No Post Today

Hi all.  I had been planning to go ahead and do a post today, but recovering from the holidays seems it's going to need to take priority, so I'll see you all again next week!

"If You Cannot Afford an Attorney..." - Court Appointed vs. Pro Bono Attorneys

As always, before reading this post please review my disclaimer by clicking on the link above or by clicking on this link.  As always, all legal principles discussed in this post apply only to the Commonwealth of Virginia.

Note:  This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.

Introduction

It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot.  Within the legal profession, the distinctions are fairly clear.  It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.

The fact is there are two completely different kinds of "free" attorneys.  The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate).  The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client.  A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney.  A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney.  Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.

Right to Be Provided an Attorney vs. Right to Have an Attorney

So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney?  Well, let me explain what I mean first.  The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office).  The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.

So, first of all note that the former is a subset of the latter.  In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono.  The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.

While there are exceptions, you virtually always have the right to have an attorney.  In any legal predicament you are in, you can consult an attorney if you wish.  You also always have the right to have an attorney if you are in front of a court.  If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.

Of course, the big question this leaves is, when do you have a right to be provided an attorney?  Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney.  Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.

The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail.  In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence.  You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example).  That's really it - unless you are in those situations, you do not get a court-appointed attorney.

Guardians ad Litem

There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem.  I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case.  They are worth mentioning briefly, however.  A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself.  It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants.  While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case.  Note, however, that the last category is very hard to get a guardian ad litem appointed for.  I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!

How to Get a Pro Bono Attorney

So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys.  The answer, unfortunately, is not simple - and can often take a good bit of searching.  Most areas have a local legal aid organization.  If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look.  Beyond that, it can be a crap shoot.  If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them.  I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.

Conclusion

There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you.  If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you.  If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.

Sitting at Home Collecting Checks - Vocational Experts and Support Payments

As always, before reading this post please review my disclaimer by following the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

After nearly a month of doing landlord/tenant blog posts, I decided today I would break off and get back to other areas of law.  For today's topic I've chosen an issue that comes up with a great deal of frequency in the family law field.  What happens if someone asking for support, or paying support, knows that their income will affect what they pay or what they get, and so they decide to either quit their job, take a lower paying job than they should, or not pursue increased income opportunities that they reasonably should pursue?  The fact is, if you believe the other party in your case is doing this, you do have a way to either force them to take higher paying work, or get the court to treat them as though they are paid more.

The Law of Underemployment and Support

In a case involving child support, spousal support, or both, if either party is unemployed, or accused of being underemployed, it is that party's burden to prove that they are not.  That is - it is that party's burden to prove that their unemployment or underemployment is through no fault of their own.  There are many reasons that someone could be unemployed or underemployed through no fault of their own - they were laid off and have not had enough time to find a new job, they were a stay-at-home parent for 15 years by agreement of the parties and now have been out of the job market too long to get a new job, they are disabled, etc.  Nonetheless, it is frequently very challenging to prove to a court that your unemployment or underemployment is involuntary.  If you were fired for cause, if there are jobs that you can still do despite your disability, if you have not been applying for jobs frequently enough, etc., the court may very well find you voluntarily unemployed or underemployed.

So, what happens if the court does find that someone is voluntarily unemployed or underemployed?  In that case, the court has the right to "impute" income to the person.  What this means is that the court for calculating support will treat that person as though he or she earns more money than they actually do.  That, however, is where the simplicity ends.  This is because while it is the burden of the person who is under or unemployed to prove that this is involuntary, once the court finds it voluntary, it is the burden of the other party to prove what the voluntarily under or unemployed person should be earning.  If your ex is found to be voluntarily unemployed, but you cannot convince a judge of what he should be making instead, the judge will still treat him as though he earns nothing.

Simple Proofs of Earning Capacity

Sometimes there are easy ways to prove what a voluntarily under or unemployed person should be making.  For example if someone was fired for cause or quit without good reason just a couple months earlier, a judge will likely accept the person's prior income.  Similarly, if the person turned down higher paying jobs without a good reason for doing so, the court will likely accept that income.  But what happens when you don't have that situation?  What happens when someone was fired for cause five years ago, and has simply refused to look for new work ever since?  A judge certainly is not going to impute five year old income, so where do you go from there?

Vocational Experts

What may surprise people to know is that there is an entire class of expert witnesses out there who can speak to this exact issue.  These people are known as vocational experts, or vocational rehabilitation specialists.  These individuals have spent their adult lives studying job markets, job skills, etc. and are able to calculate earning capacity, along with the availability of jobs at that earning capacity.  A vocational expert will interview the allegedly involuntarily under or unemployed person, investigate their work history, and put together a report indicating whether the person is employable, and if so, what they should be making and how many jobs are available at that income level.

There are a very small number of these experts in any given area, so it is likely that your judge will know your expert.  Evidence presented by vocational experts is frequently accepted by judges and used to impute income.  Best of all, in the grand scheme of legal expenses, vocational experts are not all that expensive, running around $3,000 to $5,000 if they have to testify in court (considering the amount you could save on support or increase you could get in receiving support, the expert really pays for herself).

What If My Ex Doesn't Cooperate?

So, you will note that the vocational expert's work includes an interview with the person.  So, what if your ex simply refuses to be interviewed?  Fortunately, the General Assembly has recognized how important a part of the support process a vocational expert is, and in 2010 it adopted Virginia Code Section 20-108.1(H) which allows you to file to get a court order requiring your ex to cooperate with the vocational expert's evaluation.  Moreover, this provision allows you to seek the costs and fees associated with this process - a useful tool to hold on to in order to encourage cooperation.  As a result, your ex refusing to submit to the interview could result in a finding of contempt of court, which will only help your case.

Conclusion

If you are involved in a spousal or child support situation and your ex is voluntarily under or unemployed, the burden is on you to prove what he or she should be making.  Fortunately, vocational experts exist to help guide you through this process and come out with a number a court is highly likely to accept.  If you are in a support situation involving voluntary under or unemployment, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

Avoiding Tenant "Self-Help" Part 3 - Ordinary Lawsuit

As always, before reading today's post, please review my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

As you know, I have been conducting a multi-part series on options tenants have when their landlord is in violation of their lease that can allow the tenants to avoid the pitfalls of self-help.  In part 1 I discussed use of a "Tenant's Assertion" and in part 2 I talked about what I call "notice termination."  Today's post, which I anticipate will be the last in the series, discusses what may at once seem the most obvious approach, but also one that most people don't desire for a number of reasons.  That approach is, of course, an ordinary lawsuit.

VRLTA vs. Common Law/Chapter 13 Lease

Regular readers of my blog should be well-trained by now to know that the first question you always need to ask in a landlord/tenant matter is if it matters whether you are dealing with a lease covered by the Virginia Residential Landlord and Tenant Act, or one that is not.  In the past two parts, I have mentioned that really the only difference is that in a non-VRLTA lease it is possible (though not guaranteed) that a lease could waive the tenant's rights to use that process, while VRLTA leases could not.  Today, the difference is, well, different.  First, I do not believe a non-VRLTA lease can waive a tenant's right to file a lawsuit for damages unless that lease preserves at least one other method for a tenant to assert his or her rights.  This is because courts frown upon contracts that prevent one party from suing for a breach but allow the other party to do so.  While nothing is a guarantee, I would expect a clause waiving a tenant's right to sue for breach of contract - the remedy I am discussing today - would be found invalid in court.  That being said, much of the caselaw on this point is now outdated because prior to 2011 a lawsuit like this was the only remedy available to non-VRLTA tenants.  Now that the Tenant's Assertion and notice termination rights exist for non-VRLTA tenants, a clause waiving the tenant's right to sue but preserving the tenant's right to engage in those two actions will probably survive.

On the other hand, there is one important other distinction between the VRLTA and non-VRLTA leases for tenant lawsuits.  The VRLTA contains Virginia Code Section 55-248.40 which allows any person adversely affected by the landlord's breach of the VRLTA (note this is only for breaches of the VRLTA, not breaches of the lease that are not also VRLTA breaches) to file suit and recover damages.  A lawsuit in a non-VRLTA lease can only be filed by one or more tenants if the person filing suit is a party to the lease.  Under the code section I just mentioned, however, for a VRLTA lease, authorized occupants, guests, and anyone else who may be affected but did not sign the lease has a remedy available to them as well.

What Can I Actually Sue For?

So, saying you can file an ordinary lawsuit sounds simple enough, but the follow up question should be what kind of lawsuit can you file?  Well, as you might guess, the lawsuit you can file is one for breach of contract.  Note, however, that this is pretty much the only type of lawsuit you can file.  If, for example, a landlord's failure to maintain the pipes in your rental causes a hot water pipe to burst which scalds you, you cannot sue for personal injury.  There is a long-standing common law rule that states that a lease does not create tort liability (liability other than just plain breach of contract) by a landlord, and the courts have recently held that this rule still applies even to VRLTA leases.  As a result, your only lawsuit available is breach of contract.

Now, for your breach of contract lawsuit, you can receive as compensation any damages that someone would ordinarily expect their breach of contract to cause.  This includes property damage (unless your non-VRLTA lease waived this right), costs incurred by you due to the breach (for example, if you had to stay in a hotel, if you paid to do the repair yourself because your landlord wouldn't, etc.), and loss of use damages.  The last one usually makes up the bulk of such lawsuits.  If, for example, your rental becomes uninhabitable, you should be entitled to a refund of your rent during that time frame.  If only part of the house becomes uninhabitable, then you should get a partial refund.

Now, the final question is attorneys' fees.  I have successfully argued in the past that the attorneys' fee provision of Virginia Code Section 55-225.13 and Virginia Code Section 55-248.21 (the notice termination statutes) apply to regular lawsuits for damages, too, but there's no guarantee that this will always work.  As a result, whether you are entitled to fees is a bit of a toss-up.

As a final note, for VRLTA leases, the aforementioned Code Section 55-248.40 gives you the right to also sue for an injunction requiring the landlord to cease his or her breach of the VRLTA.

What Situations Warrant a Lawsuit?

To me, an after the fact lawsuit is usually the least desirable of the big three tenant options.  This is because you do not have a guaranteed pool of money from which to collect a judgment (such as the escrow account you have in a Tenant's Assertion) and you don't get to potentially avoid court altogether (as you do with a notice termination).  However, a lawsuit is warranted, in my opinion, in the following circumstances:

• The breach of the lease is not "material," does not create a "condition" on the property (so, for example, the landlord's failure to return a security deposit, or to reimburse you for a repair you already did, or to abate your rent for the portion of property use you have lost due to a fire or flood), and/or the "condition" caused by the landlord's breach has already been repaired.  In this situation, neither a tenant's assertion nor a notice termination is possible.
• You conducted a notice termination, but you do want to also be reimbursed your damages.
• A tenant's assertion is possible, but you fear retaliatory conduct if you engage in one and want to wait until your lease ends to recover your damages.
• For a VRLTA lease, the potential plaintiff is not a party to the lease, and the conduct is also a violation of the VRLTA itself.

That's about it.  This does, however, actually encompass a decent number of situations.

When to File Lawsuit

With the exception of a VRLTA lawsuit under Section 55-248.40 seeking an injunction, a lawsuit needs to be filed after the fact.  Failure to wait until after the fact could open you to a whole range of defenses from the landlord, and end up being a big waste of time and money for you.  Worse, it may limit the amount you can recover (you can only sue for damages you've suffered as of the date of filing - if those damages continue to accrue, you may be out of luck).

Conclusion

An after the fact lawsuit is the last of what I consider to be the big three remedies tenants have for breach of a lease by a landlord that allow the tenants to avoid self-help.  If you are trying to figure out what remedy is best for you, or you want to file a lawsuit against your current or former landlord, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour!

Another one week hiatus from posting

Due to the combination of Thanksgiving and Channukah this year, my life is a little too hectic to do a blog post this week.  Look for me to be back with a new post next week, however!

Avoiding Tenant "Self-Help" Part 2 - Notice Termination

As always before reading my post, please review my disclaimer by clicking on the link above, or by following this link.  As always, any principles discussed apply only to the Commonwealth of Virginia.

Introduction

Last week, I began a multi-part series on alternatives for tenants whose landlords are in violation of their lease and the law, so that tenants can avoid the mistake of engaging in self-help.  Last week's post covered one option available to tenants - filing a Tenant's Assertion.  Today, I'm going to discuss another option, something I call notice termination.  Notice termination is something a tenant can do that, unless the tenant chooses differently, can be done entirely outside of court, and whose primary purpose is to simply terminate the lease, allowing the tenant to leave the property without having to pay any more rent.  It carries some risk, however, so read on to learn more.

VRLTA vs. Common Law/Chapter 13 Lease

As is always the case when dealing with a landlord/tenant issue in Virginia, the first question to ask is how the process differs between leases that are governed by the Virginia Residential Landlord and Tenant Act and those that aren't.  Like tenant's assertions, the right for a non-VRLTA tenant to take this course of action only dates back to 2011.  However, since 2011, the rights are now substantially similar except that a VRLTA tenant has a statutory right to receive back most of his security deposit in the case of a notice termination that a non-VRLTA tenant does not have, and it's possible that a non-VRLTA lease could waive the tenant's right to use this provision (as with last week, I only say possible because there is no case law on that possibility at this point).

Pre-Conditions to a Notice Termination

The law for notice terminations for non-VRLTA leases is laid out in Va. Code Section 55-225.13 and for VRLTA leases in Va. Code Section 55-248.21.  Both sections contain the same preconditions:

• The lease must be a residential lease of a "dwelling unit" (in other words, house, townhouse, condo or apartment).
• The landlord must be engaging in acts, or failing to engage in acts, that put the landlord in violation of your lease, the law, or both.
• The act or omission by the landlord must be a "material breach" of the lease, or if it is a breach of the law that breach must "materially affect" the health or safety of the occupants of the property (in other words, the fact that your landlord won't give you a rent receipt as required by Virginia Code Section 55-225.15 probably won't qualify, but the fact that your landlord hasn't fixed a roof leak which could lead to mold should qualify).

Further, for both laws, you need to figure out whether the breach by the landlord is "remediable" or "non-remediable."  It is remediable if there is something the landlord could still do to fix the problem.  It is non-remediable if nothing the landlord does now can fix the problem.

Process if Breach is Remediable

The process for a remediable breach is:

1. Ask, has the landlord done this before?  If yes, go to step 2, if no, go to step 4.
2. Ask, did I follow the procedure below the previous time?  If yes, go to step 3, if no, go to step 4.
3. Ask, does it appear that the landlord's violation this time was intentional?  If yes, stop here and go to the process for a non-remediable breach, as that process is the same.  If no, go to step 4.
4. Send a written notice to the landlord (generally certified mail will suffice) outlining the condition and the landlord's violation, and stating that if the condition is not remedied within 21 days, then upon 30 days after the landlord receives the notice the lease will terminate (this is colloquially known as a 21/30 day notice).
5. While your letter is outstanding, continue to pay your rent in full and on time.
6. If, within 21 days, the property has been fixed and the breach remedied, the process ends here.  Your lease continues.
7. If, within 21 days, the property has not been fixed and the breach remedied, make preparations to ensure that you will be out of the property on the 30th day.
8. On the 30th day, no further notice is required.  Leave the property, return the keys to the landlord, and stop paying rent.

Process if Breach is Non-Remediable

The process for a non-remediable breach is:

1. Send a written notice to the landlord (generally certified mail will suffice) outlining the condition and the landlord's violation and stating that the lease will terminate upon 30 days after the landlord receives the notice.
2. While your letter is outstanding, continue to pay your rent in full and on time.
3. Make arrangements to ensure that you will be out of the property on the 30th day.
4. On the 30th day, no further notice is required.  Leave the property, return the keys to the landlord, and stop paying rent.

Post-Termination Matters

There are some ancillary issues come with using this provision of law.  Specifically, what about your security deposit, and what about any damage you suffered as a result of having to terminate your lease early (maybe your new place is more expensive to rent, maybe you incurred unexpected expenses, etc.).  This is where the option I mentioned in the beginning comes in where it is up to you if this process occurs entirely outside of court or not.  If you want to, you can just let those things go.  Otherwise, you can file suit for unreturned security deposits.  Moreover, for the damages you suffered, both the VRLTA provisions and the non-VRLTA provisions allow you to file suit for damages, along with injunctive relief.  Now, I've never been able to come up with a situation where injunctive relief would be sought (after all, this only comes up after you've terminated the lease, so you can't use it to force the landlord to fix a problem), but I'm open to thoughts others may have.  For damages, though, these provisions specifically allow you to pursue them.  Best of all, though, they also specifically allow you to recover attorneys' fees in the process.  This is a very rare situation where even non-VRLTA tenants can recover attorneys' fees.

Risks

Notice termination is not without risk.  Questions of whether or not a lease has been violated in a "material" way, or whether or not a breach of the law "materially affects" health and safety are legal questions.  A non-legal mind can easily get these questions wrong (and even an attorney can be wrong depending on the judge you end up in front of).  If you take the notice termination approach, it is entirely possible that you will be sued by the landlord for unpaid rent, possibly covering the entire remainder of your lease term.  If a judge determines that your use of the notice termination was improper, or you did not follow the proper procedures with it, you could be held liable for those amounts - which can be devastating when you are likely also already paying rent in your new home.  As a result, this approach should only be taken by someone who is very confident that their situation qualifies.

Notice Termination vs. Tenant's Assertion

So, why would you choose this approach over a Tenant's Assertion, or vice versa?  I'll outline some reasons here.

Advantages of Notice Termination over Tenant's Assertion

• Can be done almost entirely, or entirely, out of court and with minimal legal fees
• Occurs on a faster timeline than a Tenant's Assertion
• Unlike Tenant's Assertion, Notice Termination will still be effective even if the amount of time landlord has taken to fix the problem is not "unreasonable"
• Allows the tenant to recover his attorneys' fees in a suit for damages the tenant has suffered

Advantages of Tenant's Assertion over Notice Termination

• Tenant does not necessarily have to terminate lease, and thus can likely remain on property if victorious
• Landlord's violation of law does not have to "materially" affect health and safety
• Allows for ongoing court review of landlord's conduct
• Allows for possible abatement of rent while still living on property
• Worst case scenario if you lose is that money you have already paid into escrow will go to landlord, so you will not face risk of lawsuit from landlord

Conclusion

In the great panoply of tools available to tenants that do not require self-help, notice termination is another valuable way to protect your rights as a tenant.  If you are in a situation where notice termination may be warranted, please do not hesitate to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me.  Our initial consultations are free for up to half an hour!

Avoiding Tenant "Self-Help" Part 1 - Tenant's Assertions

As always, before reading my post, please review my disclaimer by clicking on the link above, or by following this link.  As always, any principles discussed apply only to the Commonwealth of Virginia.

Update:  The Landlord/Tenant portion of the Code of Virginia was renumbered in 2019.  Tenant's assertions are now governed by Va. Code Sec. 55.1-1244 but the rules remain largely the same.

Introduction

Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help.  Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.).  If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc.  As a result, it is important you avoid self-help.

Since posting my "don't do self-help" post in July, however, I've gotten numerous questions about what the alternatives are.  Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants.  While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful.  As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease.  Today's post will discuss a legal proceeding known as a "Tenant's Assertion."

VRLTA vs. Common Law/Chapter 13 Lease

Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease.  While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be.  Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages.  The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar.  In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).

What Is A Tenant's Assertion?

So, before getting started, you might be wondering what a tenant's assertion actually is.  This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property.  A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord.  The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can.  I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.

Pre-Conditions to a Tenant's Assertion

The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27.  You will notice the two sections are very similar but have some differences.  Both sections include the following required pre-conditions to a tenant's assertion:

• A condition must exist on the property that allows an assertion to be approved.  This condition must be a "material" violation of the lease or of the law, a fire hazard or serious threat to the life, health or safety of occupants, a lack of heat or hot or cold running water, a lack of light, electricity or adequate sewage disposal facilities, an infestation of rodents, or the existence of paint containing lead pigment on surfaces within the dwelling
• The landlord must have been "served" with a written notice from the tenant or a state agency of the condition and failed, within a reasonable amount of time after that service, to fix the condition (note that more than 30 days is presumed unreasonable)
• The condition must remain up to the day of the trial

Additionally, the VRLTA has these provisions (which the common law assertion does not):

• The "condition" on the property cannot be a rodent infestation if the property is a single-family dwelling (namely a detached home or townhouse).
• Va. Code Section 55-248.4 allows notices to be served simply by first-class mail as long as you also simultaneously swear out a certificate that you've sent the mail.  The non-VRLTA tenant needs to serve notice either by formal service, or by certified mail (unless he can show proof that the landlord actually received the notice).

If those pre-conditions are met, however, you can go ahead and file your tenant's assertion (note that if you file the assertion before giving the landlord a reasonable time to remedy under the assumption that any trial will occur after such amount of time has elapsed, you are in violation of the statute and could be sanctioned by the court).

While Assertion is Pending

While your tenant's assertion is pending, you must continue to pay your rent in full.  Instead of paying it to your landlord, however, you must pay it to the court.  If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again.  If you do, however, your money is held in escrow.  This is the true advantage of a tenant's assertion over an after-the-fact lawsuit.  If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.

Trial

Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial.  It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed."  This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start!  The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).

If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:

• That the condition is, in fact, of the type listed in the statute (material noncompliance with lease or law, hazard to health and safety, etc.),
• That the condition still exists,
• That notice was properly given to the landlord, or that the landlord had actually received notice even if not properly given,
• That the landlord was given a reasonable amount of time to remedy the problem before the assertion was filed, and
• That you have paid all rent, in full, into the court while the assertion has been pending.

If you successfully show all of those things, you will win, and the judge will grant you one, some, or all of a myriad of possible remedies, which include, but are not limited to:

• Terminating the lease,
• Dividing some or all of the money in the escrow account between the tenant and/or landlord as the court sees fit,
• Ordering the escrowing of rent continue until the repairs are complete,
• Abating rent prospectively and/or retroactively,
• Ordering money in escrow be paid directly to a contractor in order to repair the property,
• Referring the matter to a state or municipal agency for investigation, and
• Ordering escrow funds be used to pay a mortgage in order to prevent foreclosure.

After Trial

It is very rare for a trial to end a tenant's assertion unless the landlord prevails.  Instead, some form of continuing of the escrow account usually occurs.  If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order.  Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs).  When that happens, though, the escrow is not terminated, but a new six month period begins.

The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.

Conclusion

When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy.  If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation.  Our initial consultations are free for up to half an hour!

Common Sense vs. The Law - When Doing What Makes Sense IS the Right Choice

As always, before reading this post, please review my disclaimer by following the link above, or by clicking on this link.  As always, any legal principles involved in this post apply only to the Commonwealth of Virginia.

Introduction

Most people who have learned anything about the law know that the law's relationship to common sense is tenuous at best.  Most lawyers will regularly advise people that "well, I know that makes sense, but that's not what the law says."  Usually that's good advice, but not always, and I hope in this post to explain when listening to your common sense is a good idea.

The Self-Help Example

As is frequently the case, my inspiration for writing this post comes from experience with an actual case.  As is unusual, however, I think talking about that case in some level of detail is warranted to explain the point.  As a result, please remember that every case is unique, and relies on its own sets of facts.  Do not conclude that just because something happened in one case it will happen in yours, rather your own case is unique and will require its own unique considerations.

Recently, I represented a client who was a tenant to out of state landlords.  Many months earlier, the basement of the house my client was renting was flooded and rendered unusable.  Under both my client's lease and the law, she should have been entitled to abate some of her rent while repair was pending, but she took no action, relying instead on the landlord to do the right thing and just repair the basement quickly.  After several months of practically no repairs, however, she finally got fed up and withheld part of her rent from one of her rent payments.  Those of you who have read my blog before already know that this is self-help, and that in a residential lease self-help is a big no-no.  The landlords were outraged, hired an attorney, and my client received a pay or quit notice.  That's when she came to me.

We agreed to pay back the withheld rent, along with late fees and the reasonable attorneys' fees the landlords had paid to get the pay or quit drafted and served.  The next week, I filed a tenant's assertion on my client's behalf, seeking fairly extensive relief.  After two months of rent going entirely into escrow, we finally had our trial.  At trial, the judge agreed that my client should have an abatement of her rent.  However, the judge's commentary didn't end there.  He then expressed his outrage that the lawyers for the landlord had advised their client to submit a pay or quit, and called that conduct "reprehensible."  Even acknowledging the landlords were right under the law, the judge expressed concern at their morally outrageous behavior.  In the end, my client was reimbursed partial rent (a higher "portion" even than she had withheld the one month she did withhold) dating all the way back to the date the basement was flooded, and my client was even reimbursed the late fees and attorneys' fees she'd paid on the pay or quit.

The reason this relates to my blog post is this - if the landlords had ignored the law and just listened to their common sense, done what is right, all they'd have lost out on is a little bit of rent for a few months until the basement was finished.  Instead, they looked bad to a judge and lost out on a heck of a lot more rent.  In the end, not doing the "common sense" thing probably cost the landlords around $4,500 or more (not including the legal fees they spent defending my Tenant's Assertion).  That's a lot of money to pay just to prove a legal point.

So, How Do You Tell the Difference?

So, it's simple to look at an example like that and say "ok, sure the landlords were jerks and shouldn't have been, but how do you know when to listen to common sense instead of the law?"  Well, the rule I suggest following is that if you are legally barred from doing what common sense tells you to do, follow the law.  If you are legally required to do what common sense says you shouldn't do, follow the law.  However, if you only have the legal right to do or not do something common sense says you should not do or do, respectively, but there's no legal requirement, then listen to common sense.

Using my example above, my client was legally barred from doing what common sense told her to do (withhold rent), so she should have listened to the law, and ultimately she did.  The landlords, however, only had a legal right to send a pay or quit.  They weren't required to.  They could have just accepted her withheld rent and said "yeah, we should have repaired the basement faster, sorry, this is an ok amount to pay us until the basement's finished."  That's where the difference comes in.

Now again, you might wonder "ok, so where's the limit?  Surely in your example, the landlords should have filed a pay or quit if your client had withheld all of her rent, since the basement is nowhere near all of the rented house."  Well, that's the thing.  Common sense is flexible while the law, generally, isn't.  If the amount my client had withheld had been unreasonable (obviously I believe it was not, nor did the judge in this case) then common sense would say to the landlords to exercise their legal rights.  Common sense and the law don't always conflict.

Nonetheless, while every situation is unique and I'd encourage you to consult a lawyer when making your own decision for your case, I believe the rules I've outlined above generally hold.  When you are legally barred from doing or required to do something your common sense says you should or shouldn't do, respectively, listen to the law.  When the law only permits you to do or not do something your common sense says you shouldn't or should do, respectively, then listen to your common sense.

More Examples

Well, the above is a bit abstract, so I want to use some more examples.  Unlike my opening example, however, these examples are not taken from real cases.  Like my opening example, however, each case is unique, so do not assume that something I outline here applies to your case without consulting with an attorney first.  As I said, however, the following examples are simplified, and made up.

John and Suzie are married and having marital troubles.  They have no children.  They decide to get a divorce.  John demands that Suzie gets out of the house, and while she's out one day, John changes the locks.  Suzie remembers that a spouse cannot just kick another spouse out.  Suzie's sister, however, owns an estate with a luxurious guest house and has regularly told Suzie she can move into the guesthouse for free if she ever needs to.  In that case, despite Suzie having the right to stay in the marital home, I would suggest she move out and move into her sister's guest house (after having John sign some papers making clear that he recognizes Suzie is not abandoning the marriage).  This would get her out of a probably unpleasant home situation without too horribly interrupting her life.  If John were my client, however, I'd tell him to return the locks, since he is legally barred from forcing Suzie out at this point.

Bill rents a condo from Jason.  Bill cannot afford the rent anymore, so he stops paying it.  He finds a new place that he can afford and moves there.  In the meantime, without serving any notices or filing an unlawful detainer, Jason changes the locks and bars Bill from the property.  Bill wants to sue for unlawful eviction.  If Bill's my client, I would advise him to let it go.  He hasn't paid rent, he's already moved out, all he's doing by suing is getting Jason to get his papers in order to file an unlawful detainer that will likely cost Bill more.  If Jason's my client, however, I would advise him to immediately change the locks back and let Bill in whenever he wants, since what Jason did was illegal.  I'd, of course, also advise him to get his notices in order and file an unlawful detainer.

So those are a couple more examples I hope will help explain what I mean.  I suppose the simplest saying to use is that just because you can do something doesn't mean you should (and the reverse, when you must do something, then you should).

Conclusion

Sometimes people get so caught up in the law and their rights that they forget that common sense still has a role to play in their decisions.  Much like just because the first amendment says you can say something doesn't mean you should, so too with exercising your other legal rights.  In some cases, ignoring your common sense can cost you dearly.  If you're in a situation where you think your common sense and the law may be in conflict, I'd advise you to consult with an attorney before deciding what action to take.  If you want that attorney to be me, please call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up an initial consultation.  Our initial consultations are free for up to half an hour.

Legal FAQ Part III

As always, before reading this post, please review my disclaimer by following the link above or by clicking on this link.  As always, the legal principles discussed in this post apply only to the Commonwealth of Virginia.

Introduction

In the past, I've done FAQ's when I've had writer's block or when I wanted to introduce a new concept to the blog.  Today, I'm doing it because I have had several ideas for posts to put together, and realized that all of them are too short to really warrant their own full blog post - so they worked better as FAQ's.  As always, the format will be simple - I'll pose a question in bold, usually one I am asked a lot, and then I will attempt to answer it in the paragraph that follows.  At the end, I'll ask you to submit any questions you may have for future FAQ's.

If I'm involved in a lawsuit but have a lawyer, when do I actually need to take off work and come to court?

Note:  This question was sent to me by a reader in response to my ask the lawyer blog post.

This is actually a very common question I get asked when representing clients.  The answer is two-fold.  First and foremost, you need to be in court any time there's a hearing in which your testimony will be needed.  This means if the hearing is about a factual issue (as opposed to the facts not being in dispute, but there being a legal issue) there's a good chance you need to be there.  Second, if there's a hearing where you not being there might look to the judge like you don't care about the case, you should be there.  For both of these reasons, however, your lawyer is likely to know what's needed and should be able to advise you.  In my experience, hearings other than the trial in which testimony is taken are rare.  Pendente Lite hearings in family law cases, hearings on a Plea in Bar, and hearings on matters that will take more than 30 minutes to be heard tend to be the only ones I can think of - but again, for your case, your lawyer will know.  For the second, this is pretty much only at trial.  In a civil lawsuit, if you have a lawyer, there is no requirement that you actually attend your trial (unless you have been served with a subpoena).  Nonetheless, even if you don't plan to testify, failure to be there will usually look bad to a judge unless you have a good reason.

While every case is different so I cannot speak to the facts of your particular case, in most non-family law cases I have handled, I've needed my client to come to court exactly once (the date of trial).  Even in family law cases, it's typically been only twice (trial and a Pendente Lite hearing).

My tenant has stopped paying rent and skipped town - how long will it take before I get my property back to re-let?

So, again, every case is different, and even worse - the answer is probably different from county to county, so I'm mostly speaking from experience in Fairfax County here.  Even though your tenant has disappeared, you still need to serve them with a 5 day pay or quit notice.  The sheriff or a private process server will need to post it on the front door of the residence.  You must wait 5 days from that point before you can file your Unlawful Detainer (assuming no payment is made).  If after five days you file an unlawful detainer, the return date will usually be set 16-21 days from then.  If, at the return day, nobody shows up for the other side, you can ask for a default judgment, and, unlike many other situations where there is a 10 day waiting period, you can ask that a "writ of possession" be immediately issued.  Upon the issuance of a writ of possession, the sheriff's office will receive documents needed to execute the writ.  After usually about two weeks, you will get a call from the sheriff's office to find out your availability to be at the property.  Once you agree on a date, which must be at least four days in the future, you and a sheriff's deputy will go to the property and you will be restored to possession of it.  In short, if there is no opposition from the tenant at all, you can reasonably expect to have possession back somewhere between 40-45 days after the process begins - but it's certainly not a guarantee.

As of December 31st, my wife and I were separated.  I really don't want to have to work with her to file a joint tax return.  Can I file separately without taking the tax penalty for doing so?

Note: This question was sent to me by a reader in response to my ask the lawyer blog post.

I am not a tax attorney, but this is an issue we have to address regularly nonetheless.  My first comment would be to suggest that you try to work through your issues and file a joint return.  You are likely to each pay less tax if you do this.  If you absolutely cannot stand it, however, my understanding of the tax code is that you can file as a single taxpayer if you are legally separated.  This would avoid the penalties associated with filing in a "married, filing separately" return.  In Virginia, however, we don't have a "legal separation" concept.  Your separation becomes "legal" as soon as one person leaves and one of you decides that the separation should be permanent.  Tax law, as a surprisingly large number of federal laws do, defers to state law when determining if you are legally separated.  Since, as discussed above, Virginia considers you separated the moment one of you leaves and one of you decides that the separation should be permanent, that's been generally accepted to be all you need in Virginia to allow you to file a "single" federal tax return.

While my divorce case was pending, I lost my job and can no longer afford the mortgage on the marital residence.  I found a buyer willing to pay a good price and give us a decent bit of equity, but my husband won't sign the sales papers and wants to wait to hear how the court will divide the house at trial.  The house will be foreclosed on before trial, though, since we can't afford the mortgage!  What can I do?

This is a bit of a sticky issue.  Your husband may be right that it's a good idea to get the court's decision on how to divide the house before selling, but sometimes the reality on the ground just doesn't allow for that.  He's either being unreasonable, or it's always possible that in anger he's sabotaging your assets.  He may very well have decided that he's willing to give up his share of the house just to watch you not get yours.

Fortunately, there is a solution.  Virginia Code Section 20-103, the section that allows you to file for pendente lite relief, allows a court to make a pendente lite order "to preserve the estate of either spouse, so that it be forthcoming to meet any decree which may be made in the suit."  There is no restriction given on what courts can do to preserve the estate of either spouse, either.  So, if you can convince a court that there will be a substantial loss to both of your estates if the home goes into foreclosure, the court may well order your husband to sign off on the sale.  If he still refuses, the court can appoint a "commissioner" to sign on your husband's behalf, and by law the signature is just as valid as if your husband had signed himself.

Conclusion

And that's it for today's FAQ's.  As always, feel free to e-mail me at sleven@thebaldwinlawfirm.com if you have questions you'd like answered on a future blog post or FAQ.  In addition to eventually posting the question and answer if I think it's a good one, I'll usually also immediately respond to your e-mail with a short answer.

It's Not Me, It's You - When Losing Isn't Your Attorney's Fault

As always, please review my disclaimer before reading this post by following the link above, or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

It's amazing to me how many times I hear from people who have just lost in court coming to me looking to hire a new attorney because they are convinced the reason they lost is their old attorney.  As I delve into my consultation, however, facts begin to come out in the discussion that make one thing clear - the loss had nothing to do with the quality of the prior attorney.  Sometimes my response is "It sounds to me like the judge just got it wrong, so let me help you try to fix it."  Sometimes potential clients are shocked (and proceed not to retain me) when I respond "I hate to say it, but I think the judge made the right decision, and I don't think having another attorney would have helped."  I can count on one hand the number of times I have actually agreed that the prior attorney did a bad job.

There's an old saying in law that the quality of your attorney makes the difference between "winning" and "losing" a case (I use quotes because winning and losing in the legal context is not always clear-cut) in somewhere around 5% of cases.  I tend to agree with that statistic if you add the caveat that having an attorney at all versus not having one makes the difference in somewhere closer to 20% of cases (note that this is still a minority).  So, why do I still say having an attorney, and not just any attorney but a good attorney, is so important?  For that, you will need to read on.

Was Your Loss Really Your Attorney's Fault?

When you are living your case, it is often hard to consider the possibility that you are wrong.  Maybe you are morally right, but legally wrong.  If you got your leg crushed by a fallen piano and had to have it amputated because it took too long to get the piano off your leg, you can't sue the people who just stood around laughing at you instead of helping.  No matter how wrong what they did was morally speaking, there is no legal duty to help you - as long as they didn't cause the piano to fall in the first place, they're not liable, and no attorney is going to change that.

Now, usually things aren't as obvious, but at least over time, you should be able to get a hint.  Remembering that all cases are different so the facts of any given case may not apply to yours, I am aware of a child custody case in which the non-custodial parent has filed suit to take custody away at least four times in the past five years.  He has lost every time, and every time a new suit is filed within a couple months with a new attorney.  At some point, he might want to start asking if it's really his attorneys, or if it's him, that's losing his case.

Ultimately, the thing to remember is exactly what I say in the introduction.  The quality of the attorney makes a difference in trial results about 5% of the time.  That means that if you lost, there's a 95% chance that a better attorney wouldn't have done any better for you.

Why Having a Good Attorney Still Matters

So if it's so rare for the quality of an attorney to affect the outcome of a trial, why do you still need a good one?  Or why do you need one at all?

Well, let's say you get sued for $50,000, and I told you that with attorney A you'll come away paying $45,000 while with attorney B you'll come away paying $100,000.  Wouldn't you choose attorney A?

You see, in the scenario I outline above, attorney A is the better attorney.  This is the one to whom you come to your consultation, you explain why you don't think you're liable, he reviews your case, tells you why you are liable, then helps you settle for $40,000, racking up only $5,000 in legal fees in the meantime.  Attorney B tells you what you want to hear, tries to find a way to defend your suit, racks up $50,000 in legal fees preparing for trial, and loses.

My point is that the most valuable tool a good attorney brings to the table is knowing when your case is weak.  A good attorney will know that you have a losing case, will explain to you why you have a losing case, and instead of wasting billable hours preparing for a worthless trial, will help you settle the case as quickly as possible so you can move on with your life.

Understand that in my scenario here, both attorneys would lose if the case went to trial.  The difference is, the better one will help you avoid trial to begin with.

How to Maximize Your Attorney's Effectiveness

So, with that covered, the next question might be what you can do to help your attorney represent you to the best of his ability.  The simple answer to this is listen.  Your case is yours, and all decisions are ultimately yours, but if your attorney tells you that you have a losing case, you may want to consider that your attorney may be right.  Certainly you should feel free to get a second opinion, or if you've heard from friends, colleagues or other attorneys about ways that you have a good case, mention those ways.  I know I have had clients bring up to me arguments they thought were winning only to have me explain why these did not apply to their case.  This left the client much more satisfied than sitting there just wondering why I wasn't looking at going this other route.

The second way to maximize your attorney's effective is to ask.  I am at my best when my clients have almost as good an understanding of the law and legal issues of their case as I do.  Since an attorney will never know the facts as well as the client does, and the client will never know the law as well as the attorney does, each person asking the other questions whenever they come up helps maximize knowledge.  If you, as a client, know the law almost as well as I do, you might suddenly realize that a fact you never thought was important before actually is important, then you'll mention it to me, and now my ability to represent you has been improved.  I've never known an attorney unwilling to answer client's questions about the law and the way it works in their case - any time you have a question, just ask.

Conclusion

Losing is hard for anyone, but when you believed yourself to be right, it is even harder.  Often the easiest target for blame for a loss in court is the quality of your attorney, but you need to remember that this is rarely the actual cause of a loss.  A good attorney is not necessarily one who will make the difference between winning and losing in court, but between maximizing your gains or minimizing your losses outside of court.  The most valuable things you, as a client, can do to ensure that your attorney is as effective as possible is to listen to what your attorney has to say about your case, and to ask your attorney whatever questions you may have.  If you have a case that you have lost but would like to appeal or take another crack at, or if you'd like a second opinion on something another attorney has told you, please feel free to e-mail sleven@thebaldwinlawfirm.com or call (703)281-0134 to set up an initial consultation with me.  Our initial consultations are free for up to half an hour!

No Blog Post This Week - But Stay Tuned!

Those of you who are regular readers of this blog know that I try very hard to make a post at least once a week.  Since starting this blog, I have succeeded at that goal.  Unfortunately, this week will be the first week I miss.

At present, I have a trial scheduled for tomorrow, a mini-trial in another case scheduled for Thursday, and a hearing in yet another case on Friday, followed by a family photo session with my wife and son Friday afternoon.  As a result, my choices this week have been to rush through a short blog post, or to not do a post at all.  As I thought about it, I decided that a rushed blog post would not be up to the quality that I like to keep my blog posts to, and as a result, I would be doing a disservice by doing that.  So, I am not going to post this week.

Nonetheless, unlike my post in August, I am not hitting writer's block.  I have plenty I'd love to talk about right now, and have several extensive posts planned - so please stay tuned, and you'll hear back from me next week!

Dead-beat Diplomats - Evictions, diplomatic immunity and the law

As always, please feel review my disclaimer before reading this post by following the link above or by clicking on this link.  As always, the principles discussed apply only to the Commonwealth of Virginia.

Introduction

Working so close to Washington, DC, it's only inevitable that my work occasionally brings me into a situation in which I must deal with diplomats.  This inevitably means dealing with issues related to Diplomatic Immunity.  Now, most people understand that Diplomatic Immunity prevents a country from arresting the diplomats of another country.  What many people do not understand is that Diplomatic Immunity also has effects in the context of civil law.

The reason most people do not understand this is that Article 31 of the Vienna Convention on Diplomatic Relations provides an exception to immunity from civil jurisdiction for actions "relating to any professional or commercial activity exercised by the diplomatic agent... outside his official functions."  This means most things you would sue a diplomat over (not paying a bill, for example) would likely fit into that exception.  However, there are many things that don't (if a diplomat hits you with his car while he's driving to work, you'll have to sue him in his home country).  Perhaps the biggest place, however, where a diplomat can use his immunity to interfere with civil actions is in landlord-tenant law.  Simply put, a diplomat cannot be evicted.

Inviolability

Now, you might say, "Hey, renting a property is outside a diplomat's 'official functions' so why can't I evict a diplomat?"  The answer is that there are two types of diplomatic immunity - one that protects a diplomat from being brought to court (the type we most often think of), and one that protects a diplomat from being harassed by local authorities (called "inviolability").

As discussed above, the relevant law here is the Vienna Convention on Diplomatic Relations, a treaty entered into in 1961 and ratified by most of the world, including the United States.  As a federally-ratified treaty, the Convention pre-empts any state law to the contrary.  Article 22 of the Convention requires that the premises of a diplomatic mission be inviolable, meaning that "the agents of the receiving state may not enter them, except with the consent of the head of the mission."  This means, for example, if there's a hostage situation in the Swedish Embassy, an American SWAT team cannot go in without first getting permission from the Swedish Ambassador.

Now, that may seem simple enough to understand, but the relevance of this to landlord-tenant law is a little bit more complex.  In the 1980's and 1990's, the mission to the UN of the nation of Zaire became severely delinquent in its rent for its office space in New York.  The landlord sought to evict Zaire.  The Second Circuit, in a ruling that has been widely accepted across the country since it was made, ruled that since enforcing the eviction would require the local police to enter the premises of the mission, this would violate Article 22 of the Convention, and as such an eviction could not be ordered.

Now, this might all make sense to you - that one cannot take action like this against the official mission - but why should this apply to a diplomat's private home?  Because Article 30 of the Convention requires that "the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission."  In other words, you cannot do to the home of a diplomat what you cannot do to the diplomatic mission.  If you cannot forcibly evict a mission, then you cannot forcibly evict a diplomat.

Reasons to Rent to a Diplomat Anyways

Now, you might look at this and say "holy crap, if the diplomat violates his lease, I'm screwed, I should never rent to a diplomat!"  I can understand the reaction.  The inviolability of a diplomat means you cannot evict the diplomat if he is not paying rent, committing a crime on the property, or even just staying past the end of the lease term and refusing to leave.  Nonetheless, saying you should never rent to a diplomat may be a little extreme.  There's a reason this isn't a well-known issue - it doesn't come up much.

Diplomats are representatives of their countries.  They are usually chosen from amongst their countries' respected citizenry, and they usually consider it to be part of their job to leave a good impression with all they encounter in their host country.  The fact is, the simple moral obligation to obey their lease will be enough for most diplomats.

Moreover, many diplomats do not pay for their own housing, and you would in fact be contracting with their mission - and by agency, their home country.  Most countries are pretty reliable to pay their bills - they have the money, and they are concerned with maintaining positive diplomatic relations.

Finally, even if your diplomatic tenant does become behind on rent, you can still sue and collect on your judgment via garnishment (possibly not of wages, but bank accounts, for example, remain available).  You just can't evict.

Ways to Protect Yourself

So, if after reading the above you conclude that, ok, maybe it is ok to rent to a diplomat after all, you might be wondering how best to protect yourself.  I'll start off by giving you one thing you cannot do.  You cannot require the diplomat to waive his immunity as part of your lease.  Well, that's not completely true, you can, but it would be meaningless.  This is because diplomatic immunity is not a right a diplomat can waive.  Diplomatic immunity belongs to the country and only the country can waive a diplomat's immunity.  And no, asking a mission to sign off on a waiver for a lease is just not going to happen, so it's probably best not to try.

The first thing I would recommend doing as a landlord is finding out - if your diplomat is paying for his own housing - if his mission would be willing to co-sign the lease.  As I said, missions are going to be fairly reliable payers, so having a mission as a back-up is always a good plan.

Regardless of whether or not the mission will co-sign the lease, the recognition of the potential for serious issues may warrant charging a higher than usual security deposit.  The Virginia Residential Landlord and Tenant Act allows a security deposit of up to two months' rent, while a common law lease can charge anything that is not "excessive."  If you are not in a VRLTA situation, I would strongly recommend considering asking for a security deposit of between 6 and 12 months of rent.  I believe the risks involved could warrant an argument that such an amount is not excessive and it keeps you protected in case of a prolonged dispute.  The advantage of a high security deposit is that you do not give possession of the property until the deposit is paid, and if the deposit is not paid, you don't have to evict the person, since they never got to move in to begin with.

Finally, you should consider letting the State Department know that you are willing to lease to a diplomat.  The State Department likes having landlords that are willing to do so - it helps with diplomatic relations - and letting them know this in advance will make them more likely to work with you if an issue comes up.  For example, if your diplomat really does stop paying rent, you can ask the State Department to request the foreign country waive the diplomat's immunity, and if they do not, declare the diplomat persona non grata and have them dismissed from the country.  There's a good chance that failure to pay rent alone will not lead to an immunity waiver or a PNG declaration from the State Department, but if that diplomat's had other issues, non-payment of his rent could very well be the straw that breaks the camel's back.

Discrimination

Now, looking at the above, some of your alarm bells may have gone off about housing discrimination.  Charging different people different security deposits, or simply refusing to rent to a class of people, probably sounds like a problem to you.  Good, all landlords should think this way.  However, at present there is no law that bars you from "discriminating" against diplomats in renting out property.  As such, you can refuse to rent to diplomats, or charge higher security deposits to diplomats.

Conclusion

Diplomatic immunity has a surprising impact on landlord/tenant law.  Specifically, diplomats cannot be evicted.  This should cause any landlord to approach a diplomatic tenant with caution.  Nonetheless, by and large diplomats are reliable payers, and landlords should not be afraid of renting to them just because of the challenges that might arise in the rare case of a bad diplomat-tenant.  If you are considering renting to a diplomat and would like to discuss your options, or if you are a diplomat-tenant having trouble with your American landlord, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation with me to discuss your options.  Your initial consultation is free for up to half an hour!

The Paycheck Stops but the Bills Don't - Government Shutdowns and Child/Spousal Support

As always, please review my disclaimer before reading this post by following the link above or by clicking on this link.  As always, all legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

As an attorney who practices in Northern Virginia, it's fairly unsurprising that many of my clients, opponents, potential clients, etc. are federal employees.  Federal employees face an unusual array of challenges when it comes to family law to begin with.  Consider, for example, an undercover intelligence official, who cannot submit his true paystubs to court, cannot explain to the court why he cannot submit his true paystubs, and cannot even tell his lawyer why he cannot submit his true paystubs.  Well, now federal employees are facing a whole different issue - what to do with those spousal and child support payments they might have coming due when they aren't getting paid, either because they are furloughed (meaning they cannot get a new job in the meantime, but have no guarantee of ever getting paid for their time off), or because they are working without pay (although they at least know they will get paid eventually).

The fact of the matter is, child and spousal support are a continuing obligation, and a temporary halt in your pay does not relieve you from your obligation to pay.  There are options available to you, however, and I hope to cover those in this blog post.

Option 1 - Agreement

Perhaps the simplest way to solve this problem would be an agreement with the other party.  If you are on good terms with your ex, this may be a viable option.  You should contact your ex immediately to discuss the issue.  A reasonable solution might be to suspend payments while you are going unpaid, with an agreement that if you do not get back pay, those payments will be wiped out, but if you do get back pay, you will then pay the amounts you didn't pay while your payment was suspended.

Please note, however, that if DCSE is involved in your case, this method will not be possible, as DCSE cannot agree to short-term changes without court involvement.

Option 2 - Court Order

A court ordering support is required by law to consider only your "current" situation.  If you are currently being unpaid, and it is not your fault, then a court has to consider your income at $0, and re-do your support accordingly.  Unfortunately, that's where the simplicity of this solution ends.  Consider, for example, that from filing until trial, it could easily be many months, even close to a year, and the shutdown will almost assuredly be over by the time your case is heard.  An alternative option would be to file for a modification, knowing it won't be granted, but then to file a motion for pendente lite relief to get your support reduced near immediately (a motion for pendente lite relief can usually be heard within a week or two of being filed, and sets your support pending the final hearing).  Once the shutdown ends, you can then withdraw your motion.

This is a complicated process, however, and the odds that you will make a mistake without representation are high.  If you do hire an attorney, you are likely to end up spending more on attorneys' fees than you save in support.

Option 3 - Suck it up and Pay

If the prior two options are not available to you, then you may just need to scrape the money together and pay, recognizing that it unlikely that the shutdown will last beyond one monthly payment (although given the current acrimony in Washington, that's certainly not a guarantee).  There's not really much more to say about this option, for the majority of people for whom option 1 is not available, my guess is this option will be your best bet.

Option 4 - Unilateral Non-payment

This is the most dangerous option.  If options one and two aren't available to you, and option three is actually impossible for you, then you may have to just not pay.  Maybe DCSE and/or your ex won't take any action, but there is a chance they will.  If they do, you will definitely be found to have an arrearage for the unpaid amount (which will accumulate interest).  You will also risk going to jail, although jail time on a first violation is unusual and it cannot be ordered if you are able to prove that you actually could not pay through no fault of your own.  There could be some negative long-term consequences to taking this option, but if it's your only choice, then it's your only choice.

Conclusion

The government shutdown presents a unique challenge to federal employees who owe support.  The presumed temporary nature of the shutdown narrows the options available, and just about every option has some undesirable component to it.  Nonetheless, there are options, and you should know them before you take action.  If you are a federal employee who is going unpaid through this shutdown and you would like to review what options are best for you, or if you are being paid support by a federal employee and want to know what actions to take to protect yourself, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Your initial consultation is free for up to half an hour!

Paying for Your Divorce the Rest of Your Life - Spousal Support and the Law

As always, please review my disclaimer before reading this post by following the link above or by clicking on this link.  As always, the legal principles discussed in this blog post are applicable only to the Commonwealth of Virginia.

Update:  Some of the information in the below blog post is now outdated due to changes in the law.  Please see my 2018 and 2020 Relevant Changes in the Law post for details.

Introduction

When I have an initial consultation with someone about a divorce, if they make more money than their spouse, the first question I usually get is "how much alimony am I going to have to pay?"  I'll get the reverse question if my consult is with the spouse who makes less.  Unfortunately, the answer I always have to give, as is so often the case, is "it depends."  However, the "it depends" is even worse when it comes to spousal support (which is what we now call "alimony" since the roots of the word "alimony" imply that it is only paid by a man to a woman, while legally it can go either way now).

Perhaps the biggest complication with spousal support is that there are generally no "guidelines" for determining the amount.  Unlike child support, you can't just put the parties' incomes and a few other factors into a formula and churn out an answer (although there are some minor exceptions to this that I will cover).  This means spousal support is largely left to the discretion of the judge - and different judges will vary their opinions widely.  Fortunately, there is a little bit of law to help us out, but it's still very hard to come away from the law with an understanding of what any given case will result with.

Four Different Spousal Support Situations

To start off, it's worth noting that there are four unique situations in which spousal support can be awarded, and the law between them varies anywhere from minimally to widely.  Spousal support can be awarded as part of a divorce in a Circuit Court case, as a result of a Decree of Separate Maintenance in a Circuit Court case, as a result of a Petition for Spousal Support in the Juvenile & Domestic Relations District Court, or as a result of a contract (either pre-marital or marital - see my post on pre-marital agreements for the distinction).

To add even more complications to this issue, in case one party really needs support right now, while the above cases are pending that party can file a Motion for Pendente Lite Relief.  This means they are asking the court to award them temporary spousal support while the litigation is pending - and the law for setting spousal support then is different too!

Contractual Spousal Support

Contractual spousal support is probably the easiest of these topics to cover.  If, in a pre-marital agreement, marital agreement, property settlement agreement, or any other contract with your spouse you reached an agreement regarding spousal support, the court will enforce that agreement.  Note, however, the court will enforce it precisely.  If you include language in your contract allowing the court to modify support in the future, then it can, otherwise the support amount, and the duration of the award, is fixed and unchangeable.

This is very important to understand.  I cannot count the number of times I have seen Property Settlement Agreements where someone casually decided 20 years ago to pay a certain amount of spousal support for life, not realizing this meant that they were agreeing to continue to pay it after they were old and unable to work anymore.  I've seen people unable to enjoy a retirement because they promised lifetime payments without allowing for a modification.  Unless there is something glaring that warrants it, as a general rule I will never recommend to a client to agree to lifetime spousal support without including a clause allowing modification - and you should think twice before you sign an agreement that does this.

Spousal Support Pendente Lite

Now, if you don't have a contract or agreement, spousal support will be decided by the court, and like any litigation, any of the options take a substantial amount of time.  As a result, Virginia Code Section 20-103 allows you to file a Motion to temporarily set spousal support while a Divorce or Separate Maintenance action is pending, and Virginia Code Section 16.1-278.17 allows the same in a Petition for Spousal Support case in the J&DR Court.  Since the support awarded pendente lite is inherently temporary and will have allowed less evidence collection prior to hearing, the law for setting pendente lite support is a little simpler.

In the J&DR Court, Virginia Code Section 16.1-278.17:1 lays out a specific formula.  Under that formula, basically, when there are no children, spousal support will be equal to 30% of the payor's monthly gross income minus 50% of the payee's monthly gross income.  When there are children between the parties, then the support is 28% of the payor's monthly gross income minus 58% of the payee's monthly gross income.

The law laid out for pendente lite cases in the Circuit Court is not as clear cut.  Virginia Code Section 20-103(A)(i) just calls for the payor to pay "any sums necessary for the maintenance and support of the petitioning spouse."  As a result of this lack of clarity, several Circuit Courts have adopted their own "guidelines" that are applicable only to pendente lite hearings.  Fairfax County, for example, uses the same formula as the J&DR Court (actually, Fairfax County's guidelines came first, and the legislature liked them so much that they then codified those guidelines for all J&DR courts statewide).  Harrisonburg, however, has a very complicated formula that varies depending on whether each spouse is working or not, who is receiving child support, etc.  Richmond uses the J&DR formula when there are children, and uses 30% minus 30% (instead of 30% minus 50%) when there are not.  Courts that don't have their own guidelines often use another court's guidelines, or just come up with their own numbers that the judge thinks sounds reasonable.

J&DR Court Spousal Support

Ironically, despite the J&DR Court having possibly the clearest pendente lite spousal support law, it has probably the least clear final spousal support award law.  Virginia Code Section 16.1-278.15(F) requires only that the court "enter any appropriate order to protect the welfare of the spouse seeking support."  That's it, no further guidance from the law.  Obviously, judges tend to vary very widely in figuring out what the "welfare of the spouse seeking support" is, although in my experience, judges in J&DR Court cases frequently end up just applying the pendente lite guidelines (maybe with some adjustments) and go with that number.

Circuit Court Support

In a suit for Separate Maintenance or for Divorce, the Circuit Court when determining its final spousal support award must consider a series of "factors" laid out in Virginia Code Section 20-107.1(E).  These factors are, essentially:

- The income and expenses of each party
- The parties' standard of living during the marriage
- The duration of the marriage (from date of marriage to date of separation)
- The age and health of the parties, along with any special needs in the family
- Whether or not there are children too young for both parties to work
- The contributions, both monetary and non-monetary, during the marriage of each party to the well-being of the family
- Each party's property interests, including real property and personal property
- What is being done with the parties' marital property
- Each party's earning capacity or ability to increase their earning capacity
- Decisions made regarding each party's employment during the marriage
- The extent to which each party has helped the other increase their earning capacity during the marriage
- Any other factors the court wants to consider

In my experience, the income and expenses of the parties, the duration of the marriage and the earning capacity of the parties tend to be the most important factors, although all are considered, and I've certainly seen cases where the final result hinged on other factors.

After all of that is done, the question then really comes down to a) how much money does the payee really need to support him or herself (or, how much would he or she need if he or she had made an honest effort to find employment), b) can the payor actually afford that amount, and c) is it fair to order the payor to pay that amount.

As you can see, with all these issues coming into play, predicting a spousal support award at the initial consultation phase is practically impossible.

Duration of Spousal Support Award

The next question I get asked, however, is for how long spousal support is going to be paid.  The answer, again, is "it depends."  For contractual spousal support, the support will last as long as the contract says, or if there's a modification clause, then until the court terminates it.  For pendente lite support, the amount will last until the case is over.  For J&DR support orders, the support will last until the parties are divorced and a new support order is entered, or until it is modified by the court.  For Separate Maintenance and Divorce, it depends.

Until a few decades ago, spousal support was always permanent.  It was in place until a terminating event occurred, or the court modified it to $0.  Nowadays, permanent support is fairly rare.  Instead, the court considers the same factors discussed above when deciding the duration of support.  The question essentially again comes down to a) how long will the payee need this support before he or she can support him or herself (or should be able to support him or herself if he or she makes a reasonable effort to find employment), b) can the payor really afford to pay for that long, and c) is it fair to order the payor to pay for that long.

A rule of thumb many attorneys use is that spousal support will be ordered to last half the duration of the marriage (so 3 years for a 6 year marriage, for example).  This is just a rule of thumb, however, and should not be relied on outside the negotiating arena.  I've seen permanent support ordered for very short marriages, and only a year of support for longer marriages.  It really depends on the judge and the circumstances of your case.

Terminating Events

Now, you've heard me mention a few times "terminating events."  These are events that terminate spousal support, almost no matter what, even if the spousal support is supposed to be permanent, or for a longer defined duration.  These events, which are laid out in Virginia Code Section 20-109(A) & (D) are:  a) the death of either party, b) the remarriage of the party receiving support, or c) the party receiving support having cohabited with another person in a relationship analogous to a marriage for a period exceeding 12 months.  If any of these occur, spousal support terminates immediately, and if it is remarriage and the payee continues collecting after the remarriage, the payor can sue the payee to get that money back plus interest.

The only way for these to not terminate support is in the case of contractual support, the paying party can waive their right to use this provision.  Interestingly, while contracts are generally deemed to be unmodifiable by a court unless there is an express provision stating otherwise, courts have determined that the opposite is true for spousal support termination provisions.  In other words, the termination provisions are deemed to automatically apply to all contractual spousal support unless they are expressly waived.  This means that a contract that says "spousal support only terminates upon the death of either party" will still be deemed to terminate spousal support upon remarriage of the payee!  Instead, the agreement would have to state, specifically "spousal support will not terminate upon the remarriage of the payee."  Same for the other conditions.

Finally, "cohabitation in a relationship analogous to a marriage" is a complicated issue that warrants its own blog post some day, but it's worth noting that a "relationship analogous to a marriage" does not mean that a sexual relationship is either necessary or sufficient.  If the only part analogous to a marriage is sex, then a court is unlikely to find that the relationship qualifies.  If, however, the relationship is completely like a marriage except there is no romance and no sex, the court may still find it to be a relationship analogous to a marriage.  Just recently the Court of Appeals ruled that a woman who lived with a platonic female friend but shared chores with her, prepared each other's meals, etc. was in a "relationship analogous to a marriage" with her friend, even though they would be legally barred from getting married in Virginia!

Why Separate Maintenance

Now, you've also seen me talk several times about "separate maintenance."  You might be wondering why someone would file a Separate Maintenance case instead of for divorce.  Well, let's say a couple has an amicable split - no fault grounds for a divorce exist, but they cannot agree on a division of property or support.  The parties have to wait for a year of separation before they can even file for support.  Separate Maintenance allows one spouse to get support from the other while the parties are still married.  This is essentially an avenue for the spouse who needs support to get into the court when a divorce is not yet available.

There are cases, however, where a divorce may still be available but Separate Maintenance may be more desirable.  For example, many health insurance plans do not allow someone to cover an ex-spouse.  A Separate Maintenance Order keeps the parties married, but allows for support of the party needing support, and can require the payor party to keep the other party on his or her health insurance as well.

Conclusion

Spousal support law in Virginia is extremely complicated.  There is no clearly set way to determine how much someone should expect to pay or receive in any given case, and the law changes depending on the type of spousal support being sought.  Understanding the factors involved in determining spousal support, however, can begin to allow you to reach some level of planning.  If you anticipate needing or potentially paying spousal support, please feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consult with our office.  Your initial consultation is free for up to half an hour!