Why The Virginia Residential Landlord and Tenant Act Really Matters

As always, before reading today's 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.

UPDATE:  Please note that, as of July 1, 2014, one or more statements made in this post will no longer be accurate due to changes in the law.  Please see my blog post of April 24, 2014 for details.

Update (4/27/18):  Please note that much (in fact, pretty much all) of the below post is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

If you are a regular reader of my blog, it's not news to you that we have two entirely separate systems of law that govern residential leases in Virginia - the Virginia Residential Landlord and Tenant Act ("VRLTA") and the Common Law/Title 55 Chapter 13 (shortened here to "common law" for simplicity).  I've discussed repeatedly that there are many differences between the VRLTA system and the common law system for leases, so it is very important that you know which law your lease falls under.  In fact, this is so important, that one of my very first blog posts (specifically my third post) explained in detail how to tell which type of lease you have.  I'm glad I did that now - that particular blog post remains by far my most-viewed post (it has been viewed about the same number of times as my other 43 posts combined), and has been the source of nearly every client inquiry I have received from this blog.

In addition to providing that explanation, I've also occasionally explained how the difference actually matters.  My original post about the differences between the two explained what I consider to be the most important difference - the VRLTA forbids you from waiving your rights as a tenant, while the common law does not.  But I've also covered other important differences.  My post on security deposits covered the fairly extensive differences between the VRLTA and common law in handling security deposits.  In my post covering notice termination by a tenant, I covered the different ways the VRLTA and common law handle your security deposit in such a case.  Today, however, I want to cover some of the other differences that are important to know about, but which don't necessarily warrant their own post.  There are too many to do in one post, however, so I anticipate having at least one more post on this topic in the future.

Notice Termination to a Tenant

Many people will remember that I once called the VRLTA a "double-edged sword," pointing out that it provides advantages to both a landlord and tenant, even though it is generally regarded as a pro-tenant law.  Notice termination to a tenant is one of those areas which help a landlord.

If a tenant breaches a lease by doing something other than not paying rent (so, for example, keeping a pet on the property when pets are forbidden), the VRLTA, and specifically Virginia Code Section 55-248.31 allows the landlord to provide a notice termination, or 21/30 notice, of his own to the tenant.  There is no equivalent provision in the common law or Title 55, Chapter 13.  In other words, a common law landlord could be stuck.

Now there is a way around this for a common law landlord - the lease itself could provide the landlord with a way to terminate the tenancy in the case of a non-monetary breach.  When I write leases for landlords in common law lease situations, I usually just copy Section 55-248.31 in large part and use the same 21/30 notice set-up.  You don't have to do this, but due to the VRLTA this is something courts are very familiar with, so it can be advantageous to use a set-up courts already know.

If your common law lease contains no provision, however, for non-monetary breaches, all that can be done is a lawsuit for damages - not an eviction - so if you are a landlord, this is something to pay a great deal of attention to.

(Note:  I've had another attorney tell me that I am wrong about the lack of a 21/30 notice option for landlords in the common law, to which I asked him to show me the code section and/or common law case backing up his position.  He still hasn't, and until someone does, I am going to stand by my position, as I have found no code section and no caselaw saying otherwise)

Interest on Security Deposit

As discussed in my previous post on security deposits, the common law has nothing to say about security deposits, but the VRLTA does.  One of the interesting VRLTA provisions about security deposits is Virginia Code Section 55-248.15:1(B), which deals with long-term security deposits.  Recognizing the time-value of money, the General Assembly decided that if a security deposit is held for a long period of time, it should accumulate interest to the benefit of the tenant.  As a result, any security deposit held for more than 13 months in a VRLTA lease, must accrue interest according to the law, to be credited toward the security deposit.  There is no such requirement for common law leases unless one is written into the lease.

While this sounds great in theory, the law itself is rather stingy.  The interest rate is set at "four percentage points below the Federal Reserve Board discount rate as of January 1 of each year."  Well, as you probably know, we've been in a recession for a while, and the Fed cut the discount rate.  In fact, the discount rate has been at or below 4% since mid-January of 2008, so it's been more than five years since the VRLTA actually required any landlords to apply interest to a security deposit.

Rules and Regulations

Another area where the VRLTA is advantageous to landlords is in the area of Rules and Regulations.  The VRLTA in Virginia Code Section 55-248.17 allows a landlord to make rules and regulations regarding a tenant's use of the property so long as the rules meet six requirements:

1. The rules must be designed to "promote the convenience, safety or welfare of the tenants in the premises, preserve the landlord's property from abusive use or make a fair distribution of services and facilities held out for the tenants generally."
2. The rules must be reasonably related to their purpose.
3. The rules must apply to all tenants equally, or at least in a manner that is fair.
4. The rules must be clear, not vague.
5. The rules must not be a means of the landlord to avoid the landlord's regular obligations.
6. The tenant(s) must actually be given a copy of the rules.

Properly adopted rules are then treated as part of the lease, and as such a breach of the rules is treated as a breach of the lease.  The advantage to having this allowance is that if problems arise, the landlord can address them with rules instead of a new lease.  The biggest area where rules become an advantage, in my experience, is as a means of resolving conflicts between tenants (or at least keeping the peace between them).

Again, this is a right the common law does not include.  It can be included in a common law lease, however, and then that right becomes applicable.

"Self-Help" Exception

The last topic I want to discuss in today's post is one I am very hesitant to raise because it involves a provision of the VRLTA that presents a substantial amount of risk to a tenant.  Nonetheless, it is there, and I think it does need to be covered.  Most readers are well-acquainted by now with my tirades against the use of "self-help" in a landlord/tenant dispute, such as a landlord changing the locks or a tenant withholding rent.  Well, the VRLTA has an exception.

Virginia Code Section 55-248.25 creates an affirmative defense to an eviction action for nonpayment of rent in the case of a landlord's noncompliance with the lease.  The actual mechanics of what a tenant must prove to use this defense closely mirrors a tenant's assertion, but the remedies to the tenant for a win are more limited.  The court could reduce the amount the tenant owes (but then the tenant still has to pay the amount owing within a reasonable time), the court could decide the lease should be terminated and still order immediate possession to the landlord, or the court could refer the matter to a municipal agency.

I strongly discourage any tenant from trying to take advantage of this provision.  The main reason is that it is fraught with perils.  First, if you are not positive that you have a VRLTA lease, the provision may end up not even applying, and you will get evicted.  Second, if you don't meet all the pre-conditions (proper notice to the landlord, for example), you cannot use this defense, and you will get evicted.  Third, even if you meet all the preconditions, you have to pay the money into the court's escrow, or else you cannot bring the defense and you will get evicted.  Fourth, you have to prove that the landlord is in violation of the lease, and if you fail, you will get evicted.  Fifth, even if you succeed, the court could decide on the remedy of terminating the lease, and then you will get evicted.

If you are going to go through the trouble of providing notice, preparing a case, and paying your rent into escrow with the court, do yourself a favor and just file a tenant's assertion.  There are more remedies available, and if you lose, you will not get evicted.  Nonetheless, this provision does exist, and no similar provision exists for common law leases, so I thought it did need to get mentioned.

Conclusion

While I continue to believe that the most important difference between a VRLTA lease and a common law lease is the VRLTA's prohibition on a lease waiving a tenant's rights, there are other important differences too, and today's post has covered some of them.  If you have any questions about the rules that apply to your lease, or if you are engaged in a dispute with your landlord or your tenant, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss your case.  Our initial consultations are free for up to half an hour!

Living the Not So Good Life - Retirement and Child/Spousal Support

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

Update (4/27/18):  Please note that some of the information in the blog post below is now outdated due to changes in the law.  Please see my 2018 Relevant Changes in the Law post for details.

Introduction

If you go back 100 years or so, when our modern laws about spousal support (then, of course, just known as alimony) and child support were starting to emerge, "retirement" was a vague, largely unheard of concept.  Most people were either wealthy, or worked until they died.  As a result, there was not much of a need for our support laws to take retirement into account.

Of course, this has not been the case for some time now, and the vast majority of workers expect to retire some day (usually with a dream that involves some combination of travelling and beaches).  But what about people who have children later in life, and hit retirement age while still owing child support?  Or what about people who are ordered by a court to pay long-term (or even indefinite) spousal support?  Support orders are supposed to take into account the life circumstances of the parties, including their incomes, so how does support change when you hit retirement?

In fact, retirement is a complicated issue in support law - but often one that leaves retirees or those desiring to retire greatly disappointed.  I hope to address those issues here.

"Material Change"

The first rule to remember is that if you already have a child support or spousal support order, it cannot be modified by a court unless the party seeking the modification proves that there has been a "material change in circumstances" since the last time a support order was entered.  A material change is generally seen as some change in circumstances that directly affects the factors that go into determining support (income, expenses, age of children, etc.) which is not simply a minor change (for example, a change in income of $5 per month).  However, it is important to note that there is no material change in circumstances, legally speaking, if the only "material change" is one brought about by the "voluntary conduct" of the party seeking the change.

Now, there are two key distinctions to make to that last rule.  First, the conduct must be voluntary for that rule to kick in.  Something beyond your control (your car gets totaled in an accident that wasn't your fault so now you have the expenses of a new one, you got laid off from work, etc.) is not voluntary, so it still counts as a material change.  Second, if you are the party seeking the change, it must be your voluntary conduct that caused the material change.  If the other party's voluntary conduct caused a material change (such as switching to a new, higher paying job), you can still file.

So, how does this apply to retirement?  Well, it generally means that retirement is not, in and of itself, a sufficient reason to get support changed.  Courts presume you would not retire if you have not lined up enough money to pay your bills (including your support bills) in retirement, and as such treat retirement as voluntary conduct - and not a material change in circumstances.  If, however, you are forced into retirement (for example, your company has a maximum age, you are given the option of retirement in lieu of termination, you need to retire due to health, etc.), then that can constitute a material change.  If you just on your own, however, decide you are of the age where you want to retire, that will not count as a material change, and if that is the only material change you can allege, then you will not be able to modify your support.

Voluntary Underemployment

Now, many people who retire frequently will find other material changes to get their foot in the door for modification.  If it's been many years since the last support order, it's very likely your needs will change.  In fact, the Division of Child Support Enforcement (note, this is just DCSE, not the courts) considers the passage of 3 years' time to automatically be a material change, and while the courts do not follow the same rule, if it's been at least 3 years, the odds are pretty good you can find something.

If you do get your foot in the door, however, don't think you are walking down easy street.  As I have discussed before, when considering your income, you have the burden to show the court that you are not "voluntarily" unemployed or underemployed.  If you do not meet that burden, the court will assign to you the income it thinks you should be making.  If you retired voluntarily, the odds are the court will assign to you the income you would be making if you were still working.

However, voluntary unemployment is a one-way street.  "Income" is considered to be income from any source, and if, between your pension, withdrawals from a 401(k) and/or IRA, and other forms of non-wage income you actually make more money in retirement than you did working, your higher current income will be used.

Because of how the court views retirement as voluntary conduct, and voluntary unemployment, it is very unlikely that an individual can actually get his or her support obligations cut (or increased, for that matter, if you are the one receiving support) due to retirement.  There are, however, two big exceptions to this rule.

Exception 1:  Split Pensions

If you work in a job that provides a pension, and some of that work occurred while you were married, chances are your ex-spouse is entitled to some of that pension.  Once you retire and start receiving your pension, your ex-spouse will start receiving his or her portion of your pension as well.  Once that begins, your ex-spouse will now have more income, which produces both a material change, and a basis to reduce support.

Exception 2:  Agreement

It is not uncommon for an agreement which establishes indefinite spousal support to also have a retirement clause.  Remember that when spousal support is set by signed agreement, that agreement is binding and not modifiable by a court.  As a result, if the agreement says something different than the above regarding retirement (for example, "Retirement after age 62 is automatically considered involuntary"), the terms of the agreement win out.

Planning for Retirement Support

Given the above, it is important then to plan for support payments in retirement.  You should presume that when you retire, you will have to continue support at its current levels (except that child support will terminate when the child becomes an adult), and include these costs in your retirement financial planning.  Remember also, however, that there comes a point when retirement is no longer voluntary.  If you retire at age 60, but start having physical ailments that would prevent you from working at age 65, then that could be a material change in circumstances - your unemployment had gone from voluntary to involuntary because if you were still working you would have had to retire.  As such, you will not be stuck forever, but as long as your health remains good, you will still have to pay your support.

This is, in my opinion, another reason why when negotiating spousal support you should be very hesitant about ever agreeing to indefinite support unless there is something like a retirement clause.  The chances are, when you have indefinite support, you will be paying long after you retire.

Conclusion

Retirement presents a panoply of challenges in regards to legal support obligations, most of them not very favorable to the retiree.  If you are involved in a support situation and are considering retirement, retired, or the other party is retiring, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation to discuss the matter.  Our initial consultations are free for up to half an hour!

This Week's Post Cancelled Due to Inclement Weather

For those of you not paying attention, it's snowing out there!  My office is closed, my son has a cold, and I'm snowed in.  These things have combined to make today a bad day to do a blog post, so I'm afraid I'm going to have to say no post this week.

Stay tuned, however.  Next week I'm planning to cover the controversial topic of how retirement affects child and spousal support obligations.

Legal FAQ Part IV

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

Well, it's Thursday and I haven't had time to put together a post yet this week.  Now that I sit down to do so, I'm realizing my time is short, and I am again having a little bit of writer's block.  Now that I realize I haven't done a "Legal FAQ" since October, I figure I'm due for one.  As with my previous ones, today I will answer a few questions that I am frequently asked by friends, family members and clients about the legal system, but which, in my opinion, don't warrant a full blog post on their own at this time.  You can find my previous FAQ's here:

FAQ Part I
FAQ Part II
FAQ Part III

Will Amanda Knox get extradited to Italy?

I've been getting this question a lot recently from friends who follow the very controversial, very public Amanda Knox case.  Now that she's been convicted again, presumably our extradition treaty with Italy would kick in.  In my opinion, however (and in the opinion of most legal experts I've seen interviewed), Amanda Knox is in no danger of being extradited to Italy - at least not from the United States.

While we do have an extradition treaty with Italy that would seem to require us send her to Italy, to some extent treaties are similar to any other law - they must be constitutional.  Further, there are two ways to challenge the constitutionality of a law - facial challenges, and "as applied" challenges.  An "as applied" challenge says "this law is constitutional on its face, so the law can survive, but as applied in this particular case, the application of this law is unconstitutional."  I believe Amanda Knox has, essentially, a bullet-proof "as applied" challenge to the extradition treaty.

Essentially, while the treaty itself is constitutional, using it in her case would not be.  This is because sending her to Italy would subject her to a violation of her rights under the U.S. Constitution.  Specifically, the 5th Amendment bars someone who has been acquitted of a crime from being re-tried for that same crime (known popularly as "double jeopardy").  While double jeopardy is actually a very complicated area of constitutional law, it's applicability here is pretty clear.  Knox was tried and acquitted by a jury, then re-tried and convicted.  That is a violation of double jeopardy, and as such, Knox could make a strong challenge to any extradition effort.  So strong, in fact, that I believe the State Department will not even try to extradite her.

Now, I would note that Knox is protected from extradition from the U.S.  If she travels to another country that has an extradition treaty with Italy (for example, almost any E.U. country), and that country does not have the same protections, she could be extradited from there.  As a result, unless her conviction is overturned, Knox will have to spend the rest of her life being very careful about where she travels if she ever leaves the country.

Why doesn't Congress ask the Courts if a law is constitutional before it's passed?

Over the years, I've gotten a few questions about this one - and it makes some sense.  Why do we have Congress pass laws, put them into force, and possibly actually affect people before there can be a constitutional challenge?  If a law's constitutionality is in question, why not just ask the courts to rule on it first?

Well, the answer to that lies in the Constitution itself.  Article III, Section 2 of the Constitution gives our courts the authority to decide various forms of "cases" and "controversies."  This is, fittingly enough, known as the "cases and controversies" doctrine.  In other words, for our federal courts to take action, they are constitutionally required to have before them an actual "case" or "controversy," meaning a live dispute between two or more parties.  This has long been held to mean that the federal courts cannot issue "advisory opinions," which is what answering a question about a hypothetical law would be.

Interestingly, many other doctrines you may have heard about also arise from the "cases and controversies" doctrine.  These include "standing" (the requirement that the party bringing an action actually suffers harm from the alleged breach of law), "mootness" (the requirement that the issue must be ongoing), and "ripeness" (the requirement that the issue must have already started to cause problems).  These doctrines also come from the perspective that if standing or ripeness is lacking, or an issue is moot, then the court is really just issuing an advisory opinion.

Finally, I would note that this only applies to federal courts.  Different states have different rules, and there are several states that do allow advisory opinions - and in those states the state legislatures frequently apply to the state supreme court for advisory opinions on hypothetical laws.  Virginia is not one of those states, however - Virginia also has a state constitutional "cases and controversies" requirement.

As a tenant, how much money will I owe if I just break my lease early?

This is another question I hear often from tenants who don't have a problem with their landlord, but have a situation that has caused them to wish to move before their lease has ended.  The answer to this question is one that depends almost entirely on which law applies to your lease.

As an initial point, most contract law includes a doctrine known as "mitigation of damages."  This requires that when one party to a contract becomes aware that the other party intends to breach the contract, or has breached the contract, the aggrieved party must take all reasonable action to reduce the damage that party suffers from the breach.  Then, whether the aggrieved party has met his obligation or not, the breaching party is only liable for the damage the aggrieved party would have suffered if he mitigated his damages properly.  As a quick and dirty example, contractor agrees to build a home, with payment of 1/3 before work begins, 1/3 when work is halfway done, and 1/3 when work is finished.  The first 1/3 is paid, but when work is halfway done, the buyer refuses to pay the second 1/3.  The contractor cannot then finish the home and sue for the full 2/3 remaining.  Instead the contractor must stop work, and make a reasonable effort to find new work to make up the anticipated money he'd have earned to finish the house.  As a result, the contractor can only sue for the 1/3 he was owed at the halfway mark, plus any difference between what he would have earned for the final third and what he actually earned with his replacement work.

So, it would seem this should apply to leases as well.  After all, rentals are contracts, and so a landlord would seem to be required to find a new tenant and you should only be responsible for rent between when you leave and when a new tenant is found.  It's not that easy, however.  For more than a century, the common law in Virginia (as it had been in most states) held that because a lease involved the conveyance of land, even on a temporary basis, the full contract had to be honored.  As a result, a landlord had no obligation at all to mitigate damages, and as such, a tenant would be responsible for the full amount of rent owed to the end of the lease.  The only exception would be if the landlord on his own mitigated damages and got a new tenant, then the old tenant's obligation ended there.

Well, if you're a regular reader of this blog, you probably know where I'm going with this.  If you want to know the current rule, you need to know whether or not the Virginia Residential Landlord and Tenant Act applies to your lease.  My post breaking down figuring that out can be found here.  If the VRLTA does not apply to your lease, then the old rule is in force, as nothing in Virginia Code Title 55 Chapter 13 changes the common law rule.  If the VRLTA does apply, however, then Virginia Code Sections 55-248.33 and 55-248.35 apply.  These two code sections provide that a landlord is required to mitigate damages after a lease is breached.  In these situations, you can expect to pay rent for the amount of time it would take for a reasonable effort to find a new tenant (probably 1-2 months), plus the costs of re-renting (advertising, cleaning up, showing, etc.).

Conclusion

While I realize I've handled fewer questions than my previous FAQ's, my answers seem to be longer than usual.  As a result, I'm going to wrap it up here.  As usual, if you have a legal issue you think I can help you with, please feel free to call (703)281-0134 or e-mail sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!