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
Having just returned from vacation, my work has been somewhat intense. I have some free time today, and tomorrow looks like I will have none, so today seems like the right day to do a blog post. Doing a blog post on short notice, however, usually winds up with an FAQ, but I realized that questions I have been getting about previous posts of mine have reached a sufficient quantity to warrant their own post.
So, today I will be answering questions that I have received by e-mail or comment about past blog posts - questions that I feel deserve an answer that everyone can see, but which do not warrant a full blog post on their own. Today's topics include: Landlord "self-help" in non-VRLTA leases, Security Deposits held past 45 days in VRLTA leases, diplomatic immunity clauses in leases, retaining payment records, and the impact of the new child support guidelines on existing orders.
So, sit back, relax, and learn from the questions raised by others!
"You have said (in fact, repeatedly) that landlords for residential leases cannot engage in 'self-help' by changing the locks on an unpaying tenant, but in fact have to get a court order before they can evict. However, I just saw an online article/received a written pamphlet saying a landlord can 'self-help' if their lease is not governed by the Virginia Residential Landlord and Tenant Act (VRLTA). Can you prove that you are right? And if so, do you know why the online article/pamphlet would say otherwise"
I've gotten this question a very large number of times, so I figured it was time to set the record straight. First of all, if you are new to my blog, it might be worthwhile to familiarize yourself with when the VRLTA does and does not apply.
The really short answer to the two questions is yes, and yes. The slightly less short answer to the first question is to look at Virginia Code Section 55-225.1. The slightly less short answer to the second questions is the online article or pamphlet was written before July 1, 2012 (or, possibly, before July 1, 1994).
Ok, so here's the longer answer. Under the common law, which is what applied to all residential leases before the VRLTA was adopted in the 1970's, and which still applies to all non-VRLTA residential leases today, a landlord was, in fact, allowed to self-help. A landlord could protect himself from potential liability by going to court first, and could also get the assistance of the sheriff's department by going to court first (for example, if the tenant was a risk for violence), but the landlord did not have to go court first. As you probably remember from civics, however, "common law" can be changed by statutes and legislation. The VRLTA was a big change to the common law for the leases it applied to. Nonetheless, for non-VRLTA leases, the common law remained (and still remains) the primary force influencing how these leases are governed.
Nonetheless, stories of abusive landlords became prevalent, and in 1994, the Virginia General Assembly passed Code Section 55-225.1, which made the default rule that a landlord couldn't self-help. So, end of story, right? Not quite. See, as I've mentioned several times before, the biggest difference between the VRLTA and the statutory laws that govern non-VRLTA leases is that the VRLTA makes invalid and unenforceable any part of a lease that waives tenants' rights under the VRLTA. Chapter 13 of Title 55 of the Code of Virginia, where most laws governing non-VRLTA residential leases are found, has no similar provision. So, even after the 1994 change, landlords were updating their leases to waive the applicability of Code Section 55-225.1. This meant that landlords still could "self-help" in a non-VRLTA residential lease, even after the 1994 change.
This changed in 2012. In 2012, the General Assembly amended Code Section 55-225.1 to add a sentence reading "A provision included in a rental agreement for a dwelling unit authorizing action prohibited by this section is unenforceable." As a result, since this law went into effect on July 1, 2012, all new residential leases entered into on or after that date which are not governed by the VRLTA cannot waive the protection of Code Section 55-225.1, thus residential landlords are now forbidden from ever engaging in "self-help."
"You said that a security deposit in a lease under the VRLTA must be returned in full if the landlord has failed to provide an itemized list of deductions within 45 days of the end of the lease. My landlord didn't give me an itemized list within 45 days, but I also know that there was enough damage to the property that the landlord would be able to keep almost all of my deposit. Is it worth pursuing getting the full amount back if my landlord can turn around and counter-sue me for the damage?"
This is actually a tricky question because the answer is not clear-cut. The VRLTA makes quite clear in Code Section 55-248.15:1 that failure to provide you with the itemized list (unless the failure was not the landlord's fault) within 45 days entitles you to a full refund of the deposit. The only exception listed is that if you have unpaid rent owed to the landlord, the amount refunded to you will be reduced by that amount. There is, however, also a provision that states "This section shall not preclude the landlord or tenant from recovering other damages to which he may be entitled under this chapter." To add to the confusion, all of this is basically located in one giant text paragraph in the Code.
So, in my experience, most judges interpret this section as follows: Since "this section" talks about damages from property damage, the "other damages" referred to does not include property damage. As a result, the failure to comply with the 45 day notice not only entitles you to a refund of the security deposit, but actually also waives the landlord's right to claim from you any property damage at all. This is, in my opinion, the only logical way to read this section - as the ability of the landlord to counter-sue for the property damage (or to sue you years later for it) would seem to defeat the whole purpose of the 45 day rule.
Nonetheless, the lack of clarity in the Code provision means I cannot say this with certainty. As a result, it likely is worth pursuing (especially since you are supposed to be reimbursed your reasonable attorneys' fees in such a case), but I cannot guarantee it.
"You said that a diplomat renting property cannot be forcibly evicted due to the applicability of diplomatic immunity. You further pointed out that a diplomat cannot waive diplomatic immunity - only his government can - and that a request to the government to waive the immunity of a dead-beat diplomat is likely to fail. I just handled a lease with a diplomat which includes a provision nullifying the lease if the diplomat does not provide the landlord with notice from his Embassy that his diplomatic immunity has been waived for this lease - it sounds great in theory, but considering your post, how am I going to enforce it? Once he moves in, aren't we stuck with him whether the lease is 'null' or not?"
Diplomatic immunity clauses like the one referenced above are very common in areas with large numbers of diplomats - especially in leases drawn up by professionals (I include them in every lease I draw up for a landlord client). But, considering my post about diplomats, how are these enforceable? Well, there are some important things to remember.
A diplomat requesting his own immunity be waived is very different from a spurned landlord making the same request. If the diplomat's securing the housing of his choice depends on it, the diplomat's government likely will grant the diplomat's request to waive his immunity.
The broader question, however, is how to enforce this clause. After all, as the questioner correctly notes, once the diplomat moves in, it's his home, inviolability kicks in, and he cannot be evicted no matter how "null" the lease now is. The answer, then, should be obvious - this provision is enforced before the tenant moves in. You do not "deliver possession," meaning you do not give the tenant the keys, access to the property, etc., until after the tenant has complied with this provision. This is because before the tenant moves in, it is not his home, there is no "inviolability," and you can keep the tenant off the property.
So, in other words, this is a pre-possession requirement. The lease is nullified if the condition is not met before the tenant ever moves in. That is how these provisions are enforced.
"You said that when you are accused of non-payment of something, the claim that you actually have paid is an affirmative defense and on the defendant to prove - thus meaning you should retain all records of payment. How long should I keep these records?"
So, the easy answer is to say "forever," but that's both unrealistic and probably foolish. The odds are you will never be challenged on a payment you made, so keeping stacks of paper is silly. My more practical recommendation is to follow the relevant statutes of limitations, and add a year. If your payment was due to a contract, keep your records of payment for six years. If your payment was due to a court judgment, keep your records for 21 years. Those are the two basic areas where non-payment gets challenged. If, however, your payment was due to some kind of injury you caused someone else, and you tried to compensate them in advance without having a settlement, keep those records also for at least six years.
In terms of child support and spousal support - unpaid child support and spousal support is treated as a judgment in Virginia. So, those payment records should also be retained for 21 years.
Also, get to know your bank's record retention policy. Many banks don't maintain statements for more than 5 to 7 years, so if you need to hold records for longer than that amount of time, get those statements in paper.
"You said that this year, the General Assembly has modified the child support guidelines. How does this effect child support orders already in effect on July 1, 2014?"
Child support orders already in effect will not be affected by the change - they remain in effect as is. That being said, the Virginia Court of Appeals has held that when laws like this change, if they would cause a "significant" change in support, then the change in law can be considered a "material change in circumstances" which allows either party to file a motion to get the child support modified. The word "significant" has never been defined by the court, but I think a reasonableness test would likely apply to whether or not something is significant. I will say that in early July I offered all of my current clients paying and receiving child support the opportunity to do a free recalculation of what their support would be under the new law (if the numbers used to calculate the existing order remained the same) to determine if it was worth filing a motion. The average recalculation I did showed a change of $3 per month (there are no 0's missing, that really is just the number three) and I had only one client show a potential change greater than 2%. With that in mind, I would not expect the new law to provide a material change of circumstances to most people. If, however, your case is one where the combined income of both parents was/is greater than $10,000 per month but less than $35,000 per month, that is where a significant change is most likely, since that area is where the biggest changes to the guidelines can be found.
Conclusion
I actually have a few more I'd love to cover, but this post is getting kind of long, so I will wrap it up here and maybe do a similar post in the future. As always, I welcome questions (and challenges!) either by e-mail or by comment to my blog posts - this truly has been an exercise I have greatly enjoyed. If you are interested in retaining my services, 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!
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