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  That being said, much of the caselaw on this point is now outdated because prior to 2011 a lawsuit like this was the only remedy available to non-VRLTA tenants.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!