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VRLTA and common law Differences

Feb 15, 2017

Real Estate Laws

Adapted from: Friedlander, Virginia Practice - Landlord-Tenant Handbook pp4-13 (2014-2015 Edition)

ITEM

COMMON LAW

VRLTA

Warranty of habitability & duty of repair

There is now imposed on residential landlords a statutory warranty of habitability, compliance with building codes, as well as other duties which are the same of those imposed in VRLTA with the exception that the landlord and tenant may waive non-building code requirements in writing.

§ 55-225.3 

Landlord warrants the property to be fit and habitable as well as other obligations to comply with the building codes, provide running water and hot water, etc. The landlord can only shift some of these duties to tenant. § 55-248.13

Deposit

There are no statutory requirements in reference to security deposits. No interest is required and there are no specific requirements as to inspection of the property.

Both refundable and non-refundable are now OK. Interest is no longer required to be paid by the landlord on security deposits.  Pre-paid rent is now allowed if landlord puts it into an escrow account.

45 days are allowed for return of deposit with 15-day possible extension. The court is to return the deposit, over and above unpaid rent, if the landlord fails to comply with the time requirements under this section.

§ 55-248.15:1

Rent Escrow

A rent escrow and tenant assertion in residential rentals has been added similar to VRLTA. § 55-225.12

Rent escrow permitted under specified conditions.

§§ 55-248.27 et seq.

Retaliatory Eviction

Eff 7/1/2015 Non-VRLTA law gives the tenant in a dwelling the defense and claim of retaliatory eviction as defined in § 55-225.18

Tenant may defend an eviction or prosecute an affirmative action for the landlord’s retaliatory conduct as defined in the Act. § 55-248.39

Self-Help

Self-help in all residential situations is now prohibited. Self-help IS still available in nonresidential situations.

§§ 55-225.1 & 55-225.2

No self-help is permitted for either the landlord or the tenant.  Certain temporary lodging now permits self- help where the temporary lodging is in a boarding house, hotel, etc., and not the boarder’s primary residence or if it is, then not for more than 90 days. § 55-248.36

Attorney's Fees

No attorney's fees can be awarded unless they are provided for in a written lease or by a statute. 

Reasonable attorney's fees are awarded to either the landlord or tenant unless the action complained of is shown to have been reasonable under the circumstances. §§ 55-248.21 and 55-248.31

Access

A landlord has no right of access to the property except where provided in a written lease.  The same safeguards of a tenant or authorized occupant are provided where there is a court entered protective order.  §22-225.5

Reasonable access to leased property is permitted the landlord with safeguards against abuse of access for the protection of the tenant or authorized occupant. § 55-248.18 & § 55-248.18.1

Waste

A landlord can recover double damages for willful waste. §§ 55-212 to 55-214

A landlord may recover actual damages plus his attorney's fees. § 55-248.16

Constructive Eviction

A residential tenant may offset rent, claim reduction, use rent escrow (with conditions), plus recover actual damages, and attorney’s fees.  He does not have to leave the property to escrow his rent with the court. § 55-225.12

A tenant may offset rent, claim reduction, use rent escrow (with conditions), plus recover actual damages, and attorney's fees. He does not have to leave the property to escrow his rent with the court. § 55-248.27

Notice to Cure Breach

A 5-day notice to pay may be mandated by § 55-225 unless waived or enlarged in a written lease.  For a material breach by landlord affecting health or safety in a residence, to terminate the lease, a tenant must give landlord a 30-day notice to quit, with 21 of those days being for the landlord to cure the breach. § 55-225.12.  For non-monetary breach by tenant, no statutory notice is mandated.  The common law requirement is that the notice be reasonable unless the lease provides otherwise.

A 5-day notice to pay for nonpayment of rent is required. A reasonable notice to repair (without terminating lease) is necessary. A 21-day notice to cure or terminate in 30 days is required to terminate for a breach other than a recurrent one or certain criminal/willful conduct. §§ 55-248.21, 55-248.31

Waiver

Accepting rent knowing of a default, especially rent into the future, is a waiver under the common law. The reservation letter may establish no intent to waive and thus be effective. There is no statutory provision on waiver in the common law. It is recommended that the VRLTA provision on waiver be incorporated, in some form, into a common law lease

Accepting rent from a defaulting tenant is not a waiver if the landlord gives a written notice to the tenant, within 5 business days of receipt of the rent that the acceptance of rent is made with reservation of the landlord's rights. Landlord may include the reservation of rights in the written notice to cure. § 55-248.34:1 

Redemption

A tenant still may redeem possession under § 55-243 if he tenders all rent due, costs and attorney fees to landlord on before first return. This right is available to tenant only once every 12 months. It occurs automatically upon payment of the required amount.  A redemption tender from a local government or nonprofit results in a 10-day continuance to generate the payment. § 55-243 

A tenant still may redeem possession under § 55-243 if he tenders all rent due, costs and attorney fees to landlord on before first return. This right is available to tenant only once every 12 months and is automatic upon payment.  A redemption tender from a local government or nonprofit results in a 10-day continuance to generate the payment.  § 55-248.34:1 

Prohibited Terms

OK to waive remedies; OK to exculpate landlord; OK to exact specific attorney's fees; OK to indemnify landlord; OK to confess judgment against tenant. 

A lease may not: waive any remedies; exculpate landlord; indemnify landlord; confess judgment; call for other than "reasonable" attorney's fees. § 55-248.9

Assignment

The assignment of a lease by a landlord will not release him from liability on the lease unless the lease provides for the release of the landlord’s liability on assignment. 

A landlord's assignment of lease will relieve him of liability to the tenant. § 55-248.14

Abandonment

Physical possession is not necessary so long as rent is paid. If abandoned without rent being paid, the landlord must post a 10-day notice to cure for a monthly tenant or 30-days for a yearly tenant; landlord's retaking is a surrender. No rent accrues after surrender unless a contrary provision is written into the lease OR Landlord retakes to re-let premises.  This can be modified in the lease.  § 55-224 

A lease may provide for deemed abandonment if the unit is left vacant without notice for more than 7 days if appropriate language is written in the lease. A landlord may accrue rents after abandonment up to the re-let of the unit. If abandonment status is unclear, then the code permits a 7-day notice to determine abandoned status. §§ 55-248.33, 55-248.38:1 

Mandatory
Disclosures

There is a mandatory duty to disclose visible evidence of mold § 55-225.7, Chinese drywall § 55-225.11 and foreclosure dangers due to mortgage default or threats of foreclosure, § 55-225.10, and prior use as a “meth” lab, § 55-225.17

Landlord must disclose the presence of visible evidence of mold to the tenant on the move-in inspection, giving the tenant the opportunity to terminate or accept. § 55-248.11:2. Landlord must disclose the agency, new owners, and certain conversion information. § 55-248.12.  Disclose presence within a "noise zone or accident potential zone" where located near a military air installation. § 55-248.12:1, and prior use of property as a “meth” lab § 55-248.12:3 

Delivery of Possession 10

Delivery of possession is not mandatory at common law if lease gives tenant a right to possession.

 

If a landlord willfully fails to deliver possession, then tenant's rent abates and tenant may terminate lease on a 5-day notice or regain possession through court action.  §55-248.22

Military

Mere change of duty station of a military tenant will not entitle the tenant to terminate lease unless governed by the Servicemembers Civil Relief Act. Provided however, if the rental IS exempt from VRLTA because of the number of single family homes or condominiums that the landlord owns, then § 55-248.21:1 applies and permits the military tenant to terminate a lease on 30 days' notice upon a permanent change of duty station of more than 35 miles or a TDY of more than 35 miles and 3 months. § 55-248.21.1

A military tenant may terminate the lease on 30 days' notice upon a permanent change of duty station of more than 35 miles or a TDY of more than 35 miles and 3 months. § 55-248.21:1

Rules &
Regulations

Nothing is specified in the common law about rules and regulations. Traditional contract law bars unilateral modification of a written lease unless the terms of the lease otherwise provide. 

Rules and regulations are automatically deemed a part of the lease, including certain later unilateral modifications. § 55-248.17 (See also definition of "rental agreement."). 

Effect of Unsigned Lease

Traditional contract formation rules apply where one of the parties fails to sign or deliver the signed lease. Any such tenancy would be month-to-month, if the rent IS paid monthly, unless the court finds acceptance of the lease has 

If a landlord fails to sign but accepts rent from tenant who does sign, the lease has same "effect" as if signed for up to one year. Same "effect" is given if a landlord signs but tenant does not and tenant takes possession and pays rent. § 55-

Pre-trial rent
protective order

A pre-trial rent escrow protective order applies when requested by the landlord in the situation where the tenant is sued for nonpayment of rent and the tenant seeks a continuance or a trial date.  This code section is limited to residential situations and requires the escrow of past, present and future rent, unless the court finds that the tenant is asserting a good faith defense.  The landlord may obtain early judgment for rent and possession if the tenant fails to pay the court ordered rent escrow.  § 55-225.14

A pre-trial rent escrow protective order applies when requested by the landlord in the situation where the tenant is sued for non payment of rent and the tenant seeks a continuance or a trial date. This code section is limited to VRLTA situations and requires the escrow of past, present and future rent unless the court finds that the tenant is asserting a good faith defense. The landlord may obtain early judgment for rent and possession if the tenant fails to pay the court ordered rent escrow. § 55-248.25:1

Landlord may bar
a tenant's guest or
invitee from
landlord's property

A landlord may bar a tenant’s guest or invitee from the premises on written notice if the person’s conduct violates the rental agreement or the law.  The tenant may challenge the landlord’s action by filing for court action to vacate the bar notice.  §55-225.5

Under VRLTA, a landlord may bar a tenant's guest or invitee from the premises on written notice if the person's conduct violates the rental agreement or the law. The tenant may challenge the landlord's action by filing for court action to vacate the bar notice. § 55-248.31:01 

Confidential Information Landlord

No corresponding code section exists for common law situations

Under VRLTA, disclosures by land-lord without writ-ten consent of tenant are listed. § 55-248.9:1

Accelerated rent

Accelerated rent at common law is permitted as liquidated damages pro-vided it is not deemed a penalty.

Under VRLTA, actual damage only. No accelerated rent is permitted. § 55-248.35

Injunctive relief

Injunctive relief governed by common law.

Under VRLTA, any person aggrieved may seek injunction relief as well as damages in circuit court. § 55-248.40


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  • Real Estate Laws