first return date. Section 55-248.31(F) of the

Virginia Residential Landlord Tenant Act (“Virginia Act”).

The rent sought in the notice must be for the exact sum owed, or the notice can be held to be invalid. See, Johnston v. Hargrove, 81 Va. 118 (1885). Perhaps the most common issue that may invalidate a properly served 5 day pay or quit notice is inclusion of an excessive late fee in the amount demanded.

2. 21/30 day notice for remedial breaches

Section 55-248.31(A) of the Virginia Act provides that where the tenant’s breach of the

lease is of a type that may be remedied, such as keeping a pet in violation of the lease, the

landlord must provide written notice specifying the acts or omission constituting the breach and

provide twenty-one (21) days for the tenant to cure the breach. In addition the notice must state

that the lease will terminate in thirty (30) days if the breach is not cured.

3. 30 day notice for non-remedial breaches

Section 55-248.31(C) of the Virginia Act provides that where the tenant’s breach is of a

type that is non-remediable, the landlord may terminate the lease by properly giving thirty (30)

days written notice of termination. The notice must specify the acts or omissions and that they

are non-remediable. The notice must also state a date of termination not less than thirty (30)

days after receipt of the notice.

4. Immediate termination

Pursuant to Section 55-248.31(C), where the tenant’s breach involves a criminal or

willful act, which is not remediable and poses a threat to the health or safety, the landlord may

terminate the lease immediately and proceed to obtain possession. The landlord does not have to

wait for a conviction if the criminal act involves illegal drug activity, but must prove the acts by a preponderance of the evidence.

5. Early termination

If the tenant commits a breach which was previously remedied, and commits a

subsequent intentional breach, the landlord may provide notice that the lease will terminate upon

a date not less than 30 days after receipt of the notice. Section 55-248.31(E) of the Virginia Act

6. Nonrenewal notice

Pursuant to Section 55-248.37, a landlord may provide a tenant whose lease is about to expire a 30-day notice (at least 30 days prior to the next rent due date) that the lease will not be renewed and that the tenant is to vacate at the end of the lease term. The same notice provision applies to a tenant who is on a month to month lease.

7. Early termination by tenant with cause

Section 55-248.21:1 of the Virginia Act allows for early termination of rental agreements

by military personnel and section 55-248.21:2 of the Virginia Act allows for early termination of

rental agreements by victims of family abuse, sexual abuse, or criminal sexual assault. The

sections provide how each tenant may qualify for early termination. If a tenant so qualifies, they

may serve on the landlord a written notice of termination not less than 30 days after the date on

which the next rental payment is due.

B. Notice Requirements and Presumption of Receipt:

Virginia Code § 55-248-A provides:

A person shall be deemed to have notice of a fact if he has actual knowledge of it; he has received a notice or notification of it; or, from all of the facts and circumstances known to him at the time in question he has reason to know that it exists.

This is relevant to the fairly common claim by tenants in unlawful detainer actions brought for non-payment of rent, claiming non-receipt of the 5 day pay or quit notice.

Presumably (in most cases) a tenant will know if the rent has not been paid. Denying receipt of

the 5 day pay or quit notice, by itself, will not ordinarily provide a defense to an eviction action.

The next provision of this section of the Act makes this clear:

Virginia Code § 55-248.6-B provides:

A person “notifies” or “gives” a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it. A person “receives” a notice or notification when it:

a. Comes to his attention; b. Is served upon the recipient by regular mail, postage prepaid, and there is sufficient proof of mailing which may be either a United States postal certificate of mailing or a certificate of service confirming such mailing prepared by the sender; or c. Is served upon the recipient by hand delivery in accordance with Chapter 8 (§ 8.01-285 et seq.) of Title 8.01, which provides for personal or substituted service, with the exception that the sender, whether the landlord, tenant or sender’s agent, may serve notices hereunder, when the sender retains a certificate of mailing prepared by him.

Simply stated, a tenant receives notice when it is properly served, whether or not the notice is actually received. Proper service of a notice establishes a presumption that the notice is received.

Pursuant to § 55-248.9:1-B tenants may designate any third party (a relative, a neighbor, a friend, a community agency, a church etc.) for receipt of a duplicate copy of any written notice and/or summons issued by the landlord. With an eviction for non-payment of rent, providing notice to a third party of the 5 day pay or quit notice would increase the time available for a relative, friend or agency to potentially help to prevent eviction of a tenant.

C. Unlawful Detainer Action

1. Preparation

To evict a tenant from property, the landlord may complete a form entitled Summons for

Unlawful Detainer and file it in the General District Court in his jurisdiction where the property is located. Care should be taken to complete the form accurately and completely. An online form can be found at: http://www.courts.state.va.us/forms/district/dc421.pdf, and additional instructions may be found at: http://www.courts.state.va.us/forms/district/dc421inst.pdf. When completing the Unlawful Detainer ensure the following:

 Make sure that the name of tenant on the notice is spelled the same as on the lease,

unlawful detainer or other documents;

 Make sure that the address of tenant is the same as on the lease, unlawful detainer or

other document;

 The amount in the notice must be accurate and agree with the lease and unlawful

detainer;

 Make sure you do not file the Unlawful Detainer until after the termination date in the

notice.

A copy of Summons for Unlawful Detainer will be served on the tenant by a deputy sheriff. The

Summons for Unlawful Detainer specifies the basis of the landlord’s claim for possession and damages and informs the tenant of the date to appear in court. A landlord may also choose to hire a private process server to serve a Summons for Unlawful Detainer on the tenant.

2. Jurisdiction and Venue

Pursuant to Virginia Code Section 16.1-77, General District Courts have jurisdiction of

actions of unlawful entry or detainer. The maximum jurisdictional limits of $25,000.00 shall not

apply to any claim, counterclaim or cross claim in an unlawful detainer action that includes a

claim for damages sustained or rent against any person obligated on the lease that prove to be

owing where the premises were used by the occupant primarily for business, commercial or

agricultural purposes.

Venue pursuant to Virginia Code Section 8.01-2601 shall be in the County or City wherein the subject land or part thereof is situated in an unlawful detainer action.

3. Discovery

There are no provisions in the General District Court for discovery. However, pursuant to Rule 7(b):2 of the Virginia Ru1es Annotated, the Court may require the parties to file additional pleadings. This is usually done at the request of one or both parties. A plaintiff or landlord in an unlawful detainer action can be required to file a Bill of Particulars. A Bill of

Particulars is just a more detailed statement regarding the basis of the landlord’s claims. It is similar to what you would expect a civil complaint filed in the Circuit Court to look like. The

tenant can be required to file an Answer and Grounds. The tenant must give the basis in the

Answer and Grounds as to why it disagrees with the landlord’s Complaint. If either party fails to

file these pleadings, it may be grounds for awarding summary judgment in favor of the adverse

party. If a matter is not sufficiently detailed in a pleading, the judge at trial can exclude evidence

on a subject matter not described in the pleading.

Sometimes subpoena duces tecum are used as a discovery vehicle, but it is not true

discovery as the documents are not required to be produced until trial. Additionally, the quick

turnaround time for trials in unlawful detainer actions sometimes limit the feasibility of a

subpoena duces tecum since the recipient may object if not given more than fourteen (14) days to

respond. The party filing the action may wish to include the subpoena duces tecum with the original filing of the action if it is anticipated the opposing party has any documents that will

need to be produced.

4. The Hearing

Pursuant to Virginia Code Section 8.01-126, an initial hearing on an Unlawful Detainer

action shall occur as soon as practicable, but not more than twenty one (21) days from the date of filing. Be sure to check the local practice of the jurisdiction in which you are filing as to what days the unlawful detainers may be heard (for example Fairfax only hears landlord/tenant cases on Fridays at 9:30 a.m.).

At the return date the Court will not hold a trial. If the tenant does not appear, however, the landlord is entitled to a judgment that day either by way of affidavit that was filed together with the Complaint or through ex parte proof at the return date.

The plaintiff in an unlawful detainer case may submit into evidence a photocopy of a properly executed paper document or paper printout of an electronically stored document including a copy of the original lease or other documents, provided that the plaintiff provides an

43 affidavit or sworn testimony that the copy of such document is a true and accurate copy of the original lease. Virginia Code § 8.01-126.

The landlord can also receive a judgment if the tenant appears and admits that the landlord is entitled to a judgment for possession and/or the monetary amounts claimed. If the tenant appears at the return date and contests the landlord’s entitlement to a judgment for either possession and/or damages, the matter will be set in for trial at a later date. Pleadings as set forth above, will be required upon request of one or both parties.

Either at the return date and/or the trial on a contested case, a judgment will be entered for the landlord for such damages as the landlord may prove to be sustained by it. The landlord is only entitled to the actual amount of rent incurred as of the judgment date. See Virginia Code

Section 55-248.35. The landlord, pursuant to Virginia Code Section 8.01-128 and sections in 55-

248.35 may pursue additional damages against the tenant that occur after the court date at a later time.

5. The Writ, Preparation, Entry and Service

In cases where the tenant defaults, the landlord does not have to wait until the expiration of the normal ten (10) day appeal period to seek a writ. That is, on the return date, if the tenant fails to appear, the landlord should ask for a judgment for immediate possession and thereafter will have the right to immediately file for a writ of execution on the judgment for possession.

See Virginia Code 8.01-129.

a. Writ of Possession in Unlawful Detainer

(Section 8.01-470 & 472) - The Writ of Possession in Unlawful Detainer is a court order authorizing the Sheriff to physically remove a person and his belongings from the premises and to return possession to the landlord. Usually the court will not issue the Writ of Possession until

the appeal period has lapsed. The appeal period is ten (10) days except when the landlord has

asked for immediate possession at the hearing, the ten (10) day appeal period is waived. (Section

8.01-129).

b. Time Period for Executing Writ

This writ gives the Sheriff thirty (30) days in which to execute. Effective July 1, 2000,

Virginia Code Section 8.01-470, has been modified to read, “The execution of the writ of possession by the sheriff should occur within fifteen (15) calendar days from the date received by the sheriff, or as soon as practicable thereafter, but in no event later than thirty (30) days from the date the writ of possession was issued.” While this change speeds up the eviction process, it allows for discretion as well.

At the time the landlord requests issuance of the Writ of Possession, he may also request

a Writ of Fieri Facias to cover any damages and costs. It is recommend that a levy be issued at

the time of eviction only if the tenant is present and the plaintiff plans to a lock out versus a

move out. At that time, the deputy inventories the property and informs the tenant that he must

notify the plaintiff and the Sheriff of the location of the levied property. Failure to notify the

Sheriff could result in prosecution under Section 18.2-101.

c. 72 Hour Notice

The 72-hour notice is not to be confused with the 10-day appeal period. Many landlords

confuse the waiver of the 10-day appeal period to mean the 72 Hour Notice has also been

waived, thereby, expecting the Sheriff to execute the Writ the moment he receives it. The codes

relating to the 10-day appeal period and the 72 Hour Notice are covered under two different code

sections. Therefore, unless the judge, in writing, waives the 72 Hour Notice to the tenant, the

Sheriff must follow the code.

The moment the Sheriff receives the Writ from the Court, the Writ is entered into the computer. The Sheriff has no control over how long it takes a Writ to come down from the court to his office. Processes are picked up twice daily from the court, early in the morning and again at 12:00 p.m. If the court issues a Writ after 12:00 p.m. the Sheriff will not get it until the following morning.

After entering the Writ of Possession into the computer, the assigned zone deputy will call the landlord to arrange the eviction date and time. Therefore, it is important the landlord write any and all phone numbers on the Writ so the Sheriff can contact him for scheduling. If the landlord’s phone number is not written on the Writ, the Sheriff will mail notification to him to request a call to our office for scheduling. Valuable time is lost and it is possible the Writ could expire before ever scheduling the eviction.

Once a mutually agreeable time has been set, the deputy will prepare the 72 HOUR

NOTICE TO VACATE which is issued by the Sheriff. The date and time of the eviction must be noted on the form. The notice is then posted by the deputy. Pursuant to Section 8.01-470, the notice must be served according to the laws relating to service of process. This is especially important if the landlord is trying to evict a business where the owner has left property inside but is no longer operating the business. If this should occur, the landlord may want to consult an attorney because service at the business cannot be effected and would have to be directed to the owner’s home. Other remedies may also be available to the landlord.

D. Tenant Defenses/Claims

1. Waiver:

Frequently, a tenant will contest a landlord’s right to possession arguing that the landlord or landlord’s agent waived their right to terminate the lease by accepting a full or partial payment

of rent after the termination date of the lease. If so, a factual question is raised for trial whether

the landlord has waived his right to evict the tenant.

The Virginia Code provides that unless a landlord accepts rent with reservation, and gives

written notice to the tenant of such acceptance, acceptance of periodic rent payments with

knowledge of a material noncompliance by the tenant constitutes a waiver of the landlord’s right

to terminate the rental agreement. Except as provided in § 55-243, if the landlord has given the

tenant written notice that the periodic rental payments have been accepted with reservation, the

landlord may accept full payment of all rental payments, damages and other fees and still be

entitled to receive an order of possession terminating the rental agreement.

Providing the tenant with written reservation of rights at the same time the tenant makes

payment is the best policy. Many judges will accept reservation of rights language in the 5-day

notice. Reservation of rights must be clear and unequivocal and a copy must be provided to the

court. One possible mistake some landlords make is to retain a rent payment tendered by a

tenant and assume by not cashing the payment that a written reservation of rights need not be

given. Retaining a tendered rent payment arguably is receipt of the rent. However, much of the

confusion and inconsistent policies relating to acceptance of rent with reservation of rights by

landlords appears to have been settled by the 2003 enactment of Va. Code § 55-248.34: 1 which

expressly permits landlords to include notice to the tenant that rent will be accepted with

reservation in either the termination notice to the tenant or in a separate written notice given by the landlord to the tenant within 5 business days of receipt of the rent.

Section 55-248.34:1 provides as follows:

A. Provided the landlord has given written notice to the tenant that rent will be accepted with reservation, the landlord may accept full payment of all rent and receive an order of possession from a court of competent jurisdiction pursuant to an unlawful

detainer action filed under Chapter 13 ( § 8. 01-374 et seq.) of Title 8.01. Such notice may be included in a termination notice given by the landlord to the tenant in accordance with § 55-248.31 or in a separate written notice given by the landlord to the tenant within 5 business days of receipt of the rent. B. Subsequent to the entry of an order 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’s 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. Such notice shall be given in a separate written notice by the landlord within 5 business days of receipt of rent.

2. The tenant’s right to terminate the tenancy due to noncompliance with the rental agreement or with law by the landlord:

Virginia Code § 55-248.21 provides for the tenant to serve on the landlord a 21-30 day notice claiming material noncompliance with the rental agreement or a noncompliance with the

Act materially affecting health or safety. Alternatively, if the landlord’s commits a breach which is not remediable, the tenant can instead serve a 30 day notice of termination of the tenancy. The written notices from the tenant must specify the acts and omissions constituting the breach. The tenant is authorized by this section to recover damages and obtain injunctive relief for noncompliance by the landlord, as well as reasonable attorneys’ fees - unless the landlord proves by a preponderance of the evidence that the landlord’s actions were reasonable under the circumstances.

unit, or procure reasonable substitute housing during the period of the landlord’s non-

compliance. The section also authorizes recovery of reasonable attorneys’ fees.

3. Tenants’ Assertions; affirmative and defensive use of rent escrows in housing actions:

Tenants under the VRLTA cannot withhold payment of their rent in order to try to force a

landlord to make repairs and obtain offsetting rent reductions for the existence of defective

housing conditions. The proper method to address failure to maintain a residential dwelling (if

the landlord does not reasonably and timely make repairs) is to file a tenant’s assertion and

complaint. The Virginia Judicial System has a form for filing this affirmative action: DC-429.

a. Affirmative assertion of habitability problems:

Affirmative assertion of existence of defective housing conditions is addressed in

Virginia Code § 55-248.27. Part A of this section of the Act identifies which violations may be addressed by the tenant’s assertion.

In order to obtain relief, the tenant needs to show the court:

 Prior to filing the action the landlord was served a written notice describing the conditions that violate habitability requirements; the notice may be provided by either the tenant or the local code enforcement agency;  The landlord had a reasonable opportunity after such notice to remedy the conditions; what amount of time is reasonable is left up to the court, but the Act establishes a rebuttable presumption in § 248.27-B(1) that 30 days from receipt of the notice is reasonable;  The tenant has paid into court the rent due under the rental agreement, within 5 days of the due date; and,  The tenant has not caused the defective conditions and has not unreasonably refused entry to allow the landlord to make repairs.

49 of rent, whether paid into the escrow account or paid to the landlord, be abated as determined by the court in such an amount as may be equitable to represent the existence of the condition or conditions found by the court to exist.”

Virginia Code § 55-248.27-C(4) contains a powerful provision favoring relief for tenants:

In all cases where the court deems that the tenant is entitled to relief under this chapter, the burden shall be upon the landlord to show cause why there should not be an abatement of rent.

If the defective conditions continue for six months without reasonable attempts by the landlord to remedy the conditions, the court is directed by § 248.27-C(8) to award all money in the escrow account to the tenant.

If the tenant has not sought inspection and correction of defective housing conditions through the local governmental code enforcement agency before giving notice and filing the court action, the court has authority to refer the matter to such agency for investigation.

b. Defensive assertion of habitability problems:

Virginia Code § 55-248.25 provides an opportunity for a tenant to defend an unlawful detainer action on the basis of a landlord’s failure to maintain the habitability of the dwelling.

Part A of the statute provides:

In an action for possession based upon nonpayment of rent or in an action for rent by the landlord when the tenant is in possession, the tenant may assert as a defense that there exists upon the leased premises, a condition which constitutes or will constitute, a fire hazard or a serious threat to the life, health or safety of occupants thereof, including but not limited to a lack of heat or running water or of light or of electricity or adequate sewage disposal facilities or an infestation of rodents, or a condition which constitutes material noncompliance on the part of the landlord with the rental agreement or provisions of law.

The statutory prerequisites for this defense are the same as for the affirmative tenant’s

assertion: prior written notice to the landlord; a reasonable opportunity to repair the defective

conditions; no responsibility for the tenant in either causing the conditions or in failing to

cooperate with efforts to repair them; and, payment into court of the amount of rent found by the court to be due and unpaid to the landlord.

The General District Court may order a set-off to the tenant of the rent, “in such amount as may be equitable to represent the existence of any condition.” § 248.25C(1).

4. Mitigation:

The basic common law doctrine of mitigation of damages is applicable to residential leases. There is a specific statutory provision requiring mitigation for tenancies under the

VRLTA; § 55-248-35 provides, in part:

Actual damages for breach of the rental agreement may include a claim for such rent as would have accrued until the expiration of the term thereof or until a tenancy pursuant to a new rental agreement commences, whichever first occurs; provided that nothing herein contained shall diminish the duty of the landlord to mitigate actual damages for breach of the rental agreement.

The VRLTA specifically provides in this section:

In obtaining post-possession judgments for actual damages as defined herein, the landlord shall not seek a judgment for accelerated rent through the end of the term of the tenancy.

If a tenant breaches a lease and is evicted or moves out prior to the end of a lease term, without adequate justification, the landlord can claim damages for the breach but cannot automatically hold the tenant responsible for the full rent due until the end of the written lease term. The landlord must make reasonable efforts to timely re-rent the housing unit before seeking to establish damages for unpaid rent under the lease.

There are two procedures by which a landlord can claim additional damages against a

tenant who breached a written lease and was terminated and/or evicted. The landlord can, after

judgment for money damages and possession is entered in an unlawful detainer action, reserve

the opportunity to file a later motion seeking additional actual damages resulting from the

tenant’s breach and need to re-rent the premises. Alternatively, the landlord could bring a

warrant in debt action and assert any other damage claims that may exist against the former

tenant, for damage to the property or other bases.

E. ADDITIONAL LANDLORD REMEDIES

1. Tenant abuse of access

Section 55-248.10: 1 provides that if a tenant refuses to allow lawful access, then the landlord may obtain injunctive relief to compel access or terminate the rental agreement. In either case, the landlord may recover actual damages and reasonable attorney’s fees.

2. Excluding persons from the landlord’s property

Virginia Code § 55-248.31:01 addresses barring individuals from entering the landlord’s

property to visit a tenant. The standard for such exclusion is when there has been conduct on the

landlord’s property which violates the terms and conditions of the rental agreement, a local

ordinance or state or federal law. A copy of the notice (describing the objectionable conduct of

the visitor) must be served on the tenant.

3. Remedy by repair

If the tenant is in violation of the lease or the tenant’s statutory requirements to maintain

the dwelling unit that materially affects health and safety that can be remedied by cleaning or

repair or replacement of the damaged item and the tenant fails to comply within 14 days after

written notice by the landlord, the landlord may enter the premises and do the repairs and submit

an itemized bill for the actual costs (which must be fair and reasonable) to the tenant to be paid

as rent.

F. EVICTION RELIEF FOR DISABLED TENANTS

Disabled and/or handicapped tenants have rights to protect them from both intentional

and unintentional discrimination by landlords. The primary means of invoking the protections of

federal law is to seek reasonable accommodation(s) that are needed by a disabled tenant because

of the existence of the disabling condition and which are reasonably required to ameliorate the

effect of the condition on occupancy of housing. Virginia law may be even more protective of

disabled tenants than federal law. The Virginia Fair Housing Office’s web site1 contains the

following guidance for landlords seeking to evict disabled tenants:

If you’re a housing provider and one of your tenants violates his/her lease and if you know or suspect that they have a disability, you may not automatically evict the tenant. As a housing provider, before you evict any tenant with a disability you must first ask him/her if there is an accommodation that you can make that would alleviate or modify the behavior that caused the lease violation.

This proactive duty to inquire into the possibility that a tenant may be disabled is a significant protection from eviction for disabled tenants.

How does a landlord know or reasonably suspect that a tenant is or may be disabled? If the tenant is known to receive disability benefits, that clearly is a reason to know or to suspect possible coverage. Another way for disabled tenants to obtain this protection without having to go into details invading privacy would be to use the new third-party notice procedure of Virginia law, § 55-248.9:1-B, to designate for any notices relating to the tenancy a governmental agency

1 See http://www.dpor.virginia.gov/dporweb/fho accomodations.cfm, 53

that assists disabled persons, a representative payee designated by the Social Security

Administration or a Guardian or Conservator appointed through court, etc.

What is a reasonable accommodation that would be applicable to an eviction action? A

tenant needs to be disabled (generally having a condition that substantially limits one or more

major life activities-like the drivers with handicapped parking stickers, you cannot necessarily

easily tell who is or may be disabled under state or federal law), and seeks “a change in rules,

policies, practices, or services when such accommodation may be necessary to afford a person

with a disability equal opportunity to use and enjoy a dwelling.” So, what is this? A request from

an eligible disabled person must be reasonable, but also the request - even if otherwise

reasonable - must relate to the person’s disability and how the disability affects his or her

housing.

This could cover late payment of rent. If a disabled tenant has a representative payee for

receipt and disbursement of Social Security disability benefits, and the combination of the time it

takes for the federal agency to send the monthly benefits and the time reasonably require for the

representative payee to process the benefits and issue the rent payment means a delay in making

payment of rent later than the first of the month - it may be appropriate under federal law to

require the landlord not to enforce a lease provision for late fees that does not adequately allow

time for the rent payment to be processed and actually paid. A landlord commits unlawful

discrimination if a reasonable accommodation is refused.

There is no time limit for a disabled tenant to make a reasonable accommodation request or to challenge the failure of the landlord to initiate an inquiry whether an accommodation was needed. This can be done even during pendency of an eviction action in court. A thorough, detailed discussion of federal law and how that impacted eviction of a federally subsidized tenant

54 is set out in: Douglas v, Kriegsfeld Corporation, 884 A. 2d 1109 (2005). The D.C. Court of

Appeals overturned a decision of the Superior Court that held a Section 8 tenant being evicted could not present in the eviction action a reasonable accommodation defense under the federal

Fair Housing Act. The appellate court ruled the lower court erred when there was evidence that the landlord defaulted in its legal obligation to engage the tenant in a discussion of her request for a reasonable accommodation, and the landlord refused to grant the accommodation which, if implemented, would have cured the tenant’s default. There is a very thorough discussion of application of federal law to various aspects of eviction actions, but one key point is that under federal law an actionable discriminatory denial of a reasonable accommodation (and therefore a violation of the Fair Housing Act) can occur at any time before a tenant is actually evicted.

There is no cut-off date or deadline under federal law for a disabled tenant to seek a reasonable accommodation. For example, expiration of the 21- 30 day time period under Virginia law for a tenant to cure a material breach of the lease could be extended (after the fact) in order to accommodate a disabled tenant who could not complete compliance with the notice in the 21 days due to the disability.

G. Fair Credit Reporting Act

Unlike the Fair Debt Collection Act, owners and managers may be liable for submitting false information to a credit reporting agency. If the landlord’s violation is willful, the plaintiff will be able to recover at least statutory damages and attorney’s fees. The plaintiff can recover actual damages if they are higher than the statutory damages. If the landlord’s actions are merely negligent, then the plaintiff must show that he suffered actual damages. The plaintiff can still recover its attorney’s fees.

IV – MILITARY TENANTS

The Servicemembers' Civil Relief Act

The Servicemembers' Civil Relief Act, or SCRA (50 U.S.C. App. Â§ 501 and following), applies to all active duty members of the armed forces, including the activated National Guard, the commissioned corps of the National Oceanic and Atmospheric Administration (NOAA), and the commissioned corps of the Public Health Service.

The SCRA aims to allow military members to serve without suffering financial or legal repercussions at home. In particular, Congress recognized that military pay for many activated reservists would likely be lower than their normal income, making it hard to pay debts.

Special Treatment for Tenants Many active duty members may also be able to terminate lease obligations and avoid eviction.

Cancellation of Residential or Commercial Leases Tenants who enter active military service after signing a lease or rental agreement have a right to get out of their rental obligations. This is true for both residential and commercial (business) leases. The Tenant must mail written notice of their intent to terminate their tenancy, along with a copy of their orders, to the landlord or manager.

 Month-to-month rental agreements. Once the notice is mailed or delivered to the landlord or manager, the tenancy will terminate 30 days after the day that rent is next due. For example, if rent is due on the first of June and you mail a notice on May 28, the tenancy will terminate on July 1. This rule takes precedence over any longer notice periods that might be specified in the rental agreement or by state law. If state law or the agreement provides for shorter notice periods, the shorter notice periods will control.

 Leases. Once the notice is mailed or delivered, the tenancy will terminate 30 days after the day that rent is next due. For example, suppose a tenant signs a one-year lease in April, and rent is due on the first of the month. The tenant enlists or is called up on October 10. If the tenant mails a termination notice on October 10, the lease terminates on December 1, which is 30 days after the first time that rent is due following the mailing of the notice (November 1). This tenant will have no continuing obligation for rent past December 1.

Delaying Eviction for Nonpayment of Rent The SCRA requires courts to postpone (stay), for up to three months, some residential evictions for nonpayment of rent.

Which tenants are affected? The SCRA applies to spouses, children, or other dependents that occupy the rental unit during a period of military service. (A dependent is someone the Tenant has supported in the past 180 days, by paying more than half of that person's living expenses.)

Rental amount. The Act's protections apply when the rent is $2,400 per month or less. That figure -- chosen by Congress in 2003 -- is adjusted to account for inflation or cost of living increases.

The effect on an eviction lawsuit. The Act does not prevent a landlord from serving a termination notice for the nonpayment of rent. But a landlord who has filed suit must tell the court that the tenant is an active service person. The judge will decide whether the service person's status in the military materially affects his or her ability to pay the rent. If the judge determines that it does, the judge may stay the eviction for up to three months. If the judge decides otherwise, the lawsuit will continue and may result in an eviction.