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Update (4/27/18):  Please note that much (in fact, pretty much all) of the below post is now outdated due to changes in the law.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!