No Post Today

Hi all.  I had been planning to go ahead and do a post today, but recovering from the holidays seems it's going to need to take priority, so I'll see you all again next week!

"If You Cannot Afford an Attorney..." - Court Appointed vs. Pro Bono Attorneys

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

Note:  This post was inspired by a question e-mailed to me in response to my post about what to do when you've been sued.

Introduction

It always takes me by a bit of surprise when I encounter people who do not understand in what situations someone who is poor can get a court-appointed free attorney, and in what situations they cannot.  Within the legal profession, the distinctions are fairly clear.  It is not until we start digging into the weeds of why potential clients or litigants think, incorrectly, that they can receive a court-appointed attorney that those of us within the profession start to understand.

The fact is there are two completely different kinds of "free" attorneys.  The first kind is court-appointed attorneys - these are attorneys the court picks to represent you, and the court pays the attorneys for their service (although usually well below the attorneys' regular billing rate).  The second kind is a pro bono attorney who volunteers to represent you (rather than being required to do so by the court), and (with very limited exceptions) is not paid by anyone for their work representing their pro bono client.  A court appointed attorney is provided to you in situations where you meet certain income qualifications and you are in a legal situation where you have a right to be provided an attorney.  A pro bono attorney can (depending on the requirements of his employer, not the court) represent you regardless of your income, and can represent you in any kind of case where you have a right to have an attorney.  Usually the confusion amongst potential clients and litigants come from learning someone else has a pro bono attorney, and not understanding the distinction between the two.

Right to Be Provided an Attorney vs. Right to Have an Attorney

So, given that distinction, you might wonder in what situations you have a right to be provided an attorney, and when do you have a right to have an attorney?  Well, let me explain what I mean first.  The right to be provided an attorney is the right to, if certain criteria are met, have a court pick an attorney and require that attorney to represent you for no charge to you (this may sound harsh on the attorney, but in reality the attorneys are chosen from a list that attorneys voluntarily join or from the local public defender's office).  The right to have an attorney is simply the right to be represented by any attorney, whether free or hired by you.

So, first of all note that the former is a subset of the latter.  In other words, every situation in which you have a right to be provided an attorney, you also have a right to have an attorney, so even if you cannot afford one you can pick your own attorney if you get a family member to pay them or you find someone willing to represent you pro bono.  The reverse is not true, however - there are many situations in which you have the right to have an attorney, but to not have the right to be provided an attorney.

While there are exceptions, you virtually always have the right to have an attorney.  In any legal predicament you are in, you can consult an attorney if you wish.  You also always have the right to have an attorney if you are in front of a court.  If you are in front of an administrative agency, however, you sometimes have the right to have an attorney represent you there, and sometimes don't - it depends on the administrative agency.

Of course, the big question this leaves is, when do you have a right to be provided an attorney?  Well, the right to be provided an attorney traces its roots to the seminal Supreme Court case of Gideon v. Wainwright, which ruled that the 5th and 6th amendment rights to counsel and due process are meaningless if someone who cannot afford such an attorney is thus denied such an attorney.  Despite its wide notoriety, however, Gideon v. Wainwright left unanswered many questions about exactly what kinds of cases warrant court-appointed attorneys, and it took years of litigation afterwards to establish the current rules.

The rule in Virginia in force today is that you have the right to a court-appointed attorney if you meet certain income requirements, and an adverse ruling might send you to jail.  In other words, you must be involved in a criminal case, charged with a class 2 misdemeanor or more severe (less severe misdemeanors are fine-only penalties), and if charged with a class 2 or class 1 misdemeanor, the prosecutor must not have waived his right to pursue a jail sentence.  You also can get a court-appointed attorney if you meet the income requirements and you are the subject of a civil contempt proceeding (for failure to obey a court order, for example).  That's really it - unless you are in those situations, you do not get a court-appointed attorney.

Guardians ad Litem

There is a category of attorneys appointed by the court that I have not mentioned yet - guardians ad litem.  I largely left them out because they are not "free" per se - a party or parties to the case will have to pay them - and because their appointment has nothing to do with the income of the parties to the case.  They are worth mentioning briefly, however.  A guardian ad litem is an attorney who has undergone extensive training and is appointed by a court to represent a person the court believes may not be able (either physically or mentally) to represent him or herself.  It is the guardian ad litem's job to ascertain her "client's" best interests, and represent those, regardless of what the subject of the guardian's representation actually tells the guardian he wants.  While this list is by no means exhaustive, guardians ad litem are generally appointed to represent children in custody cases, adult subjects of guardianship and conservatorship petitions, prison inmates who are defendants in a lawsuit, and other persons who are party to a lawsuit that the court believes are mentally and/or physically unable to represent their own interests in the case.  Note, however, that the last category is very hard to get a guardian ad litem appointed for.  I once observed a hearing where a person was asking for a guardian appointment, and she explained why she needed one so well that the judge concluded she was able to represent her own interests and denied the request!

How to Get a Pro Bono Attorney

So, if you realize now that you are not in a situation that qualifies for a court-appointed attorney, you might be wondering how you can get one of those pro bono attorneys.  The answer, unfortunately, is not simple - and can often take a good bit of searching.  Most areas have a local legal aid organization.  If they cannot on their own find you a pro bono attorney, they will usually at least be able to tell you where to look.  Beyond that, it can be a crap shoot.  If you have a large law firm near you, they may have a pro bono program, and it may be worth contacting them.  I do wish I had more thorough advice on this, but the fact is that oftentimes finding a pro bono attorney is more a matter of being in the right place at the right time than anything else - especially if you have a case in which your local legal aid organization cannot help you.

Conclusion

There are many situations in which you have the right to have an attorney but, even if you are very poor, do not have the right to have an attorney provided to you.  If you are not facing potential jail time, you do not have the right to have the court appoint an attorney for you.  If you are in a legal situation where you cannot afford an attorney, but you do not have the right to have one provided, contact your local legal aid organization and see if you can find a way to get a pro bono attorney.

Sitting at Home Collecting Checks - Vocational Experts and Support Payments

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

After nearly a month of doing landlord/tenant blog posts, I decided today I would break off and get back to other areas of law.  For today's topic I've chosen an issue that comes up with a great deal of frequency in the family law field.  What happens if someone asking for support, or paying support, knows that their income will affect what they pay or what they get, and so they decide to either quit their job, take a lower paying job than they should, or not pursue increased income opportunities that they reasonably should pursue?  The fact is, if you believe the other party in your case is doing this, you do have a way to either force them to take higher paying work, or get the court to treat them as though they are paid more.

The Law of Underemployment and Support

In a case involving child support, spousal support, or both, if either party is unemployed, or accused of being underemployed, it is that party's burden to prove that they are not.  That is - it is that party's burden to prove that their unemployment or underemployment is through no fault of their own.  There are many reasons that someone could be unemployed or underemployed through no fault of their own - they were laid off and have not had enough time to find a new job, they were a stay-at-home parent for 15 years by agreement of the parties and now have been out of the job market too long to get a new job, they are disabled, etc.  Nonetheless, it is frequently very challenging to prove to a court that your unemployment or underemployment is involuntary.  If you were fired for cause, if there are jobs that you can still do despite your disability, if you have not been applying for jobs frequently enough, etc., the court may very well find you voluntarily unemployed or underemployed.

So, what happens if the court does find that someone is voluntarily unemployed or underemployed?  In that case, the court has the right to "impute" income to the person.  What this means is that the court for calculating support will treat that person as though he or she earns more money than they actually do.  That, however, is where the simplicity ends.  This is because while it is the burden of the person who is under or unemployed to prove that this is involuntary, once the court finds it voluntary, it is the burden of the other party to prove what the voluntarily under or unemployed person should be earning.  If your ex is found to be voluntarily unemployed, but you cannot convince a judge of what he should be making instead, the judge will still treat him as though he earns nothing.

Simple Proofs of Earning Capacity

Sometimes there are easy ways to prove what a voluntarily under or unemployed person should be making.  For example if someone was fired for cause or quit without good reason just a couple months earlier, a judge will likely accept the person's prior income.  Similarly, if the person turned down higher paying jobs without a good reason for doing so, the court will likely accept that income.  But what happens when you don't have that situation?  What happens when someone was fired for cause five years ago, and has simply refused to look for new work ever since?  A judge certainly is not going to impute five year old income, so where do you go from there?

Vocational Experts

What may surprise people to know is that there is an entire class of expert witnesses out there who can speak to this exact issue.  These people are known as vocational experts, or vocational rehabilitation specialists.  These individuals have spent their adult lives studying job markets, job skills, etc. and are able to calculate earning capacity, along with the availability of jobs at that earning capacity.  A vocational expert will interview the allegedly involuntarily under or unemployed person, investigate their work history, and put together a report indicating whether the person is employable, and if so, what they should be making and how many jobs are available at that income level.

There are a very small number of these experts in any given area, so it is likely that your judge will know your expert.  Evidence presented by vocational experts is frequently accepted by judges and used to impute income.  Best of all, in the grand scheme of legal expenses, vocational experts are not all that expensive, running around $3,000 to $5,000 if they have to testify in court (considering the amount you could save on support or increase you could get in receiving support, the expert really pays for herself).

What If My Ex Doesn't Cooperate?

So, you will note that the vocational expert's work includes an interview with the person.  So, what if your ex simply refuses to be interviewed?  Fortunately, the General Assembly has recognized how important a part of the support process a vocational expert is, and in 2010 it adopted Virginia Code Section 20-108.1(H) which allows you to file to get a court order requiring your ex to cooperate with the vocational expert's evaluation.  Moreover, this provision allows you to seek the costs and fees associated with this process - a useful tool to hold on to in order to encourage cooperation.  As a result, your ex refusing to submit to the interview could result in a finding of contempt of court, which will only help your case.

Conclusion

If you are involved in a spousal or child support situation and your ex is voluntarily under or unemployed, the burden is on you to prove what he or she should be making.  Fortunately, vocational experts exist to help guide you through this process and come out with a number a court is highly likely to accept.  If you are in a support situation involving voluntary under or unemployment, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!

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!

Another one week hiatus from posting

Due to the combination of Thanksgiving and Channukah this year, my life is a little too hectic to do a blog post this week.  Look for me to be back with a new post next week, however!

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!

Avoiding Tenant "Self-Help" Part 1 - Tenant's Assertions

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.

Update:  The Landlord/Tenant portion of the Code of Virginia was renumbered in 2019.  Tenant's assertions are now governed by Va. Code Sec. 55.1-1244 but the rules remain largely the same.

Introduction

Most of my regular readers will remember my post from several months ago talking about how it is improper when in a landlord/tenant dispute to engage in self-help.  Self-help, again, is what happens when, without a signed agreement with the other party, and without court approval, you take action altering the terms of your lease (a non-exhaustive list of examples as a tenant is withholding rent or fixing damage yourself, while for landlords can be changing the locks, cutting off power, etc.).  If you engage in self-help, even if you are legally in the right, the consequences can be very severe - heavy imposition of damages, injunctions, attorneys' fee awards, etc.  As a result, it is important you avoid self-help.

Since posting my "don't do self-help" post in July, however, I've gotten numerous questions about what the alternatives are.  Since the alternative is generally clear for landlords (legal eviction proceedings), nearly all the questions I get, and nearly all the examples of improper self-help I see, involve tenants.  While I do present these alternatives in my July post about self-help, my presentation is short, and probably not very helpful.  As a result, starting this week, I've decided to start a multi-part series discussing each of the options available to a tenant whose landlord is in active violation of the lease.  Today's post will discuss a legal proceeding known as a "Tenant's Assertion."

VRLTA vs. Common Law/Chapter 13 Lease

Regular readers will again remember that it makes a substantial difference in many areas of landlord/tenant law whether your lease is covered by the Virginia Residential Landlord and Tenant Act, or if it is a Common Law/Chapter 13 lease.  While it is still true in this area of landlord/tenant law, this is not nearly to the extent that it used to be.  Prior to 2011, the only remedy a non-VRLTA tenant had to a breach of the lease by the landlord was an after-the-fact lawsuit for damages.  The law changed in 2011, however, and now, while not identical, the rights of tenants regarding a tenant's assertion are largely similar.  In fact, the only difference that seems relevant to me is that a non-VRLTA lease could theoretically waive the tenant's right to pursue an assertion (I say only theoretically because I am aware of no court case to this point directly dealing with that issue) while such a provision would be barred in a VRLTA lease by Va. Code Section 55-248.9(A)(1).

What Is A Tenant's Assertion?

So, before getting started, you might be wondering what a tenant's assertion actually is.  This is an action where the tenant "asserts" that the landlord is in active violation of the lease or the law, and that a remedy is necessary in order for the tenant to properly enjoy his rights to possession of the property.  A tenant's assertion is primarily for people who either want a problem fixed without having to move out of the property, or want their lease actively terminated by the court, instead of engaging in the notice termination (which I will discuss in part 2) and then potentially being sued by the landlord.  The major disadvantage is that a tenant's assertion, under either VRLTA or common law leases, usually cannot win attorneys' fees, while other actions sometimes can.  I generally recommend a tenant's assertion to tenant clients who like their home except for the issue causing their complaint, cannot find a new place to rent, or just cannot stand the thought of the uncertainty that comes with a notice termination.

Pre-Conditions to a Tenant's Assertion

The law for tenant's assertions is laid out for non-VRLTA tenants in Va. Code Section 55-225.12 and for VRLTA tenants in Va. Code Section 55-248.27.  You will notice the two sections are very similar but have some differences.  Both sections include the following required pre-conditions to a tenant's assertion:

• A condition must exist on the property that allows an assertion to be approved.  This condition must be a "material" violation of the lease or of the law, a fire hazard or serious threat to the life, health or safety of occupants, a lack of heat or hot or cold running water, a lack of light, electricity or adequate sewage disposal facilities, an infestation of rodents, or the existence of paint containing lead pigment on surfaces within the dwelling
• The landlord must have been "served" with a written notice from the tenant or a state agency of the condition and failed, within a reasonable amount of time after that service, to fix the condition (note that more than 30 days is presumed unreasonable)
• The condition must remain up to the day of the trial

Additionally, the VRLTA has these provisions (which the common law assertion does not):

• The "condition" on the property cannot be a rodent infestation if the property is a single-family dwelling (namely a detached home or townhouse).
• Va. Code Section 55-248.4 allows notices to be served simply by first-class mail as long as you also simultaneously swear out a certificate that you've sent the mail.  The non-VRLTA tenant needs to serve notice either by formal service, or by certified mail (unless he can show proof that the landlord actually received the notice).

If those pre-conditions are met, however, you can go ahead and file your tenant's assertion (note that if you file the assertion before giving the landlord a reasonable time to remedy under the assumption that any trial will occur after such amount of time has elapsed, you are in violation of the statute and could be sanctioned by the court).

While Assertion is Pending

While your tenant's assertion is pending, you must continue to pay your rent in full.  Instead of paying it to your landlord, however, you must pay it to the court.  If you don't pay your full amount of rent to the court within 5 days of its due date your assertion will be dismissed, the money you've paid to the court will be released to the landlord, and you start over again.  If you do, however, your money is held in escrow.  This is the true advantage of a tenant's assertion over an after-the-fact lawsuit.  If you win damages, your escrow gives you a source from which you can collect immediately, instead of having to engage in post-judgment collections.

Trial

Somewhere around 5 weeks after filing your assertion, assuming it is contested, you will have a trial.  It's important to note that both the VRLTA and non-VRLTA assertion statutes allow as a complete defense a landlord to say "the condition's been fixed."  This means, if the landlord fixes the problem while the assertion is pending, your assertion will lose, even if it was proper at the start!  The remedy to this is to try to convince the judge to let you amend your case to a warrant in debt for damages, then still seek any monetary damages you may have suffered (you may even be able to still pull that money out of escrow).

If, however, the condition does remain as of the date of trial, you must prove the following things in order to win your assertion:

• That the condition is, in fact, of the type listed in the statute (material noncompliance with lease or law, hazard to health and safety, etc.),
• That the condition still exists,
• That notice was properly given to the landlord, or that the landlord had actually received notice even if not properly given,
• That the landlord was given a reasonable amount of time to remedy the problem before the assertion was filed, and
• That you have paid all rent, in full, into the court while the assertion has been pending.

If you successfully show all of those things, you will win, and the judge will grant you one, some, or all of a myriad of possible remedies, which include, but are not limited to:

• Terminating the lease,
• Dividing some or all of the money in the escrow account between the tenant and/or landlord as the court sees fit,
• Ordering the escrowing of rent continue until the repairs are complete,
• Abating rent prospectively and/or retroactively,
• Ordering money in escrow be paid directly to a contractor in order to repair the property,
• Referring the matter to a state or municipal agency for investigation, and
• Ordering escrow funds be used to pay a mortgage in order to prevent foreclosure.

After Trial

It is very rare for a trial to end a tenant's assertion unless the landlord prevails.  Instead, some form of continuing of the escrow account usually occurs.  If this is the case, no escrow money can be distributed without a hearing, so there may be occasional hearings going forward to decide what to do with escrow money, or if a party is not following the terms of the order.  Perhaps the most serious issue, however, is that if the condition is not remedied within six months of the date the escrow account was established, the court is then required to return to the tenant all money then in the escrow account (unless the landlord can prove he has made a reasonable effort to finish the repairs).  When that happens, though, the escrow is not terminated, but a new six month period begins.

The assertion really does not end until the condition is repaired and/or the lease has ended, and all money in escrow has been distributed.

Conclusion

When a landlord is in violation of his lease obligations, a tenant's assertion is a very robust and flexible means for a tenant to assert his or her rights without risking a lawsuit from the landlord, and without necessarily having to terminate the tenancy.  If you are in a landlord/tenant dispute that already involves, or may require, a tenant's assertion, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to discuss representation.  Our initial consultations are free for up to half an hour!