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!